Discrimination at work on the ground of criminal conviction

Under regulation 4 of the Australian Human Rights Commission Regulations 1989 a number of acts or events namely any “distinction, exclusion or preference” have been “declared” as unlawful acts of discrimination if they occur because of “(a)  (i)  age; or  (ii)  medical record; or (iii)  criminal record; or (iv)  impairment; or  (v)  marital or relationship status; or   i)  mental, intellectual or psychiatric disability; or    (vii)  nationality; or   (viii)  physical disability; or  (ix)  sexual orientation; or  (x)  trade union activity; or (xi)  one or more of the grounds specified in subparagraphs (iii) to (x) (inclusive) which existed but which has ceased to exist; or (b)  on the basis of the imputation to a person of any ground specified in paragraph (a).

BUT but does not include any distinction, exclusion or preference:  (c)  in respect of a particular job based on the inherent requirements of the job; or     (d)  in connection with employment as a member of the staff of an institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, being a distinction, exclusion or preference made in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or that creed.(sec 3 Australian Human Rights Commission Act 1986.)

The power to make these declarations arises from sec 3 of that Act.

These definitions of what constitutes unlawful discrimination are different from those set out as constituting unlawful adverse action against an employee in the Fair Work Act 2009 which are acts by way of adverse action “because of the person’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.” (see sec 351).

In  AW v Data#3 (2016) AusHRC 105 the Australian Human Rights Commission (yes the same AHRC which by the conduct of its President so often appears to court controversy)  has reported to the Commonwealth Attorney General a finding that an employer breached the act because it terminated the employment of an employee when it discovered that he had been convicted in New Zealand of a relative serious drug offence.

In her report the President wrote that” I find that Mr AW’s criminal record was a reason for the termination of his employment. 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. It is not necessary for me to find that criminal record was the sole reason for the exclusion. In this regard, I note that I accept Data#3’s submission that Mr AW’s decision not to disclose his criminal record during the interview process was also a reason for Data#3’s decision to terminate his employment.……………….. This is a finely balanced case. The offence is a very serious one. There is a close proximity between the conviction and Mr AW’s employment with Data#3. It is difficult in the circumstances to obtain evidence of rehabilitation in this short period of time. Moreover, the Position Mr AW held at Data#3 was a senior role positioned to strong candidates who are required to demonstrate the requisite level of professionalism and integrity. 67. On the other hand, Mr AW’s case has some very persuasive mitigating factors. Although it was a serious offence, Mr AW’s culpability was at a lower level. Mr AW does not have a pattern of criminal behaviour. The Sentencing Judge found that the offence was out of character, a massive error of judgment and there is no significant risk of re-offending. The Judge also found that his involvement in the offence was not for financial gain. Mr AW’s clients and colleagues have attested to his technical skill as well as his honesty, reliability and trustworthiness in a work context, being character references which were accepted by the Court in sentencing. Mr AW has served his sentence of home detention and endeavoured to move forward with his life and career. 68. On balance, and with the above factors in mind, I am not persuaded that there is a sufficiently tight or close correlation between the inherent requirements of the Position and the exclusion of Mr AW. I am not persuaded that Mr AW was unable to perform the inherent requirements of the Position.”