Previous convictions not enough for dismissal

WORK TO RULE

MARY-JANE THOMAS
Last updated 12:18 10/01/2014
Mary-Jane Thomas
FAIRFAX NZ
Southland Times Work to Rule employment law columnist Mary-Jane Thomas

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OPINION: Readers of my column may remember a case I wrote about a few weeks ago about the justified dismissal of a man who failed to disclose previous criminal convictions when asked. This is another case about a similar issue with quite a different outcome.

Fonterra has a three-stage application recruitment process. Online. Telephone interview. Face to face interview.

Mr R applied for a tanker driver position. He had previous convictions which included eight convictions between 1997 and 2004 including driving with excess breath alcohol, theft as a servant and for these convictions he was imprisoned.

The online application included a question about criminal history. Mr R selected the option "I do not have any past or present criminal or driving convictions".

The online application specifically said that if the applicant provided "misleading or false information, then this may be grounds for dismissal without notice".

Mr R passed to the next stage of a telephone interview. At the interview he disclosed one speeding ticket but not any of his other convictions.

He then passed to a face to face interview. At that interview he disclosed some minor historical offences but not the full number of convictions or imprisonment.

On October 2, 2012, Mr R was offered and accepted the position of a tanker driver. He gave permission for Fonterra to request his criminal convictions record. Crucially, his letter of appointment was unconditional: it did not state that his employment was subject to his criminal convictions record being acceptable to Fonterra.

Mr R started work on October 8, 2012, and on November 9, 2012, when Fonterra received his criminal convictions record, Fonterra alleged Mr R had failed to disclose his convictions and he was dismissed. Mr R maintained throughout the disciplinary process and before the Employment Relations Authority that he was relying on his honest belief that he was covered by the Criminal Records (Clean Slate) Act 2004. He said he relied upon his partner's information about what it meant. She helped him with the computer application. He said he consented to a check of his criminal records and that he did not understand that he had to disclose his convictions because of the Clean Slate Act.

In fact, the Clean State legislation did not apply because Mr R had a term of imprisonment.

Mr R was dismissed because of his "failure to disclose all of your traffic and criminal convictions during the recruitment process".

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So essentially the employer was saying that he had intentionally misrepresented himself to the employer and as such his appointment was terminated.

This case is really interesting. Fonterra contended to the authority that Mr R had "deliberately" withheld information material to the decision to employ him.

Of course there is a huge difference between someone "deliberately" withholding information and not giving information because they believe they are not required to give the information (trust me, there is).

Fonterra had two insurmountable problems.

First, it appointed Mr R unconditionally. In other words, it decided to make a permanent appointment while waiting for the Minister of Justice to provide Mr R's criminal convictions record. The letter of appointment did not say that the appointment was conditional upon getting the criminal record back. The authority held that once the appointment had been made, Fonterra was not entitled to rely on a statement in the online application form.

Therefore the employer could not rely upon the failure to advise of the criminal convictions to simply dismiss on that basis.

So then the authority considered the employer's contention Mr R had deliberately omitted to tell them about his convictions.

The difficulty that the employer faced was that Mr R's team managers specifically accepted that there was no suggestion in the meetings that Mr R or his partner had lied about their misunderstanding of the Clean Slate legislation.

The authority held that at the time of the dismissal, his employer in fact believed that Mrs R had contacted the Ministry of Justice to ask about the effect of the Clean Slate Legislation and had made an honest mistake about whether Mr R was required to disclose the historical convictions.

Fonterra was not able to support the contention to the authority that Mr R had "deliberately" misrepresented himself to get the job. He had a genuine (if mistaken) belief about the effect of the Clean Slate Act.

Once the authority member found that, it held that Mr R's dismissal was unjustified because Fonterra could not as a fair and reasonable employer have dismissed him. Mr R was awarded more than $13,000 in lost wages and $5250 compensation. I know that this decision has caused some alarm among employers - it shouldn't. It's not saying that people can lie about previous convictions - it's saying employers need to get the processes right.

» Mary-Jane Thomas is a partner at Preston Russell Law. E-mail questions to mary-jane.thomas@prlaw.co.nz.

- The Southland Times

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