Employers Should Enquire About Criminal Histories By Paul Angus, Partner | August 2006
PETER JOHN MONIE AND OTHERS V COMMONWEALTH OF AUSTRALIA1. DECISION: 13 JUNE 2006 A recent decision of the Supreme Court of NSW found that an employer who was shot a number of times by an employee, placed with him under the Commonwealth JobStart scheme, voluntarily assumed the risk associated with the undisclosed criminal past of the employee once he became aware that the employee had previously been in prison. The Commonwealth Employment Service (“CES”) was found to have breached its duty in failing to disclose the criminal history, but the breach was found too remote to the incident as a result of the plaintiff’s contributing acts.
Facts The plaintiff and his wife ran a cattle and sheep farming property at Thornleigh in rural NSW. From time to time, the plaintiff took on labour and on occasion dealt with the Inverell office of the CES. In March 1993, the plaintiff‘s son spoke to a CES officer about the need to hire a labourer. Darren Winsor (“Winsor”) went to the property for an interview, was subsequently hired and moved with his wife into a cottage on the plaintiff’s property. The CES paid the plaintiff a subsidy under the JobStart scheme aimed at encouraging and assisting those who were out of work to get back into work. Winsor had an extensive criminal history and had served time in jail for assault. The criminal history was known to the CES but was not disclosed to the plaintiff prior to or during the period of employment. On 15 June 1993 the plaintiff was standing in the kitchen of his homestead when he was shot four times from a .22 rifle and sustained injuries as a result of being shot. Winsor was charged, found guilty and imprisoned for the attempted murder of the plaintiff. The plaintiff and his family had never met Winsor before his employment and knew nothing about him or his criminal history. The CES did not inform the plaintiff’s of Winsor’s criminal history despite that it knew that in view of the isolated location of the property that the plaintiff needed employees to be honest, trustworthy and reliable. The CES denied that: • it owed a duty of care to the plaintiff; • if it did owe it duty of care, that it was in breach of that duty; and • the criminal history of Winsor was sufficiently relevant to the prospective employment that it required the referring officer to disclose it to the plaintiff. The CES also pleaded that because the plaintiff had become aware of Winsor’s time in prison during the period of employment, that he voluntarily assumed the risk of continuing to employ Winsor and that accordingly, if the CES was in breach of its duty, the plaintiff had contributed to it by his own negligence.
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Finally, the defendant alleged that it was not and could not be held liable at law for the criminal act of a third party pursuant to the principals in Modbury Triangle Shopping Centre Pty Ltd v Anzil2.
The Judgment The Court found that the CES (and therefore the defendant) must have known when it assessed Winsor’s eligibility for the job that he was “an ex-offender” and had a criminal history, as Winsor would not have been eligible for the JobStart program if he was not an ex-offender. The court found that it was foreseeable to the defendant that Winsor’s history of violence and assault was relevant to the plaintiffs’ decision to employ Winsor and that it had breached its duty by failing to disclose the criminal history to the plaintiff. The privacy considerations regarding disclosing this fact did not relieve the defendant of that duty. The Court also rejected the defendant’s attempt to rely upon the principal and Modbury Triangle v Anzil as it found that there was a special relationship between the defendant and the assailant Winsor that fit within the exceptions to the Modbury Triangle principal. Accordingly, the plaintiff succeeded in establishing a breach of duty of care by failing to warn the plaintiff.
Contributory Negligence The facts were that the plaintiff and his son became aware of Winsor’s criminal history sometime early in his employment and that they did not take any active steps to terminate his employment or make any adjustments to the grounds of his employment. In failing to ask Winsor an appropriate question relating to his criminal history during the employment interview, the plaintiff was negligent themselves. The Court assessed negligence on behalf of the plaintiff and the defendant as equal at the commencement of the employment but at two thirds to the defendant and one third to the plaintiff after that time.
Voluntary Assumption of Risk The Court found that despite the plaintiff’s denial that he was aware of Winsor’s time in prison, that he became aware of this fact sometime shortly after commencement of Winsor’s employment. As a result, the Court found that in deciding not to ask any further questions of Winsor or make any change to his employment, the plaintiff “took the risk” of maintaining the presence of Winsor on their property. By deciding to “keep their eyes closed and hope for the best” the plaintiff’s voluntarily assumed any risk that Winsor might repeat his violent criminal activity. The Court found that from the time the plaintiff made this choice to assume the risk, which was found to be well before the time of the shooting, the CES ceased to be responsible at law for its breach of duty. On the basis that the plaintiff had voluntarily assumed the risk despite the finding of breach against the employment agency, the Court found in favour of the defendants and the plaintiff’s action failed.
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Implications While the judgment is only that of a single judge of the Supreme Court and it is unclear yet whether the matter will be appealed, the finding in favour of the defendant based upon the plaintiff voluntarily assuming the risk of employment of a violent employee is a significant one. The decision will serve as a warning to all host employers who obtain labour from a labour hire company. If the host employer becomes aware of a criminal history or violent tendency of the employee that had not been disclosed by the labour hire company and may need to take some action to dismiss the employee or modify their employment. If the labour hire employee causes injury or damage during his or her employment, any breach likely to be found against the labour hire company for failing to disclose the criminal history at the time of employment may not ground an action against the labour hire company despite their breach. Applying the principles of this case, when obtaining labour from such companies, host employers will need to ask both the labour hire company and the assigned worker of any criminal or relevant history that may alter the host employer’s decision to maintain the hire of their labour. In the absence of asking the question and subsequently becoming aware of such a history, the host employer may need to take some action to alter the employment of that person to avoid any subsequent finding that it had “voluntarily assumed the risk” in relation to any incident that may occur as a result of criminal or violent behaviour of the employee.
End notes (2006) NSW SC 505 [2000] HCA 61
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For more information please contact Paul Angus Partner T: 02 8257 5780 paul.angus@turkslegal.com.au
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