Coming on board with a criminal record

In brief

The Australian Human Rights Commission (the AHRC) decided that a New South Wales company discriminated against a prospective employee by rescinding an offer of employment after discovering her criminal record.¹ Senior Associate Laura Miller, Lawyer Sarah Lunny and Vacation Clerk Tallan Crowe report.

How does it affect you?

• In several Australian states, employees and job applicants can only make complaints of discrimination on the basis of criminal record to the AHRC. However, in Tasmania, the Australian Capital Territory and the Northern Territory, complaints of discrimination on the basis of an irrelevant criminal record can be made under state or territory anti-discrimination legislation.
• Employers seeking to exclude job applicants and employees from the workplace on the basis of a criminal record must ensure that they:
  • can demonstrate a close connection between the criminal record and the person's ability to perform the role's inherent requirements. A criminal record alone will not be enough to impute bad character or an inability to perform the inherent requirements; and
  • give individuals with a criminal record an opportunity to explain the circumstances surrounding their offending, and any subsequent rehabilitation, before determining whether the person can fulfil the role's inherent requirements
• can demonstrate a close connection between the criminal record and the person's ability to perform the role's inherent requirements. A criminal record alone will not be enough to impute bad character or an inability to perform the inherent requirements; and
• give individuals with a criminal record an opportunity to explain the circumstances surrounding their offending, and any subsequent rehabilitation, before determining whether the person can fulfil the role's inherent requirements.

Background

Ms Smith applied for the position of Mobile Speed Camera Operator (MSCO) at Redflex in NSW.

After attending an interview, Redflex made an offer of employment to Ms Smith, conditional on the results of a national police check. She anticipated that the police check would reveal her criminal record, which included convictions for assault and drug possession when she was 19 and 22 years old (respectively), and informed Redflex of this.

After receiving the results of Ms Smith's police check, Redflex rescinded its employment offer. It advised her that it was withdrawing the offer because of her criminal history.

Ms Smith made a written complaint to the AHRC, alleging that Redflex had discriminated against her on the basis of her criminal record. In making the complaint, she relied on the provisions of the Australian Human Rights Commission Act 1986 (Cth) that allow the AHRC to investigate complaints of discrimination on the basis of criminal record.

Redflex denied that it had discriminated against Ms Smith. It argued that the nature of her criminal offences meant that she could not perform the inherent requirements of the MSCO role, which included being trustworthy and of good character, and behaving calmly and professionally in hostile situations.

The decision

The AHRC concluded that Redflex's decision to withdraw the offer of employment amounted to unlawful discrimination.

It did not accept Redflex's argument that Ms Smith could not perform the inherent requirements of the MSCO role. It stated that the mere fact she had committed criminal offences did not necessarily mean that she could not control her behaviour under pressure, or meet the standards of good character and trustworthiness required for the MSCO role.

The AHRC also criticised Redflex for not giving Ms Smith an opportunity to explain the circumstances of her criminal offences; and recommended that it pay compensation to her, update its discrimination policies, and provide training to its management and human resources staff. Redflex accepted all of the AHRC's recommendations and paid Ms Smith $2500 in compensation.