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No Hiding for Employees

Work-life balance, yes. Work-life separation, no. The employers right to know and act on information about an employee’s criminal charges has been emphasised in recent Supreme Court and Employment Court decisions.

Employees need to think carefully about what they disclose to their employer both in the hiring process and if charged with any offences during their employment.

Suppression orders no help

The Supreme Court has last month ruled that not even a suppression order can prevent employers finding out about an employee’s criminal charges. A University of Otago security guard was charged with assault and willful damage. the District Court discharged him without conviction and made a suppression order. University Human Resources were informed and the guard suspended was suspended and given a final written warning.

The Supreme Court said that those with a genuine need to know, which included the employer, could be told despite the order.

It is a safe assumption that any offences involving dishonesty, such as fraud, will be relevant to an employer, whereas traffic offences or petty crime may not be, depending on the nature of the job.

Not-so-private life

Dismissals of an Auckland financial analyst involved in a road rage incident and a real estate agent caught with methamphetamine, show how employers have discretion to fire employees who incur convictions whilst employed.

The Employment Court accepted that such behavior damaged the employers’ reputation and affected the employee’s ability to carry out their duties.

The lesson is that employers have wide scope to take action they deem appropriate, up to and including dismissal when an employee acts or has acted outside the bounds of the law. The private life divide can be no barrier here.

Professional Problems Exposed

It’s not just criminal charges that employees need to be up front about. Anyone who has been before a disciplinary body within their profession and fails to inform their employer risks dismissal or misconduct.

Recent cases of teachers facing disciplinary proceedings for failing to disclose prior complaints against them show that employers also have a right to take action.

The Price of Secrecy

The effect of failing to disclose charges on the employment relationship will depend on the nature and gravity of the concealment. At the very least trust and confidence will be lost.

Employers may be able to terminate the employment if an employee fails to disclose serious or extensive convictions, or offences closely connected to their role. This is also true if the employee is asked about previous charges as part of the recruitment process and fails to disclose any history not protected under the clean slate rules.

However, employers cannot dispense with due process, including investigation and communication. BuckettLaw is able to assist employers to address such a situation.

If you have any questions about your rights and obligations as either an employer or employee please get in touch with BuckettLaw on 04 472 8600.

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