back to article Integrator fired chap for hiding drugs conviction, told to pay compo for violating his rights

Can you fire someone for not telling you they have a criminal record and did time for dealing drugs? Australian system integrator Data#3 has just been told the answer to that question is “no”, under some circumstances. As a report (PDF) on this case explains, in late December 2014, Data#3 hired a chap known only as “Mr. AW” as …

  1. Anonymous Coward
    Anonymous Coward

    When you've done the penalty, that should be it.

    If you allow companies to fire anyone with a criminal record, then you're effectively saying they should never work again. So what's the point of the system - to encourage rehabilitation, or to sentence people to life on benefits? Sure, he did wrong, and paid for it. He should now be allowed to build his life and not be pushed down into a situation where he may think that the only career opportunity left available is to return to crime...

    1. Anonymous Coward
      Anonymous Coward

      Re: When you've done the penalty, that should be it.

      Totally agree, sir.

      Something we lost years ago in the UK. Various "think of the children" laws have run rings around the Rehabilitation of Offenders Act.

    2. Phil O'Sophical Silver badge

      Re: When you've done the penalty, that should be it.

      They didn't fire him, and they didn't fire him for having a criminal record.

      He was let go during a trial period when they could, as the article says, end his contract with a week's notice for any reason. The reason they gave was that he didn't reveal that he had a past conviction.

      The article is lacking some detail. Under UK law a conviction becomes spent after a number of years, and after that time any criminal record becomes legally invisible, does a similar situation apply in Australia? If so, was he outside that period? If so then I would agree that it wasn't acceptable to take it into account, but if the conviction was still on his visible record and he didn't reveal that, then the company was quite within its rights to end his contract.

      Perhaps the only lesson Australian companies will take from this is that when you let someone go during their trial period, it's better not to be explicit about the reason.

      1. Jason Bloomberg Silver badge

        Re: When you've done the penalty, that should be it.

        the company was quite within its rights to end his contract.

        Not according to the ruling.

      2. Anonymous Coward
        Anonymous Coward

        Re: after that time any criminal record becomes legally invisible

        I can explain your downvotes - that's not true.

        As a PP has noted, there have been a few laws which require the disclosure of spent convictions for the purposes of the Disclosure and Barring Services (DBS) vetting process.

      3. mark 177

        Re: When you've done the penalty, that should be it.

        If the company doesn't ask the question, there's no onus on him to reveal the conviction. Most companies *do* ask.

    3. Unep Eurobats

      Re: When you've done the penalty, that should be it.

      But he wasn't fired because he had the conviction, or because he'd done the thing that led to the conviction. Data#3 claims he was fired because his failure to disclose the conviction indicated a lack of integrity. But he claimed he was told he didn't need to pass a criminal record check, implying they didn't want to know.

      How did the conviction become known about after he was hired? Normally if you get the job and you're OK at it no one wants to go digging around in your past. I wonder if there was another reason they decided they didn't want him and this was an excuse?

      1. jabuzz

        Re: When you've done the penalty, that should be it.

        There is a difference between needing to pass a criminal records check and disclosing any convictions you have. So he asked if he needed to pass a criminal records check to which the answer was no, and used that as a reason to not disclose his criminal record. Assuming it was not a spent conviction then that would demonstrate a lack of integrity.

        However any sensible employer would never give the reason why they let someone go in a trial period. You say something like you don't feel they don't fit in with the company or something else banal and none generic.

      2. Anonymous Coward
        Anonymous Coward

        Re: When you've done the penalty, that should be it.

        How did the conviction become known about after he was hired?

        From the article: "AW says he specifically asked Data#3's interviewers if he needed to pass a criminal record check"

        I suppose there's a slight possibility that that raised a red flag in HR somewhere...

        1. Phil W

          Re: When you've done the penalty, that should be it.

          "AW says he specifically asked Data#3's interviewers if he needed to pass a criminal record check"

          What I don't get here is if they consider him not revealing that he had a criminal record to be a problem that shows a lack of integrity, why did they not to respond to his queries at interview about whether he needed to pass a criminal record check with "Why? Do you have a criminal record?" or if there is some Australian law preventing them from directly asking that question simply asking "Would it be a problem if you did have to pass one?" (note that answering yes to this is not the same as saying you have a criminal record, you many simply object to being checked up on).

          Even more simply, they could not pick him for the job in the first place on the basis that his queries on the subject indicate a personality that would not fit with the company.

          As has been suggested, I suspect what really happened here was that they really wanted rid of him for some other reason and used the fact that someone noted his query at the interview to find a reason.

      3. martinusher Silver badge

        Re: When you've done the penalty, that should be it.

        >But he wasn't fired because he had the conviction, or because he'd done the thing that led to the conviction. Data#3 claims he was fired because his failure to disclose....

        Its called "Catch-22". If you disclose you don't get the job. If you don't disclose then you get nailed for failing to disclose.

        This logic was imported wholesale from the US, it was part of the 'War on Drugs' which was really a 'War on Subcultures We Don't Like Because They Ask Too Many Awkward Questions'. We forced conformity on those rebellious youngsters by making examples of some of them, denying them the ability to work and travel. That brought the rest into line.

        1. Sir Runcible Spoon

          Re: When you've done the penalty, that should be it.

          "Its called "Catch-22". If you disclose you don't get the job. If you don't disclose then you get nailed for failing to disclose."

          Disclosing a (spent) criminal conviction should not bar you from a job unless the conviction was related to the job somehow (e.g. child molester working at a school, or an armed robber working for g4s...oh wait).

          The problem is that it often does stop people getting jobs, which means they have better option by going back to being a criminal.

    4. Voland's right hand Silver badge

      Re: When you've done the penalty, that should be it.

      Not even that.

      1. Clean criminal record was not a mandatory condition of employment and part of the contract. WTF?

      2. The chap asked (rather pointy) questions on this to verify it during his interview and had that confirmed. WTF?

      3. Disclosure of criminal record was not part of the contract. WTF?

      The employer fired him not for having one but for "not having the integrity to tell about it" while not having this as a requirement.

      I suspect he would have won an employment tribunal in most countries and/or a contract law lawsuit.

      Oh, and Murdoch's media can go suck a sour one here. He would have won regardless of what legal recourse did he chose for the purpose. The f*** fascist little sh*ts are not the law and they need to learn that they should abide by the law just like everyone else. In every country where they have a version of the Volkisher Beobachter.

    5. bazza Silver badge

      Re: When you've done the penalty, that should be it.

      Data#3 look pretty dumb here. No employer anywhere is entitled to know everything about one's personal life and history. Sacking them subsequently when they've already asked whether the company needs to know of specific aspects about their personal life is pretty crazy.

      They should ask themselves, would they sack someone if they found out they had liked the band Genesis? Many today would consider such a past to be fairly appalling, but it's not a sacking offence. Obviously if they're still a fan, well that's different...

      1. Vic

        Re: When you've done the penalty, that should be it.

        They should ask themselves, would they sack someone if they found out they had liked the band Genesis? Many today would consider such a past to be fairly appalling, but it's not a sacking offence

        Post-Peter Gabriel? It fucking is.

        Vic.

    6. Fatman
      FAIL

      Re: When you've done the penalty, that should be it.

      <quote>If you allow companies to fire anyone with a criminal record, then you're effectively saying they should never work again. </quote>

      You fail to understand the ramifications of this specific situation.

      IIRTAC (if I read the article correctly), the candidate inquired IF having to pass a 'records check' was an integral aspect of being hired, he was told NO.

      That did not absolve of his responsibility to disclose it, and, in the eyes of the employer, such a failure to disclose a criminal conviction offers insight to his honesty and integrity. It may also open him up to being blackmailed; which for people in IT, open up avenues for all kinds of mischief in a corporate setting. Without knowing exactly what the responsibilities and duties were; he could be interacting with the employer's customers systems and have access to sensitive data. Any risk manager would cringe at this prospect.

    7. This post has been deleted by its author

  2. benjymous

    I'm stuck with the image of having to fire someone "under come circumstances"

    1. mkaibear

      Yes, it's a sticky situation alright.

  3. frank ly

    Long term effects

    Even if the AHRC find in his favour, any monetary award would probably not last him for a long time. If they force an employer to keep him on then his time there would probably not be pleasant. In any future job search, his name will ring alarm bells because of this action.

    I'd suggest that he should have quietly accepted that he had no written proof of the interviewer's statment about not needing to pass a criminal record check and then make sure that in the future he got a formal assurance about this from any potential employer.

    It's not 'right' and it's not 'fair' but it does seem sensible, to me. Having said that, he is brave to stand up to this so good luck to him.

  4. Anonymous Coward
    Anonymous Coward

    I think it does depend on the crime and how long ago it was, but ultimately, it is the employers responsibility to ask that question if they feel it's relevant.

  5. Potemkine Silver badge

    Redemption

    Does this concept exist in Australia, or should one pay for entire life the mistakes made in young ages?

    Employers should not be allowed to access criminal records, they are no cops nor judges... or the opposite should also be true, workers should be able to access the criminal records of all the management.

  6. Anonymous South African Coward Bronze badge

    I am in two minds about this.

    1. Company was right in letting him go, because what guarantee do they have that he will not be (ab)using company resources for Bad Things(tm)?

    2. He was right in asking pointed questions about criminal records, but when getting told about that it is not a prerequisite, left it at that - which was the correct thing to do. Seems like he was willing to let them know about his past - and maybe not do it again as a lesson was learnt.

    So, TL;DR: we will never know, and can only speculate wildly.

    1. Hollerithevo

      Bent for life?

      Once a criminal, always a criminal? I have known people who had a wild and law-breaking youth, who then grew up and are solid citizens now. I also know lots of solid citizens who have no trouble popping personal letters into the company's postal system, stealing paper and staplers and so on, and quietly copying client contact details when leaving a job. We keep a beady eye on those who were convicted and they therefore can never shake off the taint, while happily accepting that a little petty dishonesty (from office pens to false sick days off) are all part of life's rich pageant.

      1. Version 1.0 Silver badge

        Re: Bent for life?

        Yes, according to the law in most countries, people are bent for life - however when corporations are caught in porky pies they simply pay up without admitting guilt. Had he "incorporated" himself there would have been no problem.

  7. Ole Juul

    glass houses

    My take is that the company needs to up their ethics game and stop being petty about this sort of thing.

  8. Zippy's Sausage Factory

    Depends when it was in my view

    If it was when he was 18 and he's now 35, then it's probably irrelevant.

    If it was last week, on the other hand...

    1. Anonymous Coward
      Anonymous Coward

      Re: Depends when it was in my view

      Given that the issue was not the offence, but failing to declare it, it was very recent.

  9. emmanuel goldstein

    Yet another example

    The "War on Drugs" strikes again and ruins another life. To me the details of this case are secondary in the sense that he should not have been lumbered with a criminal record in the first place.

    Murdoch's media have always been cheerleaders for the prohibition argument and it is a policy that continues to cause far more harm than recreational use of drugs.

    1. Phil O'Sophical Silver badge

      Re: Yet another example

      far more harm than recreational use of drugs.

      He wasn't in trouble for using drugs recreationally, he was convicted of selling Ecstasy, which kills many people each year.

      1. Anonymous Coward
        Anonymous Coward

        Re: Yet another example

        Define "many". Plenty of legal drugs are far more deadly, of course. UK deaths in 2015 appear to be around 10, that's pretty low on the cause of death scale even if you only consider the "dumb stuff people get up to at the weekend" causes.

        Also, there can be quite a wooly distinction between the two. Get enough pills stashed to last you personally for a few weekends out, or grab a bunch for some mates you're getting smashed with this weekend? You're a dealer if caught even if you weren't selling a single one. Not saying that's what happened here for, but if you have the attitude of "he was selling, he deserves everything he gets even after paying his debt to society", you're a little sheltered from reality.

        1. patrickstar

          Re: Yet another example

          While MDMA isn't harmless, I bet the persons taking it would have gone drinking instead if they couldn't get any. Since drinking is, by far, more dangerous both for you (several orders of magnitude) and the people around you, the argument could be made that he actually kept both them and their surroundings safer...

        2. Vic

          Re: Yet another example

          UK deaths in 2015 appear to be around 10

          To add a little context, genitourinary diseases appear to have killed 12,406 people in the UK in 2010. That makes getting the clap significantly more dangerous than these drugs...

          Vic.

      2. Alistair
        Windows

        Re: Yet another example

        Phil:

        Stats on this side of the pond are thin on Ex in specific, but, at least for what there is, *legally prescribed* Oxycodone kills more people than Ex. That may have more to do with lazy doctors than anything else tho.

        Not, of course that Canadian stats have bugger all to do with New Zealand or Australia, the point is quite simply that the "War On Drugs" has been done *wrong* from the beginning. So folks that run around under that banner need to open their eyes and stop using selective statistics for guidance.

        In reality, sitting over here, if a criminal record is going to be an issue for an employer, it is *the employers* responsibility to have the appropriate forms filled out and submitted, and the *future* employee normally has to sign off on this (in some cases must acquire the record check themselves and hand it in). Given that, if the question is not asked prior to employment *commencing* an employer cannot fire you for not telling them you have a record.

        Quite simply, logic dictates this:

        If a criminal record is an issue in a field of employment, one cannot offer someone a position until such time as it has been determined that there is no criminal record.

        If a criminal record is NOT an issue in a field of employment, discovery of one after the offer was made is irrelevant to the situation.

        Mind you, who the hell ever said that contract IT was logical?

        1. Phil O'Sophical Silver badge

          Re: Yet another example

          Stats on this side of the pond are thin on Ex in specific, but, at least for what there is, *legally prescribed* Oxycodone kills more people than Ex. That may have more to do with lazy doctors than anything else tho.

          What has that to do with anything? If a legal drug causes deaths because it is abused or misprescribed, that's a medical problem that needs to be solved. It's a completely different situation to an unlicensed seller trading in a drug which is banned because it is known to cause fatal reactions, and has no known medical uses.

          If a criminal record is an issue in a field of employment, one cannot offer someone a position until such time as it has been determined that there is no criminal record.

          I repeat my original question. Is there a concept of a conviction being "spent" under Australian law, and if so was it the case here? If not then there are two issues:

          - Should the employer have done the check first, especially since the guy in question asked the interviewers if there was a check, which should have rung alarm bells?

          - Was the guy obliged to own up?

          As the article says, he wasn't fired for having a drugs conviction, he was released from a trial contract because he didn't admit to having the record. If he was required to admit to the conviction, then he was effectively let go for lying, which may not be unreasonable if his employer expects honesty.

          1. Truckle The Uncivil

            Re: Yet another example

            There is as far as I know, no idea of a 'spent' conviction in Australia or New Zealand.

  10. Doctor Syntax Silver badge

    If the employer was concerned about convictions then the question about disclosure should have been a warning for the interviewer to follow up. Maybe there was a clash of opinion between the interviewer and someone else in HR.

  11. IsJustabloke
    Meh

    While I agree he's been treated quite shabbily...

    He wasn't let go because of his drug conviction but rather because he didn't disclose it. If the company didn't ask him to disclose it then that's a problem with their interview process.

    If he asked pointed questions about not needing to pass a CRC, then he should have been honest enough to say "OK the reason I ask is because.....blah blah blah" because if I had been interviewing him my very next question would have been "why do you ask?" (A natural question IMO and we've know way of knowing if this was asked or not.) Yes, he's taking a chance they'll kick him but it's just as likely they'll commend his honestly and while there will always be people who will kick him for his past, I happen to think the majority of people won't. If you feel you've been lied to once then human nature is to be suspicious of everything that person says.

  12. mkaibear

    Was he told he needed to disclose it or not?

    To my mind down to a simple question - was he told he needed to disclose it or not?

    The article states that he asked whether a criminal record check was required, not whether or not any convictions needed to be disclosed.

    If the company asked for all convictions to be disclosed and he decided not to do that then it should be treated in exactly the same way as any other lie in an application form - disciplinary and, if you're on probation, probably immediate firing.

    If the company hadn't asked for all convictions to be disclosed and left him with the impression that no criminal record check would be performed then I don't think the firing was reasonable.

    1. John Brown (no body) Silver badge

      Re: Was he told he needed to disclose it or not?

      "The article states that he asked whether a criminal record check was required, not whether or not any convictions needed to be disclosed."

      But both are effectively the same. If he needed to pass the Aus equivalent of a DBS check that would have shown any relevant unspent convictions. Since the company didn't require a DBS check, why would it be relevant to volunteer the information? A major part of the "punishment" is supposed to be rehabilitation and once the process is over, why should a company get to be an even higher judge and dish out further punishment?

      I bet there's more than one poster here with current or spent convictions that would be very distressed to find themselves suddenly out of a job because someone "discovered" their past misdemeanours from years ago which are no longer relevant in their life, let alone their career.

  13. PassiveSmoking

    He asked if he needed to disclose. The reply was no. Therefore he didn't disclose. He was told one thing but they actually meant another. That doesn't strike me as very fair.

    Having said that I don't think I'd feel the same way had it been something more serious like a violent assault or organised criminal activity or something.

  14. eionmac

    ? Delberately employ convicted folk.

    1 In one 'job' I had in the past, most employees had 'convicted status'. It depends on the 'cime' and the useful skills needed by 'employer'.. 2. Disclosure: I ended up in that job due to bad activities which caused me to be recommended for selection by a superior who knew how useful my attitudes/skills could be for the job for which they were recruiting.

  15. Just An Engineer

    In this part of the world...

    they ask you on the application if "you have even been convicted of a felony" if you answer yes then the little box asks for details. If you answer no then move on.

    The last question on the app is usually "do you attest to the accuracy of the statements above", if you answer yes, then move on.

    However, by not disclosing you had a conviction, you have essentially lied on the application, and this in and of itself is enough to get you fired, or not hired at all , depending when it was caught.

    Not sure the rest of the world has the same type of system.

    1. MNGrrrl
      WTF?

      Re: In this part of the world...

      > However, by not disclosing you had a conviction, you have essentially lied on the application, and this in and of itself is enough to get you fired, or not hired at all , depending when it was caught.

      There's no box after checking yes or no to write a small essay on the inherent social inequalities of the justice system. But if you're the kind of person who thinks it's okay to punish someone for trying to escape such inequalities by lying, you're probably (a) white, and (b) male. Because everyone else knows the system is rigged, and would never say it's only down to their "honesty".

    2. Vic

      Re: In this part of the world...

      Not sure the rest of the world has the same type of system.

      In this part of the world (the UK), the Rehabilitation of Offenders Act 1974 explicitly makes it the correct[1] course of action not to disclose spent convictions where the offender qualifies as "rehabilitated"..

      Vic.

      [1] There are some exemptions.

  16. David Pearce

    Selling drugs is a major crime in most countries, hardly just youthful exuberance.

    Where I am it carries a mandatory death penalty.

    1. Anonymous Coward
      Anonymous Coward

      A little harsh on pharmasists?

      "

      Selling drugs is a major crime in most countries, hardly just youthful exuberance.

      Where I am it carries a mandatory death penalty.

      "

      As was posted earlier holding large quantities of drugs even for personal use is automatically classed as dealing in the same countries, insufficent information to justify demonisation.

    2. Trevor_Pott Gold badge

      @David Pearce

      Your country is fucked up.

  17. Matt Bryant Silver badge
    Meh

    "Honesty" in IT.

    Considering this is another week I'm dealing with the results of an IT company's representatives "not being wholly truthful" (AKA, lying to us, their customer), I'm once again struck by the hypocrisy of such a company firing someone for NBWT. It seems many such companies have the attitude "we don't care what porkies you tell the customer to get the contract/sale, just don't get caught, but if you ever lie us, your employer, you're f*cked!"

  18. ecofeco Silver badge

    In this case

    The verdict is correct.

    Any company that tells you past convictions, your credit rating and other private life factor don't have a bearing on your hiring, are lying through their teeth.

  19. David Roberts

    One thing not mentioned so far

    A conviction for dealing drugs severely limits your ability to travel internationally. In fact, any criminal record is likely to cause similar problems.

    Could be the firm was so dumb it didn't think to check on this until the issue arose in normal business.

    Even more likely to be a problem in NZ where they tend to fly trainees to Oz instead of running in country courses.

    Still seems unjust to not check for a criminal record then get all bent out of shape later. Then again, this is how most insurance companies work for any information not disclosed.

  20. Anonymous Coward
    Anonymous Coward

    I always considered drug taking as the reason why some people were awesome at tech - the last thing id do is poke around for drug convictions in my tech teams

  21. tp2

    Money is important enough

    Pretty much everyone needs to get money one way or another. Rejecting people's opportunities to get some of it flowing towards that person should not be done for poor reasons. Some of the reasons cited by the companies are explicitly forbidden by the rules, mostly related to race, religion, health issues, your neighbour's conflict with your cat, whether you're pregnant or got kids in bad age, if you won the lottery last week, whether you're currently homeless; all usually related to stuff that people have no or little control over. Criminal records/financial status are kinda different since it's expected that people can control those aspects of the life, but even financial status can sometimes be outside of the control of ordinary people.

    On the other hand, companies are expected to make their own decisions who are the persons who can become employees of the company. Companies get this decision by the significant amount of money they can pay to their employees, and a promise to keep the money flow stable enough that their employees can build a career and get a living after spending significant amount of time with the company. While this decision belongs to the company executives, it should be used carefully. There needs to be significant conflict with the stability of the money source before they can properly make these decisions. For example, if the company doesn't have money source stable enough to hire more than 2 persons, it's not expected that they hire 120 people... So there are significant good reasons to make this decision against a person looking for a job. Or if company can't provide good working environment for their new employees for lack of suitable apartments, this can be used as a valid reason. But if this happens alot, the company gets bad reputation in the market for not keeping their system stable enough that they can grow and hire more people. Newspapers are supposed to report when companies blatantly reject black africanamerican people or fire people who got married to a person they don't approve.

    So my position is that companies should only use this decision to reject people, if making it otherwise somehow breaks their money source stability. Criminal records and other such issues can in some situations do that. But it requires case-by-case analysis when this is the case. Passing issues in this area to be resolved by tribunal is a risky move by the emploee, since it indicates that the person is a troublemaker and unable to make this process work without resorting to strict following of the rules to the letter. It also wastes their time, if the company and the tribunal needs to spend time resolving the conflict. So there should be a good reason before this is done. People with criminal records generally can't expect other people to follow the rules to the letter, since they're known not to follow the same rules themselves.

    But there are obviously cases where these powerful positions are absolutely necessary. Widespead discrimination of certain class of people in employment opportunities clearly sounds like a good reason. Criminals are clearly belonging to this group. There's clear statistics showing that criminals have hard time getting good jobs. There's clear statistics that more criminals are out of job than ordinary people. These statistics can be used to your benefit, if there's clear conflict and the system is not providing opportunities to make a living. It just needs to be done for the right reason. Not because you want to harm the companies that rejected you, but only because you feel their decisions were done for the wrong reasons. This element must exist before passing it further down the line is warranted.

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