Nothing But the Truth

The questionnaire will often ask the applicant to advise whether he or she has any criminal convictions that may affect their ability to perform the role from an honesty, safety or reputational perspective. For example, it would lawful and reasonable for an employer to decline a job application for a role as a teller in a bank from a person with a criminal record for armed hold-ups.

At ClubsNSW, we often receive queries from clubs where the club has discovered the employee has been dishonest on the pre-employment questionnaire. Such dishonesty can legitimately result in the termination of the employee’s employment.

Clubs may also have a policy or term in a contract of employment that requires an existing employee to immediately advise the club if the employee is charged with a serious criminal offence.

A recent case of the Fair Work Commission has highlighted the importance of the honesty of employees in this regard. In this case, the employee had been employed by Sydney Trains for 37 years and there were no substantive issues with his performance. The Sydney Trains Code of Conduct imposed an obligation on employees to immediately report to Sydney Trains if they had been charged with a serious criminal offence.

The employee had been charged with 13 drug related offences and did not advise Sydney Trains. Approximately one year later, Sydney Trains received an anonymous tip-off about the employee and the charges (by this time charges were still pending and had not been determined by a court). Sydney Trains commenced an investigation, and the employee was subsequently dismissed for breach of the Code of Conduct. He was also convicted of the offences by a court.

The employee commenced an unfair dismissal claim before the Fair Work Commission, submitting amongst other matters, that his failure to not report his crimes was a one-off incident and guided by legal advice.

Ultimately, the Commission found the dismissal was not unfair because his failure to report the charges “was not a minor breach, but constituted a breach which went to the heart of the trust that [Sydney Trains] is entitled to have in its employment relationships.” The Commission also considered the employee’s role as Station Manager, which required him to assist with the drug testing of employees and explaining to new employees about the disciplinary action if they tested positive to drugs at work. The employee’s conviction for the possession of two kilograms of cannabis would “make it difficult to see how Sydney Trains could have confidence in his ability to deliver this message and be seen as genuine.”

Honesty, integrity and lawfulness are key considerations in determining whether an employee ought to remain employed at a club. This is particularly so if the employee is in a leadership position. A club rightly has an expectation to trust and confidence in an employee.