Dismissal for failing to pass a National Police Check: A case of Unfair Dismissal in WA?

The valid reason for dismissing an employee must exist at the time of the dismissal. When a valid reason for dismissal is found after an employee has already been terminated, the belated valid reason cannot be invoked to justify the earlier dismissal.

The ruling in the case of Kelvin Njau v Superior Food Group Pty Ltd [2018] FWC 7626 illustrates this:

A store worker for a food company was hired sometime on 4 April 2017. He was required to consent to a National Police Check and on his application form, he disclosed some of his prior convictions but did not disclose other convictions including his most recent convictions for driving related crimes. A year passed and the store worker continued working until the employer received a full report from the police of all the store worker’s criminal convictions. The food company terminated the employment of the store worker for withholding accurate information regarding all his convictions and insisted that it required its employees to pass the National Police Check and must have clean records.

The store worker filed a complaint for unfair dismissal. He had consented to the background check as he was required, and the food company did not act on any of his disclosures. The requirement for the store worker to pass a background check and not have any convictions was not an inherent requirement for the job and the requirement was not made known to him at the time he applied for the position. He was informed only that he had to consent to a background check. It was not a condition for employment to successfully pass the National Police Check thus, the food company cannot rely on this reason to dismiss the store worker.

The food company then presented evidence that the store worker claimed to have been employed for five years by another food manufacturing company. In truth, the store worker never worked for that company, his wife did. Thus, the store worker knowingly and falsely asserted that he had worked continuously in a relevant and recent position. The food manufacturing company relied on this information when it decided to engage him for the position. Thus, his dishonesty would have been a valid reason for dismissing the store worker. However, the Fair Work Commission found that this dishonesty was not known to the food company at the time he was dismissed but was discovered only during the proceedings for unfair dismissal. It was only after the food company dismissed him did it have any reason not to rely on the store worker to be honest in his dealings.

The FWC found that the dismissal was unfair, but it declined to order the reinstatement of the store worker or make an award for compensation. It reasoned that had the food company known about the dishonesty of the store worker, it would not have hired him at all.

If you have any questions regarding unfair dismissal in Western Australia, contact Perth Employment Lawyers, our lawyers are ready and willing to evaluate your situation.

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