22 March, 2017
The stigma of having a criminal record is often severe. The disapprobation associated with it is a factor which adversely affects the individual’s perceived employability, potentially diminishing the prospects for rehabilitation and assimilation into community. But to what extent are employers allowed to pry into the past of prospective employees, and what kind of infraction deserves repercussions that extend beyond punishments that have already been meted out so that it is permissible to curtail the livelihood of individuals, bearing in mind that criminal offences have varying degrees of severity and culpability?
There are laws which expressly exclude individuals with criminal convictions from entering certain professions. For example, an individual who wishes to be admitted as an advocate and solicitor must be a person of good character and has not been convicted in Malaysia or elsewhere of a criminal offence as would render him unfit to be a member of his profession. In other cases where there are no such proscriptions, two important questions arise:
- Can employers exclude job applicants on the basis of his/her criminal record?
- Are employees required to make such disclosures?
Previous criminal convictions
The case of Khamis Che Rose v Malaysian Resources Corporation Berhad [2007] 2 MELR 637 might offer some insight. Briefly:
Employers have a discretion in the selection of candidates
An employer who offers an employment opportunity to a candidate knowing full well that the candidate has a criminal record, is considered to have done so in good faith
In so doing, the employer will be deemed to have waived his right to take any disciplinary action against the employee relating to his previous criminal record.
However, in the event the employee offends or repeats any of his criminal acts during his employment, the employer is entitled to take necessary disciplinary action and the similar or related past criminal acts can be considered as part of the decision whether to terminate the employee
In other words – an employee with a criminal record must accept in good faith the generous gesture of the employer in offering him employment, and the employee must appreciate this and repay it with hard work, honesty and faithfulness. The employee must not betray the good faith extended to him, and if he chooses to commit another offence of a criminal nature during such employment, the employer certainly has the right to terminate him.
The judgment in the above case is consistent with the general view with regards to an employer’s freedom in the selection of employees. Malaysia does not have any specific legislation to deal with employment related discrimination, which is unfortunate, considering the impact that it would have on previous offenders’ opportunity for gainful employment.
In contrast, the International Labour Organisation Discrimination (Employment and Occupation) Convention 1958 (ILO 111) (“Convention”) prohibits all discrimination and exclusion in employment.Discrimination includes “such other distinction, exclusion or preference which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation…” and the words “other distinction” is arguably wide enough to encompass criminal records. Malaysia as a member state of the ILO, has yet to ratify the Convention.
This is not to say that there are no justifiable grounds for employers to refuse to employ those with criminal convictions. In Australia for example, the Australian Commission on Human Rights provides that it is not discrimination if the “person’s criminal record means that he or she is unable to perform the inherent requirements of the particular job”.
As it stands, the position in Malaysia appears to be that employers still have a wide discretion when determining the kind of individuals they wish to employ. While the law does provide some protection to those who are already employed from being capriciously terminated, our legislation is still lacking in ensuring all individuals are afforded equal opportunities of employment.
Duty to disclose
The Malaysian Industrial Court has previously held that an employee can be lawfully dismissed if, “when applying for the job, he falsely stated that…he had never been arrested”. This is because if an employee makes a representation which is false and thereby secures an appointment, he has acted dishonesty and this warrants termination.
In cases where the job application form expressly requires the candidate to disclose whether they have any criminal records – this is straight forward. A candidate who lies can be terminated later if it is found out that he misrepresented his history.
A grey area exists when the employer does not expressly ask the candidate whether they have been previously charged or convicted of a criminal offence. Does the employee have a duty to disclose or volunteer their history to the potential hirer? Can silence amount to a pre-employment misrepresentation?
Previous cases have held that employees have an “ethical duty” to inform their prospective employer of material facts, since propriety of an employee is always an important consideration for the employer in deciding whether the employee is qualified for permanent employment. However, the courts have also held that employers should “accept some of the blame” if they fail to vet their candidates before making the appointment.
Based on case law, it appears that if certain information about a candidate’s history would be a material consideration for the employer in deciding whether to hire the candidate (eg: criminal history, reasons for leaving the previous job), the safest route for employers is to expressly ask employees about this in a job application form or in an interview.
For further information, please contact:
Donovan Cheah, Partner, Donovan & Ho
donovan@dnh.com.my
