Can we hire an employee with past criminal record in Malaysia?

Can we hire an employee with past criminal record in Malaysia?

A very common question which we have been receiving for the past weeks from HR Practitioners all over Malaysia from respective companies.

In what extent are employers allowed to ‘dig’ into the past of a prospective employee, and what kind of violation deserves an aftermath that goes beyond sentences that have already been carried out so that it is permissible to restrict the livelihood of an individual, bearing in mind that criminal offence or offences have different notches 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 prohibitions. So back to the main question, can an employer hire an employee (prospective) with past criminal record in Malaysia? Is the prospective employee required to make such disclosures on the criminal record?

To answer this, let us look at this case of Khamis Che Rose v Malaysian Resources Corporation Berhad [2007] 2 MELR 637 for 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 judgement 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.

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.

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