Assessing Disclosable Court Outcomes

When a Nationally Coordinated Criminal Record Check (NCCHC) reveals a disclosable court outcome (DCO) or any outstanding charges, some basic steps must be followed by accredited agencies (including InterCheck Global Pty Ltd) prior to releasing the result.

These are important steps as the collection of Police Check Information is a manual process and sometimes mistakes can be made. Ensuring applicants have the right to dispute a record is an important part of the process.

More specifically, accredited agencies are responsible for:

• Ensuring the applicant/candidate is notified of the result as soon as practicable after it has been received; and
• Ensure the applicant/candidate has sufficient time to review the results and raise a dispute or any concerns with the results; and
• Ensure any dispute raised by the applicant/candidate is resolved prior to any sharing with another individual or entity (this includes providing the result to any approved client or organisation requesting the information).

Assessing Disclosable Court Outcomes (DCO)

Once the applicant’s dispute steps have been finalised by the accredited agency and the result released to the client or organisation requesting the information, the following should be considered when assessing the result:

• Ensure you have a clear policy to assess cases where a DCO (i.e., criminal record) has been identified;
• Determine whether the DCO for the specific applicant/candidate are relevant to the role and document the assessment process accordingly;
• Provide the applicant/candidate an opportunity to be heard, and encourage an open and honest discussion about the findings;
• Comply with your company’s assessment criteria in determining whether the potential employee’s criminal record jeopardises their suitability for the position;
• Discuss the outcome and assessment with relevant stakeholders and the applicant/candidate; and
• Consider an appeal process for the applicant/candidate if the decision does not go their way.

When determining whether the disclosable court outcomes (DCO) for the specific applicant/candidate are relevant to the role and document the assessment process accordingly, we recommend reviewing this article made available by the Australian Human Rights Commission: Human Rights: On the record. 

Assessing an Employee’s Criminal Record

In assessing the relevance and impact of a prospective or current employee’s criminal record, consider the following factors:

1. The relevance of the offence in relation to the nature of the employee’s position; for instance, if an applicant has a record for drunk driving, will this impact on  their suitability as an aged care worker that’s not required to drive a vehicle for their role;
2. Other background checks or assessment tools used to place the applicant in the role;
3. The time elapsed since the offence and the age of the individual at the time of the offence;
4. Whether it was an isolated offence or there has been a pattern of criminal behaviour;
5. The severity of the sentence; such as, whether a conviction was custodial, or the person was placed on a good-behaviour bond;
6. The applicant’s length of service and performance within the organisation if already employed;
7. The applicant’s individual circumstances surrounding the offence;
8. The proportionality of removing the applicant from their position for the type of conviction, if already employed; or re-advertising for another candidate;
9. The extent of risk that the applicant may impose on the organisation if they continue in their role or are appointed to a new role. This could also include considering reputational risk for the organisation if the criminal history is publicly known.
10. Changes in legislation relevant to the position and conviction.

Terminating an Employee Based on a Criminal History

If a current employee’s criminal history reveals a relevant criminal record and your organisation finds that the person is no longer suitable to hold the position, your organisation should explore their options prior to terminating the employee.

The first option, if practical, may be to retain the person within the organisation and transfer them into an alternative role which doesn’t carry the same inherent risks as the role they’re currently holding or applying for. This option may not always be practical but should be considered before deciding to terminate.

Once a decision has been made to dismiss the applicant or withdraw and employment offer, your organisation should consider the following:

1. Consider your obligations and responsibilities as an employer under anti-discrimination and unfair dismissal legislation;
2. Consider any restrictions or carve-outs in the employment contract such as probationary periods, employment subject to satisfactory background check, and roles that require the applicant or employee to be “fit and proper;” 
3. Discuss the decision with the person, outlining the requirements of the position and their unsuitability for the role;
4. Document the decision in writing (comprehensively documenting the decision allows your organisation to adequately respond to any allegations at a later stage.); and
5. Seek legal advice before terminating to minimise exposure to a claim by the dismissed applicant.

The information provided in this article is intended for guidance only and does not constitute legal advice. You should seek legal or other professional advice before acting or relying on any of the Content.