Like most things to do with employment, it isn’t as straightforward as it seems as Fonterra recently experienced.

The employee, Mr Richardson, applied for a job as a tanker driver and was asked to declare any convictions on the job application.  The application made it clear he could be dismissed without notice if he provided misleading information about his criminal record.

He thought, wrongly, that he didn’t have to declare all of his convictions, including excess blood alcohol, driving while disqualified, oh and theft as a servant.   Sentencing had included imprisonment.  He thought the Criminal Records (Clean Slate) Act 2004 said his prospective employer didn’t need to know about these things.
Fonterra dismissed their employee of one month when they received a copy of his criminal record.  Mr Richardson challenged this decision in the Employment Relations Authority.  He received 13k in lost wages and 5k in compensation.  He did not get his job back.

The former tanker driver’s dismissal was found unjustified because his appointment was unconditional.  He had started work.   His employment agreement did not state he may be dismissed if something unsatisfactory was found in his criminal record or if he misrepresented his record.

The application form warning was not enough.   His employment agreement stated that it replaced any prior representations and agreements – this is quite a common clause and can be a useful one, but not for protecting employers from employees who have serious convictions and who do not read the Clean Slate Act.

This case shows the importance of a robust recruitment process with good background checks but also that well written offer letters and employment agreements are crucial.

Make sure you give job applicants enough information about what they need to declare.  The Ministry of Justice has good printable information – attach this to your application form.   See there website here.  In summary, the job applicant must meet all of the following criteria under the Act:
• no convictions within the last 7 years;
• never been sentenced to a custodial sentence e.g. imprisonment, corrective training, borstal;
• never been ordered by a Court following a criminal case to be detained in a hospital due to their mental condition, instead of being sentenced;
• not been convicted of a "specified offence" (e.g. sexual offending against children and young people or the mentally impaired);
• paid in full any fine, reparation, or costs ordered by the Court in a criminal case;
• never been indefinitely disqualified from driving under section 65 Land Transport Act 1998 or earlier equivalent provision.

In a perfect world, no offer should be made until you have their criminal record in front of you, but that is not always realistic to keep your preferred candidate.  So make sure your offer has a condition in it that says you must be satisfied with the results before the employment relationship can commence.  If you really cannot wait for this, then make sure your employment agreement gives you an out clause.  If you are unsure, seek advice.

The other learning from the Fonterra case is that even if the criminal record shows that they are obviously unsuitable to drive your tanker, follow a fair and procedurally correct disciplinary process or it will cost you time and money. Again, seek advice as soon as the issue arises.

If you are not already checking criminal records of prospective employees, you may want to reconsider and get their consent to do so.   Granted, it is not uncommon to hear managers laugh and say if we did that we wouldn’t have anyone employed in our business.   Jokes aside, not all convictions will be a bar to employment – one excess breath alcohol oops a few years ago may be overlooked, but a recidivist with a string of traffic convictions surely has a problem with following the rules.   Possibly not who you want in charge of your 44 tonne tanker!

by Shelley Spencer