Person applying for job has criminal record
A job applicant doesn’t have to offer information about their previous criminal convictions if they are not asked to. However, if an employer asks job applicants if they have any previous convictions, they should act in good faith and tell the truth, especially if it is likely that the particular convictions would influence the employer’s decision about hiring them.
Convictions involving violence or dishonesty will almost always influence this decision. Employees don’t have to disclose convictions that are covered by the clean slate rules.
Hiring an employee subject to checks
Employers who want to do criminal record checks and then appoint staff before they get the information back from the Ministry of Justice or Police about criminal convictions should make sure they do the following:
- Application forms should clearly state that applicants must disclose all criminal convictions unless covered by the Clean Slate Act 2004 and tell the applicant to look at the Ministry of Justice website for further information.
- The application form should say what the consequences are if the applicant does not provide honest and complete information.
- The prospective applicant must be asked for their permission before getting their criminal record checked.
- The letter of offer and employment agreement should be clear that the employment is and remains conditional on the employer getting a satisfactory criminal record check.
- The letter of offer or employment agreement should include a clause on the consequences of not being totally honest.
If an applicant or employee provides false information, the employer still needs to follow a fair process and should seek an explanation from the employee (including an applicant who becomes employed). The employee’s explanation must be considered before any decisions are made. The employer may then decide to use the clause in the letter of offer or employment agreement to terminate the employee’s employment.
Instead of making the offer of employment subject to checks, an employer can wait until the checks are completed before making an offer of employment to the person.
Existing employee facing criminal proceedings or convicted of a crime
Sometimes an employer will be entitled to take disciplinary action (which could include dismissal) against an employee who is convicted of a criminal offence. This would usually be done for reasons such as bringing the employer into disrepute, or being against a code of conduct which prohibits unethical or unprofessional behaviour (even if the conduct took place outside work).
When an existing employee is facing criminal proceedings, employers who are deciding whether or not to take any action should remember that a person isn't guilty of a criminal offence unless they have been convicted. The employer will still need to undertake a fair process as with any disciplinary action. See problem solving for information regarding an existing employee who is facing criminal proceedings.
Clean slate rules
The Criminal Records (Clean Slate) Act 2004 means that some people don’t have to reveal their criminal record. You don’t have to apply for this; it happens automatically if you, or an employer ask, for a copy of your criminal record history (from the Ministry of Justice or through Police vetting). In general, this means your criminal record history won’t include minor convictions that didn’t result in a prison sentence, as long as the convictions are seven years or older. See the Ministry of Justice website (external link) to see whether you qualify under the ‘clean slate law’.
Verifying criminal history
Employers can go through:
The Ministry of Justice
The Ministry of Justice can provide:
- a list of criminal and traffic convictions and sentencing from court appearances, but
- it does not include any Youth Court convictions before 1989, and
- it does not list court appearances where the person was found to be not guilty.
Criminal conviction histories do not publish information on convictions that are covered under the clean slate rules.
Employers can’t verify a person’s criminal conviction history without their consent.
For more information visit the Ministry of Justice website (external link)
The NZ Police Vetting Service provides:
- criminal history checks and other relevant information on potential and current employees or volunteers only to Approved Agencies that provide care to children, older people and vulnerable members of society in New Zealand
- criminal history checks for overseas visas and work permits
- Police vetting.
Police vetting will release information that they think is relevant to the position the person is applying for, and may include:
- conviction history
- location of the court
- the date of the offence
- the offence itself
- the sentence imposed
- traffic infringements
- any interaction, including as a victim, with Police, whether it resulted in a criminal conviction or not
- any family violence information
- information about violent or sexual behaviour that did not result in a conviction.
- information relating to Diversion.
A prospective employer can’t use police vetting as part of their short-listing process and they must:
- explain the Police vetting process to the person
- get the person’s consent to Police vetting
- keep their personal information confidential and secure
- explain the purpose for retaining and how long the vetting information will be retained for (an agency must not retain documentation longer than 12 months after the end of the vetting process unless a longer period is required by legislation)
- let the person see the information received from Police
- provide an opportunity for the person to correct information or provide an explanation
- securely destroy information provided by Police when the purpose of the vetting check has been completed ie employment process, internal/external audit.
For more information on Police vetting, visit the New Zealand Police website (external link) .