The Employment Relations Authority (ERA) has ordered the reinstatement of an employee who was dismissed after refusing to consent to a background check. The employee raised a personal grievance claim with the Authority after his dismissal.

The employee was asked to consent to a background check prior to receiving an employment offer. He did not complete the consent form, but was sent an offer of employment along with an employment agreement which he signed and sent back to the employer.

The employee was asked to complete this form several times by the employer, but did not do so. Eventually, the employer scheduled a meeting in which the employee was dismissed. The justification for the dismissal was that the employee had failed to follow the reasonable instruction of the employer. As well as this, the employer stated that the employee was contractually obligated to consent to a background check.

The employee argued that he had completed all of the required steps to become an unconditional employee as the recruitment process had concluded. Furthermore, the employee noted that the employee handbook did not contain a provision which stated that an employee must disclose past criminal convictions to the employer.

For the ERA to reinstate an employee, it must first find that the dismissal was unjustified, and then decide whether or not the employee should be reinstated on the balance of convenience.

The ERA agreed with the employee’s claim that the dismissal was unjustified. They stated that it was unreasonable for the employer to dismiss the employer given that the background check wasn’t a contractual obligation, as the employee had already commenced unconditional employment.

The next decision for the ERA to decide whether or not to order the reinstatement of the employee.

It was decided that monetary compensation was not suitable in this circumstance as the

skills and relationships that the employer would have cultivated during his employment cannot be replicated through monetary benefit. The ERA decided that the employee did all that was required of him to gain unconditional employment, and that is was the employer who failed to implement proper process by failing to make sure that a background check had been completed prior to offering the employee a job.

The ERA ordered the reinstatement of the employee.

If there is confusion around the proper process when it comes to hiring an employee, it is wise to seek advice from a professional with experience in the area.


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