Criminal Law: How a Criminal Charge Can Affect Your Employment
Being charged with a criminal offence is stressful enough, but the consequences can extend far beyond the courtroom. One of the most significant concerns people face is how a criminal charge may affect their employment. In Australia, Criminal Law interacts closely with workplace law, meaning that both current employees and job applicants can experience lasting effects from a charge or conviction.
This article explores the key ways a criminal charge can impact your career, your rights as an employee, and what you can do if your livelihood is at risk.
Can You Be Dismissed for a Criminal Charge?
Whether you can be dismissed depends largely on the nature of the charge and your role. Australian employers are generally entitled to terminate an employee if:
The criminal conduct directly relates to the job (for example, theft in a finance role).
The charge damages the employer’s trust or reputation.
The employee is unable to fulfil job requirements due to imprisonment or legal restrictions.
However, being charged does not automatically justify dismissal. The Fair Work Act 2009 (Cth) requires employers to show a valid reason for termination that is sound, defensible, and not capricious. If the charge is unrelated to your role, dismissing you may be considered unfair dismissal.
Fair Work Ombudsman provides guidance on what constitutes lawful and unlawful termination.
Do Employers Need to Know About a Criminal Charge?
Generally, you are not required to disclose pending charges to your employer unless:
Your employment contract, workplace policy, or industry regulations demand disclosure.
The charge affects your ability to perform your duties (e.g., loss of a driver’s licence when driving is essential).
The charge is relevant to a position of trust, such as teaching, healthcare, or financial services.
Failing to disclose when required can itself be grounds for disciplinary action or dismissal. Always review your employment contract and workplace policies to understand your obligations.
Criminal Records and Job Applications
A criminal conviction can appear on a National Police Check, which many employers request during recruitment. While employers cannot discriminate unfairly, they are allowed to consider whether a conviction is relevant to the role.
For example:
A fraud conviction may disqualify you from financial positions.
A conviction for assault could prevent you from working in childcare or aged care.
Some industries, such as law, health, and government, have strict character and suitability requirements.
The Australian Human Rights Commission advises that employers should only refuse employment if the offence is directly relevant to the role (see more)
Pending Charges vs. Convictions
It’s important to distinguish between charges and convictions.
Pending charges: Appear on a police check in some cases, but may not automatically disqualify you.
Convictions: More serious, as they form part of your permanent criminal record (though some may become “spent convictions” after a certain period).
Employers may treat pending charges differently depending on industry and workplace risk assessments.
The Role of Spent Convictions
Australian law provides some protection through the Spent Convictions Scheme, which allows certain convictions to become “spent” after a crime-free period. Once spent, they generally do not need to be disclosed, and they won’t appear on most standard police checks.
This scheme varies slightly across states and territories, so it’s important to understand the rules where you live.
Protections Against Unfair Treatment
Employees in Australia are protected from certain forms of discrimination under both federal and state laws. While employers may act on relevant convictions, they cannot lawfully dismiss or refuse employment simply on the basis of a criminal record unless it is inherently related to the job.
For example:
Rejecting a candidate with a minor conviction for shoplifting from 20 years ago may be discriminatory if the role is unrelated.
However, a candidate with a recent theft conviction applying for a retail cash-handling role may reasonably be refused.
If you believe you have been unfairly treated, you can lodge a complaint with the Australian Human Rights Commission or pursue an unfair dismissal claim through the Fair Work Commission.
Professional Licensing and Registrations
Many professions require licences, clearances, or registrations. A criminal charge may lead to suspension, cancellation, or refusal of:
Working With Children Checks
Security and firearms licences
Health practitioner registrations
Legal practising certificates
Each authority applies its own assessment of whether you are a “fit and proper person.”
Seek immediate legal advice - A lawyer can help you understand your rights and the potential implications.
Check your contract and workplace policies - Be clear on disclosure obligations.
Consider applying for non-conviction outcomes - In some cases, courts may deal with a matter without recording a conviction.
Prepare to explain - If applying for jobs, be honest but emphasise rehabilitation, character references, and the irrelevance of the charge to the role.
A criminal charge can significantly affect your employment, but the impact depends on the nature of the charge, your industry, and how you manage the situation. Understanding your rights under Criminal Law and workplace protections is essential to safeguarding your career.
At New South Lawyers, our team of Criminal Law specialists understands the serious consequences that criminal charges can have on your employment and future. We provide clear, strategic advice to protect your rights and minimise the impact on your career.
