Disclosure did not go far enough, ERA rules

MARY-JANE THOMAS
Last updated 13:53 09/12/2013
Mary-Jane Thomas
FAIRFAX NZ
SOLICITOR: Mary-Jane Thomas
Mary-Jane Thomas
FAIRFAX NZ
CROWN SOLICITOR: Mary-Jane Thomas

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OPINION: Mr R applied for a position with a major retailer in November 2012.

He was asked to complete an application form which included a request for information about criminal convictions. Mr R said he answered the question honestly by declaring that he had convictions.

Mr R interviewed for that position but was not successful and 10 days later was contacted about a different position that had arisen in another area of the store. He was offered and accepted that position following an interview.

He started his employment on December 21, 2012, and in January 2013 he signed a form authorising his employer to obtain his criminal record from the Ministry of Justice. Mr R continued working without incident until March 6, when he was approached by his branch manager and given a letter notifying him of a meeting to attend to discuss information about his criminal convictions which had recently been received from the Ministry of Justice.

A meeting took place and he was later dismissed without notice for failing to disclose all of his previous convictions.

What had occurred is that when he completed the employment application form on November 28 he consented to the company seeking criminal conviction checks where applicable.

The offer of employment was made "subject to the results of the Justice Department criminal records check".

Mr R gave evidence and was adamant that he disclosed all three of his convictions at the interview for the job for which he was successful.

He said he did not intend to deceive the employer or attempt to hide his criminal history and that it would have been futile as he knew his employer would be checking his convictions with the Ministry of Justice.

The employment application form completed by Mr R was as follows:

Q. Have you any criminal convictions of any kind (not including any concealed under the Clean Slate Act) ?

A. Yes.

(Please detail for what and when including but limited to fraud, forgery, stealing, assault, battery, weapons.)

Failing to obey officer's requests.

Now in addition to this he had a conviction for wilful damage. Put simply the employer's argument was that during Mr R's recruitment process he had only made them aware of one previous criminal conviction and they had become aware of his other convictions only when the report from the Ministry of Justice was received.

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The employer was clear that at the interview Mr R had been asked about his criminal convictions and Mr R had only told them of the one conviction. The employer was equally adamant that there had been no mention of wilful damage.

The ERA accepted the evidence of the employer and found that Mr R was aware that he would be putting his employment with the employer at risk if he gave false or misleading information or suppressed any material fact in completing the form.

The ERA held that Mr R knew that the offer of employment was subject to the Ministry of Justice criminal records check.

The ERA found that the process undertaken by the employer was fair and the dismissal was justified.

Mary-Jane Thomas is a partner at Preston Russell Law. She is always interested in ideas for articles. E-mail her at Mary-Jane.Thomas@prlaw.co.nz.

- The Southland Times

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