Sacked over a police check, but a false résumé cost him any remedy

What happened

Kelvin Njau started work as a storeworker at Superior Food Group, a food business in Melbourne, on 4 April 2017. When he applied, he was asked to consent to a National Police Check, a search of police records for any criminal convictions, and to list his past convictions on a form.

He signed the consent. On the form he listed some older convictions but left out others, including more recent driving-related convictions and his most recent, and most serious, conviction. The police check came back to the company in full on 19 April 2017, so from that day it knew his whole record.

Nothing happened for more than a year. Then, after an audit in mid-2018, the company dismissed him on 11 July 2018. The stated reason was that he had failed to successfully pass a National Police Check without conviction.

The claim

Mr Njau applied to the Fair Work Commission on 26 July 2018 for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Cth). He said the company had known about his record for over a year, and that a clean record had never been a requirement of his job.

The company said it was a condition of employment that he pass the check, and that he had been dishonest about his convictions. The Commission found he was protected from unfair dismissal: he had worked full time for more than 12 months, the company was not a small business, and there was no redundancy.

Why the police check was not a valid reason

A dismissal is unfair if it is harsh, unjust or unreasonable. To decide that, the Commission works through the factors in s 387, starting with whether there was a valid reason for the dismissal related to the worker's capacity or conduct.

Commissioner McKinnon did not believe Mr Njau's explanation that he had simply forgotten some convictions or run out of room on the form. But the company had received his full record on 19 April 2017 and done nothing with it. Having waited more than a year, it could not now rely on his failure to disclose as a valid reason.

Nor had the company shown that a clean record was a condition of the job. None of its documents said so. At most, Mr Njau had to consent to a check, and he did. The Commissioner added that an employer could not impose a no-convictions rule without a real connection to the inherent requirements of the role, meaning the things the job genuinely needs. The company had tried to 'retrofit' that condition to his contract after the fact, which the Commissioner called an entirely unjust approach.

The lie on the résumé

The hearing then turned up something the company had not known. In giving evidence, Mr Njau admitted that his résumé claimed more than five years at a biscuit manufacturer where he had never worked. The referee he gave for that job was his wife, who had not worked there either. It was his only job, on paper, lasting more than a year.

The Commissioner found that this dishonesty was a valid reason for dismissal, because the company could not reasonably rely on him to be honest with it. But the company had not known about it when it dismissed him, so it could not have told him about it or given him a chance to respond.

What the Commission decided

Weighing all the s 387 factors, the Commission found the dismissal unjust, and so unfair, because it proceeded on a basis that was not legitimate, even though a valid reason later came to light. It also said the company, which said it had 106 employees at its Oakleigh site and had its own human resources staff, would have been prudent to get outside advice, given the mix of employment and discrimination law involved.

Winning on unfairness did not bring a remedy. Reinstatement, meaning getting the job back, was inappropriate because the company could not trust him to be honest. Compensation was refused too: had the company known of the dishonesty, it would have had a valid reason to dismiss him.

The Commissioner also noted that the federal human rights laws Mr Njau relied on do not themselves make criminal record discrimination unlawful. But the Commissioner warned that a blanket rule that nobody with a record can get or keep a job is prone to difficulty, and that any police check requirement should be fairly applied and targeted at a real risk.

What this means for you

If you are dismissed over a police check, the questions that matter are whether a clean record was actually a term of your job, whether it is genuinely needed for the role, and how long the employer sat on the information. An employer that knew about a record and did nothing may struggle to rely on it later.

But this case also shows that a claim puts your own conduct under the spotlight. Dishonesty that comes out at a hearing, such as a false résumé or a made-up referee, can wipe out compensation even where the dismissal itself was unfair. If you are an employer, write any police check requirement into the job's terms, link it to the role, and act promptly on what the check shows.

Time limits are short: an unfair dismissal application to the Fair Work Commission must be lodged within 21 days of the dismissal taking effect.