The Human Rights Commission has recommended an employer update anti-bias policies that provided insufficient guidance on how to avoid discriminating against an employee with a prior conviction for selling drugs.
In considering a complaint from a former Data#3 Limited employee who alleged he was dismissed on the basis of his criminal record, the AHRC found the company's anti-discrimination guidelines provided little clarification about what criminal record discrimination was, how to deal with prospective employees with criminal convictions and preventing discrimination in the workplace.
The AHRC further recommended that Data#3 provide training for HR and management employees involved in the recruitment and selection process.
"This training should assist staff to assess fairly whether an individual with a criminal record can perform the inherent requirements of a particular job," the AHRC found.
Employer said police check wasn't necessary, claims employeeIn reporting its findings, the AHRC held that Data#3 discriminated against the IT 'solution specialist' when it dismissed him in January 2014 because of his "serious criminal record".
The specialist began working at Data#3 on January 6, but it dismissed him a few weeks later after a major supplier told the company about his criminal past.
The specialist had served a one-year home detention sentence after being convicted by a New Zealand court on six counts of selling MDMA in 2011.
While failing to disclose this information prior to his employment with Data#3, the specialist claimed that he asked on two occasions during the interview process whether he needed to pass a criminal record check or required a security clearance.
He said that Data#3 assured him that this was not a condition of his employment.
Data#3 denied discriminating against the specialist on account of his criminal record, arguing that it was entitled to end the employment relationship during the probationary period for any reason.
It said it reviewed the specialist's suitability and had concerns about his ability to perform the inherent requirements of the job.
Data#3 argued the specialist's "recent and serious criminal actions" were inconsistent with is core values and its requirement that all employees demonstrate high ethical standards.
It also rejected the specialist's claims that it did not require him to undergo a police check, saying it might be necessary for him to pass a security clearance given some of its clients were government departments.
Data#3 argued its ultimate decision to dismiss the specialist was not based on his criminal record, but because his failure to disclose his criminal record called his integrity into question.
"We formed an internal view that this amounted to dishonest conduct and his employment became untenable on that footing alone," Data#3 said.
"If [the specialist] had volunteered the relevant information, this would have been assessed fairly and equitably as part of the recruitment process."
The dismissal was therefore based on the specialist's "lack of candour, lack of good faith, lack of demonstration of Data#3 core values and his lack of honesty".
Data#3 said the specialist, who was "duty bound" to disclose his criminal record, failed in his obligations to divulge this information.
"Excluded" on basis of criminal conduct: AHRCThe AHRC nevertheless concluded the specialist's criminal record was part of the reason Data#3 had dismissed him.
"It is evident from Data#3’s submissions that once Data#3 became aware of Mr AW's criminal record, it became concerned about his suitability for the role and his ability to perform the inherent requirements of the role and decided to terminate his employment," the AHRC said.
The AHRC said it was not necessary for it to find that the criminal record was the sole reason for the exclusion under s3(1) of the Australian Human Rights Commission Act.
It found Data#3's reason to end the specialist's employment constituted an exclusion on the basis of his criminal conduct.
The AHRC also rejected Data#3's claims that obtaining a security clearance or passing a police check was an inherent requirement of the specialist's position.
The fact that an external client might require a security clearance as part of a Data#3 project did not mean it was an inherent requirement of the position, the AHRC found.
Data#3 maintains it was legally entitled to dismiss the specialist within his probationary period and that his criminal conviction precluded him from performing the inherent requirements of his role.
The AHRC recommended that Data#3 pay the employee $5,000 in compensation for hurt, humiliation and distress as a result of being discriminated against, and a further $71,639 for economic loss incurred after his dismissal.
In response, Data#3 "respectfully" declined to pay any compensation.
Discrimination "not unlawful"Employment law firm McDonald Murholme senior associate Trent Hancock told Workplace Express that employers should always adopt policies that aim to prevent discrimination in the workplace.
"This should include policies that prevent unlawful discrimination during the recruitment process by providing a fair and objective selection criteria," he said.
"If Data#3 had an issue with employing workers with a criminal record, it should have conducted a police check prior to the commencement of [the specialist's] employment or at the very least requested a declaration from [the specialist] regarding any prior criminal record."
Regardless of the AHRC's findings, it is unable to enforce the recommendations.
Discriminating against a job applicant because of their criminal record is not unlawful under federal anti-discrimination law, explained Hancock.
"Rather, it is only prohibited at an international level under the International Labour Organisation Convention 111," he said.
"The Convention, in conjunction with s11 and s31 of the Australian Human Rights Commission Act and regulation 4(a)(iii) of the Australian Human Rights Commission Regulations, only gives the AHRC the power to investigate alleged instances of discrimination on the basis of criminal record and prepare reports for the Attorney-General."
Hancock said there were limited options available to the employee in terms of pursuing the AHRC's recommendations and that he did not have access to unfair dismissal laws because he was dismissed within his probation period.
Data#3 told the AHRC it will develop workplace policies to prevent discrimination on the basis of criminal record.
Once this policy is ratified, it will use it train relevant employees on how to fairly assess whether a job applicant with a criminal record can perform the inherent requirements of a particular job.