NSW Employment Contract - Employee's Obligation to Disclose Criminal Conviction?

[Piers Blomfield]

A client of mine received a s10(1)(b) for driving with the presence of methamphetamine in her system. It was a plea of guilty and she was placed on a bond, as it was her first offence. A s10(1)(b) is a non-conviction, however, still appears on your police record.

The following week, she was suspended with pay on the basis that she had to answer questions concerning what occurred at court. The employer stated it involved an obligation to ensure she was safe at work and that the reputation of the business was protected. The employer is a multi-national hardware store. I am unaware of what is in her employment contract.

 

[Serge Gorval]

Unfortunately these issues are becoming increasingly more common. Firstly, a s10 conviction is not a recorded conviction and allows your friend to claim that she has a conviction-free record.

Companies occasionally suggest that a criminal conviction is deemed to be serious and willful misconduct resulting in suspensions / terminations. This often is challenged in the Commission and unless she has driving duties or other inherent requirements that involve driving, the Employer cannot terminate her on this basis.

What is your friend's current situation, employed/ suspended ?

 

[Tim W]

Unfortunately these issues are becoming increasingly more common. Firstly, a s10 conviction is not a recorded conviction and allows your friend to claim that she has a conviction-free record.

I mention this for the benefit of future (non-lawyer) readers...

• Thing to remember is that s10(1)(b) is conditional.
• The person is discharged, yes, but on the condition that they stay offence free for the bond period (up to 2 years).

Companies occasionally suggest that a criminal conviction is deemed to be serious and willful misconduct resulting in suspensions / terminations. This often is challenged in the Commission and unless she has driving duties or other inherent requirements that involve driving, the Employer cannot terminate her on this basis.

I mention this for the benefit of future (non-lawyer) readers...

• It can be helpful to remember that "driving" is not limited to cars.
  If a person is required (other than incidentally) to operate, say, a forklift,
  or even a powered pallet jack, then that too can be "driving".
  So can moving, say, the business' utes-for-rent around in the yard.
  And that's to say nothing of plant and heavy equipment (such as on farms).

In my experience, the argument about Work Health and Safety sometimes carries weight,
but the "protect the company's brand" argument does not always and automatically fly.
Both depend on the facts and circumstances of the individual case, and the history of the worker involved.

Cases like this are why I encourage young and vulnerable workers to belong to the relevant union.