Employers have right to know about criminal charges

General / 25 May 2017
Employers have right to know about criminal charges

The Supreme Court in ASG v Harlene Hayne, Vice-Chancellor of the University of Otago has confirmed an employer may have the right to know details of charges or offences regardless of any non-publication or suppression orders that may be in place.

Case Summary
ASG, a Campus Watch security guard for the University, was charged with two offences, wilful damage and assault, for conduct occurring outside of work.  He pleaded guilty to the charges and was discharged without conviction, including because he was “extremely likely” to lose his job otherwise.  An order was made for the suppression of his name and all details relating to the offending.  The order specifically prevented “publication” of these details.

ASG had not mentioned the charges to his employer; however the University’s Deputy Proctor had been tipped off and was sitting in the public gallery during the court hearing.  The Deputy Proctor then informed the Vice Chancellor of the University.

ASG was subsequently suspended from his workplace while an investigation was carried out.  He received a final written warning in relation to the matter, and then raised two personal grievances in relation to the suspension and final written warning.  He claimed the details of his offending were suppressed and his employer could not, therefore rely on those.

The issue of whether the University had breached the suppression order was originally heard in the Employment Court, before it was challenged in the Court of Appeal.  Both Courts found in favour of the University.  The Court of Appeal commented that the University had a “genuine interest” in the information and that ASG had breached his duty of good faith by not disclosing the charges.  ASG appealed this decision to the Supreme Court.

The Supreme Court confirmed that the suppression order applied to communications made verbally, including by “word of mouth”, as well as those in writing.  However, the Supreme Court held that the order did not prohibit the dissemination of the information to persons with a “genuine need to know”, or “a genuine interest in knowing”, and that the genuine need or interest is to be assessed objectively.

Applying this test to the facts, the Supreme Court held that given ASG’s role included protecting students on campus, the University had a genuine interest in knowing he had pled guilty to an offence of violence against his spouse.  Therefore the outcome was that there was no breach of the suppression order.

What this means for you
This case confirms the employer may have right to know details of charges or offences regardless of any suppression orders that may in place.  Further, that the duty of good faith extends to requiring an employee to disclose charges against them to their employer.  Importantly, there must be a link between the charges and the employee’s employment..

If you have a question about the implications of this decision, please contact us

Disclaimer:  We remind you that while this article provides commentary on employment law topics, it should not be used as a substitute for legal or professional advice for specific situations.  Please seek guidance from your employment lawyer for any questions specific to your workplace.
May 2017

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