Ask a Lawyer: Does an employee facing charges have to tell HR?

Criminal record checks are usually carried out at the start of employment and organisations often fail to keep them updated – should employees be the one to speak up if something happens?

Jennifer Mills is a partner with Anthony Harper – she says staff members aren’t necessarily obligated to inform their employer if they commit and subsequent offences.

“Generally speaking, every person has a right not to be compelled to provide information that incriminates them,” says Mills.
“As such, employees are not generally required to inform their employer where they have engaged in actions which would amount to a crime.”

However, Mills says employees are subject to a duty of good faith under the Employment Relations Act and points to the case of ASG v Harlene Hayne, Vice-Chancellor of the University of Otago as an important example.

“The Court of Appeal made an important finding that the employee had breached the duty of good faith to his employer by not disclosing the fact that he was facing charges of assault and wilful damage,” says Mills, who heads the firm’s national employment law practice.

In the case, ASG was a security guard working for Campus Watch, the University of Otago's security team. 

He pleaded guilty to one charge of wilful damage and another of assault in the Dunedin District Court but was discharged without conviction on both charges.

“The Employment Court found that ASG's job meant that he was responsible for student safety and the protection of University and student property,” says Mills.

“The charges he faced were directly relevant to whether he could carry out his duties properly, and the University needed to have trust and confidence that he would act appropriately in stressful situations.”