You’ve run a criminal history check and found something! What do you do now? Or rather, what can you do now?
Before you discuss your employee’s criminal record with anyone, or take any drastic measures against them, make sure you’ve thought carefully about your obligations under the following laws:
Information about a person’s criminal record is protected by legislation at both the federal-level and state-level in Victoria. The Privacy Act 1988 (Cth) and the Privacy and Data Protection Act 2014 (Vic) treats someone’s criminal history as “sensitive information,” which means that they are subject to extra protections under these laws.
Before you share the information uncovered from the police check with anyone, or store it anywhere, make sure you’ve done your research. Some important questions to ask would be: who is allowed to know about the information in the criminal history check other than the relevant manager in charge of the screening process; whether the data can be stored, and if so for how long; whether any exemptions under these legislations apply to your company.
As a rule, make sure you have a criminal history screening policy in place that requires this information to be stored securely away from prying eyes.
You can find more details about the Privacy Act and Australia Privacy Principles (APPs), on the website of the Office of the Australian Information Commissioner at www.oaic.gov.au.
Industrial relations laws
Before you fire an employee based on the outcome of their police check, you should check whether this could amount to an unfair dismissal under federal and state-level industrial laws.
A good place to start would be the Fair Work website at http://www.fairwork.gov.au/ending-employment/unfair-dismissal to read more about the grounds on which employees are protected under the Fair Work Act 2009 (Cth).
Knowing the relevant legislation for police checks can safeguard your organisation against litigation
Spent convictions legislation
A criminal history check allows you to learn about an employee’s prior convictions as well as any outstanding charges against them. However, certain prior convictions are protected by the law and should not be disclosed in this process. These are usually convictions in relation to relatively minor offences that took place a long time ago and were not repeated since. Commonly referred to as “spent convictions”, these convictions have lapsed and should not come up in the criminal history screening process. If they do, it cannot be considered relevant by the employer.
While spent conviction laws are different for each state and territory, you can learn more about the relevant legislation in your jurisdiction on the official State Police website. In particular you may find it useful to discover which categories of offences do not fall under this scheme (such as very serious offences, or where there was a significant jail sentence, among others), or the exceptional circumstances under which you may consider this information relevant (such as, if the person’s role requires them to be in close proximity to vulnerable individuals).
Do you want to create or refine your organisation’s police check policy? Download our Free Police Check Policy Template and reduce your employment related risks today.