Negative or incomplete results can show up in a pre-employment check.

For example, you may discover a candidate has a history of misconduct or a criminal record.

When this happens you’ll need to decide if it poses a risk to the organisation or affects the candidate’s ability to perform the role.

If a candidate has a history of misconduct, hiring managers can’t be involved or see any information collected as part of the misconduct screening. Instead, the consideration panel will advise the hiring panel on whether the candidate is suitable to employ or not.

It may not be appropriate to continue with the candidate unless there are exceptional circumstances. It’s up to the organisation to decide what exceptional means to them.

Consider the following risk factors:

  • the nature, severity and frequency
  • the length of time since it took place
  • any mitigating or extenuating circumstances
  • the type and severity of any penalty imposed
  • relevance to the role – is it an information, financial or safety risk?
  • what’s happened since the incident or concern took place – for example, has the candidate had a steady employment record and positive references since?

If the candidate has a criminal record, the panel should consider if they committed the crime as a juvenile or an adult.

What to do if you decide not to make an offer

If you decide not to offer a candidate the role based on your assessment and the advice of the consideration panel, record this decision and any supporting evidence.

Every candidate has the right to natural justice, this means you must:

  • let them respond to their declaration of misconduct
  • answer any reasonable questions they have
  • protect them from unlawful discrimination.

It’s not considered discrimination if they’re denied employment if:

  • they have a criminal record that would affect their ability to perform the inherent requirements of the role
  •  another exception applies to the conduct of the employer.

You must let any internal review or complaints process finish before you offer the role to another candidate.

You still need to screen your next preferred candidate.

If you do make an offer despite misconduct

If you decide there is a low level of risk for the organisation and offer a candidate the role, record this decision and any supporting evidence with the recruitment team on the selection report.

You can then continue your normal recruitment process and complete all other pre-employment screening required.

The rights of the candidate

Individuals have the right to privacy and freedom from discrimination. It’s legislated in the:

If you’ve requested a police check, the following legislation applies:

  • Australian Human Rights Commission Act 1986 (Cth) and the Australian Human Rights Commission Regulations 1989 (Cth) – discrimination means any distinction, exclusion or preference made on the ground of criminal record, apart from that based on the inherent requirements of a particular job.
  • Equal Opportunity Act 2010 (Vic) – from 1 December 2021, discrimination on the basis of a spent conviction is unlawful.
  • Spent convictions are defined under the Spent Convictions Act 2021 (Vic) and include Victorian offences where 10 years have elapsed (for adults). This is unless they fall within specific categories of serious offences (including sex offences or prison terms over 30 years).