Emil Ford Lawyers

Criminal Record Discrimination - Do you need to give employees a second chance?

Andy (not his real name) had a job in IT. When an outside supplier told Andy’s employer that Andy had been convicted in New Zealand for selling the drug ecstasy the employer first dismissed Andy and then fired him when Andy confirmed that he had indeed been convicted of this offence. However, in Andy’s termination letter, his employer stated that Andy’s employment had been terminated because he was still in his probationary period. Was this an act of discrimination?

Shortly after his dismissal, Andy lodged a complaint to the Australian Human Rights Commission claiming that he had been unfairly dismissed. The Commission looked deeper into this complaint and found that the employee’s criminal record actually was the real reason that the company fired him. The employer alleged that the employee would not be able to perform tasks that the job required because of the employee’s criminal record, but the Commission found that the employee’s past history would have had none or very little impact on what his IT job required of him. Further, the Commission found that the employee had the capacity to do everything required of his position and identified ethical skills and business experience in his employment history. The Commission recommended that the employer:

1.    develop workplace policies in relation to the prevention of discrimination of employment on the basis of criminal record;

2.    conduct training to assist staff to assess fairly whether a job applicant with a criminal record can perform the inherent requirements of a particular job;

3.    pay the employee compensation for loss of earnings caused by the termination of his employment;

4.    pay the employee $5,000 in compensation for hurt, humiliation and distress as a result of being discriminated against.

The employer accepted the first two recommendations but declined to pay the employee any compensation. One of the interesting features of this case is that it was brought in the Australian Human Rights Commission, which highlights that the Commission does not have the power to enforce decisions or to make binding recommendations about a complaint. The employee could not have made an unfair dismissal application under the Fair Work Act 2009 because he was dismissed during his probation period and had not completed the minimum employment period. 

Although adverse action is often a popular alternative to an unfair dismissal application, this avenue was also unavailable in Andy’s case as criminal record discrimination is not a recognised form of discrimination under the Fair Work Act 2009. In fact, the Australian Human Rights Commission reports that only Tasmania and the Northern Territory have laws that make criminal record discrimination unlawful. This means that the unfair dismissal jurisdiction is the primary protection for an employee unfairly dismissed because of a criminal record and this jurisdiction is only available once the employee has completed the minimum employment period.

Employees with a criminal record are therefore vulnerable to discrimination in employment. An employer should in the first instance conduct background checks of all of its potential employees. If employers discover that a current employee has a criminal record, they should carefully consider whether this provides a valid reason for dismissing the employee, such as a safety risk to other employees or vulnerable persons under the employer’s care. If the employer does identify a valid reason for dismissal, then the employer must still ensure that the manner in which they dismiss the employee is fair.

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