rescreening employees

The COVID-19 lockdowns have forced many employees to work from home or be laid off.

The abnormal ‘pressure cooker’ home environment has led to many abnormal behaviours, out of character aberrations and mental health manifestations, many unreported in the media.

The rolling clouds of uncertainty, upheaval and desperation have precipitated an increase online activities, cyber-crimes and domestic crimes. This includes hacking into company websites, company fraud and money laundering. 

The Crime Statistics Agency revealed that in Victoria, family violence increased by 9.4 per cent in 2020 to 92,521, the highest number on record. Much of this was anticipated by ‘added family stresses’. Drug offences had increased by 20 per cent, sex offences increased by 10.2 per cent, and thousands of fines were issued for ‘breaches of health directives’. Many of these employees would need time-off for court hearings, which they may choose not to declare for fear of dismissal and compounding current stress.

These facts and statistics are overshadowed by the daily news tally of new infections and deaths.

Within this ‘pressure cooker environment’, courts were inundated with the rise of ‘first time family violence’.

As employees are called back to work and previous employees are rehired, employers may be oblivious to personal and criminal events that may have transpired and dramatically affected their employees. These events during this ‘dark tunnel’ may not fairly reflect the character of the individuals but may now adversely affect their careers.

The Background Screening, Criminal History and Financial Checks on file do not update themselves automatically. Employers need to make this happen, with the employee’s written consent.

Criminal checks are considered a ‘point in time’ check only, reflecting the police records at time of release, which may be many years ago.

As the Job Keeper payments expired on 28 March, the employment landscape changes again with more candidates seeking employment and needing background screening.

Due Diligence is not a one-off ‘tick box’ checklist that stops at onboarding. Diligence is Due regularly. As the business environment evolves, clients expand and laws change, so do employees.

During the lockdowns, employees may have behaved ‘out of character’, leading to criminal charges, court proceedings, heightened anxiety and paranoia about being ‘found out’. These cumulative factors adversely affect employee performance at work.

It is far better to conduct the Re-Screening now and have confidential conversations with the employee, than find out through stress-related behaviour that manifests itself in the workplace. Worse still, clients may read about the misdemeanour in the media. This prevents internal disputes and accusations when there are suspicious discoveries such as large transactions into an offshore bank account. Re-screening can act as a catalyst to burst the pressure bubble and enable both parties to make informed decisions.

Without re-screening, a blind spot remains that can harm both the employer and the employee. 

Background Screening is an integral part of due diligence and a professional responsibility that comes with human rights parameters.

An employee must provide written consent for an official criminal record check.

The Australian Human Rights Commission Act prohibits discrimination on the basis of a criminal record, unless it is demonstrably pertinent to the inherent requirements of a job. The onus is on the employer to prove that the inherent requirements are essential to the position, not incidental or a ‘tight correlation’. Similarly, if being a ‘fit and proper person’ or of ‘good character’ is an inherent requirement of the job, this needs to be proven.

There is no absolute obligation to answer a question about criminal record – it depends on relevance to the job.

If honesty and trustworthiness are inherent requirements of a job, then failing to truthfully answer a question may not be grounds for a discrimination complaint.

If criminal records are relevant to a particular job, this needs to be clearly stated in the job vacancy advertisement as follows:

‘All final applicants for this position will be asked to consent to a criminal record check. Please note that people with criminal records are not automatically barred from applying for this position. Each application will be considered on its merits’. 

As with the re-screened employees post-pandemic, this encourages an ‘open exchange’ of information at the early stages of the recruitment process rather than down the track.

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