Checks and Balances: Background checks in the workplace

James Zeng, Senior Associate

Recent news reports about the possibility of persons convicted of sex offences being employed in workplaces where minors also work, has caused some employers to review their recruitment processes and the background checks they conduct.

Some employers are unsure as to which type of background check should be conducted and the differences between working with children checks and police or criminal record checks. In particular, some employers have questioned whether they need to conduct working with children checks where they employ both adults and minors (less than 16 years of age) in the same workplace.

Working with Children Checks

The Child Protection (Working with Children) Act 2012 (NSW) defines what “child-related work” is. Child-related work includes work involving children in education, sport, transport services, entertainment and health services. The requirement to obtain a working with children check clearance applies where a “worker” (which extends to employees, contractors, volunteers) undertaking “child-related work’ has “direct contact” with children (defined as physical or face-to-face contact) or is employed in a “child-related role”. The work must be “child-related work” for an employer to register online to verify their workers’ or prospective workers’ working with children check.

Police or Criminal Record Checks

A police or criminal record check may be an alternative avenue for conducting background checks. A police or criminal record check will be mandatory where it is a legislative requirement of the position that employees or job applicants not have a criminal record. Beyond this situation, employers can seek the consent of their employees or prospective employees, but this is limited to where a person’s criminal history is relevant to the inherent requirements of the role. To act otherwise may constitute discrimination in employment on the basis of criminal record.

Our table below outlines some of the differences in New South Wales, in the process between Police/Criminal Record Checks and Working with Children Checks.

Negotiation Strategies in the Workplace

One of the most underdeveloped skills for professionals is the art of negotiation. Joydeep Hor, in this unique Webinar, shared some of the theory and practice of effective negotiations in the workplace.

Some of the topics covered included:

  • Anchoring.
  • Ultimatums.
  • Saving face.
  • Creating value in a deal.

​Can I have a sample please? Best practice tips for drug testing

Jessica Anderson, Graduate Associate

recent decision of the Fair Work Commission highlights the stringency required when conducting drug testing on employees.

In this case an employee refused her employer’s direction to provide a urine sample by:

  • objecting to her immediate supervisor collecting it because it was inappropriate to have someone she knew, and worked with closely, taking the sample; and
  • stating that the collection was not in accordance with the employer’s policy.

The employee was subsequently dismissed for serious misconduct in relation to her failure to follow management’s reasonable direction to undergo a urine drug test to determine if she had any illicit drugs in her system.

The Commission determined that it was not best practice to take a urine drug sample from a person you work with and know, and certainly not from a person you directly manage. The employer also did not comply with its own collection protocols when proposing to undertake the drug testing.

Ultimately, it was held that there was no valid reason for the dismissal based on a number of factors (including the provision of a valid medical certificate and a willingness by the employee to provide a urine sample at a later date). Even if there had been a valid reason, the lack of procedural fairness afforded by the decision-makers and the uncertainty as to the reasons for dismissal would have rendered the dismissal unjust.

Lessons for employers

  • Establish a clear drug testing policy and comply with it.
  • Consider the most appropriate individuals to undertake the testing and do not allow managers to undertake testing of their direct reports.
  • Be clear on the steps required under a policy and the reasons for dismissal. An unclear drug testing policy and unclear or confused reasons for dismissal may result in a dismissal being held to be unfair.

The investigation is biased! When to consider an external investigation

Jessica Anderson, Graduate Associate

The Fair Work Commission has identified that it may be prudent for employers to engage an independent third party to conduct a workplace investigation where an employee vigorously asserts that an internal investigation into bullying allegations will lack transparency or independence.

Background

In a recent decision of the Fair Work Commission, an employee claimed she had been bullied at work by her manager, against whom she had made a number of complaints previously. The allegations were the subject of two internal investigations that found the manager had acted reasonably. However the employee insisted that the investigations produced an unfair result.

Deputy President Sams was satisfied with the employer’s internal investigations, finding that they were “sound, appropriate and responsive” and allowed the employee “every opportunity” to present her version of events, and noted that it was the employee who was acting unreasonably.

In making his determination, Deputy President Sams said that “no matter what the result of any investigation of her complaints, particularly those conducted by the employer” the employee was “not prepared to accept any outcome, unless it unequivocally vindicated her complaints”. He then went on to recommend an external investigation where it is clear that the employee will not accept the findings of an internal investigation.

Lessons for employers

  • Consider engaging an independent third party to conduct an investigation where it is apparent that an employee will not accept the findings of an internal investigation.
  • Be mindful where an employee’s focus appears to be on exacting revenge or retaliation. That is not the intent of the bullying jurisdiction.
  • A best practice investigation will be “sound, appropriate and responsive” and will provide the employee with every opportunity to present their version of events.
  • Even though an employee is asserting that they are being bullied, this does not mean that they are insulated from any disciplinary action. For example, it may be appropriate for an employee to be disciplined where there is a constant refusal to comply with the reasonable directions of their manager.