New study highlights 'double punishment' faced by employees with criminal records
A new study is calling out the lack of protections for employees in Australia who are being fired by their employers for having criminal records.
Research led by employment law expert, Associate Professor Sandra Noakes, from the University of Sydney, revealed that employees with criminal offences are suffering from "collateral consequences."
"Collateral consequences are the consequences that arise indirectly from a criminal record," the study read.
"They are the disadvantages that individuals with a criminal record continue to face as a result of their conviction and/or the 'offender' label that they carry with them for life."
In employment, collateral consequences could mean convicted offenders facing barriers to employment opportunities.
It noted that there are cases where the relevant connection between an employee's job and the criminal record is clear, such as a direct connection between the offence and the employee's duties.
"In other cases, the connection is tenuous, relating to concerns for the safety of other employees, or the impact on an employer's reputation," the study said.
"This has the potential to result in collateral consequences for employees, that is, invisible punishment beyond that already imposed by the criminal justice system."
According to the study, there is almost no guidance on whether it's fair to dismiss employees for having a criminal record, even if their offences are completely unrelated to work.
"Dismissing an employee for a criminal record that has no relationship to what they do for work is not justice. It's double punishment," Noakes said in a statement.
"The criminal justice system already imposes penalties. Workplaces shouldn't become an extension of that system unless there's a clear, job-specific reason."
Noakes pointed out that a criminal record for drink driving would be relevant for a worker employed as a driver, while a criminal record related to vandalism might be relevant for a schoolteacher.
"However, a criminal record for drink driving or vandalism may not be relevant to the employment of a bank employee, because the record is not likely to relate to the inherent requirements of the bank employee's work," she said.
To prevent these "inconsistent and unjust results" in dismissals relating to criminal records, the study said relevant tribunals should adopt a "collateral consequences" framework.
The framework argues that the impact of criminal stigma is problematic because it can lead to double punishments for convicted employees.
"Applied to unfair dismissal, a collateral consequences framework requires a clear connection between the employment and the employee's criminal record," the report read.
"It necessitates a more disciplined focus concerning whether an employee's criminal conduct relates to the inherent requirements of their work, and requires decision makers to enunciate how the criminal record relates to the employment."
