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Sacking of senior employee with drug conviction was discriminatory

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Discrimination on the basis of criminal record is prohibited by the AustralianHuman Rights Commission Regulation 1989 (Cth).

However, an employer can make a distinction against someone with a criminal record if the person’s particular criminal record means that they are unable to fulfil the inherent requirements of the job as such conduct does not constitute unlawful discrimination: see s 3(1)(c) of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act).

In AW v Data#3 Limited [2016] AusHRC 105 the Australian Human Rights Commission (AHRC) found that an employer, Data#3 Limited (Data#3) discriminated against an employee, Mr AW when it terminated Mr AW’s employment.

Approximately one week after Mr AW commenced employment with Data#3 as a ‘Solution Specialist – Microsoft’, Data #3 became aware that Mr AW had been convicted of a serious crime. Mr AW subsequently disclosed that he had a criminal record in New Zealand for six counts of selling drugs. Data#3 relied on the six month probationary period in Mr AW’s employment agreement to dismiss him due to his criminal conviction.

Mr AW subsequently lodged a discrimination application in the AHRC.

In response to Mr AW’s application, Data#3 submitted that it was legally permissible to terminate Mr AW’s employment for any reason during the probationary period and the decision to terminate Mr AW’s employment was not attributable to his criminal record, but rather to his inability to perform the following inherent requirements of the position:

  • Data#3’s core values, including ‘honesty & integrity’ and ‘respect & trust’ and the ‘customer facing nature of the role’; and
  • certain government agencies that Data#3 worked for required security clearances as part of project specific requirements and a number of non-government clients also required police checks for employees undertaking work for them.

The findings

In deciding whether there had been discrimination within the terms of s 31(b) of the AHRC Act, the AHRC found:

  • Data3#’s decision to terminate Mr AW’s employment constituted an ‘exclusion’ on the basis of his criminal record.
  • The decision to terminate Mr AW’s employment constituted an impairment of his equality of opportunity and treatment in employment. Had Mr AW’s employment not been terminated he would have continued working in the position and earned wages and potentially a bonus payment.
  • The customer liaison aspects of Mr AW’s position and the need to have integrity, trust and credibility, were inherent requirements of his position. However, the ability to obtain security clearances or passing police checks were not inherent requirements of Mr AW’s position.

Because there is no power under the AHRC Act for damages to be awarded for discrimination on the basis of criminal history, AHRC made recommendations in relation to an award of monetary compensation (being $5,000 for general damages and $71,639 for economic loss) as well as other recommendations.

Implications

Because each job is different and there is no firm test in determining the inherent requirements of a particular job and whether a person can meet these requirements because of their criminal record, each case needs to be considered on their own facts.

This decision however highlights that if an employer is to terminate an employee’s employment because of their criminal history, in order for it to not offend the AHRC Act the employer must be able to show a sufficiently tight correlation between the inherent requirements of the position and an individual’s particular criminal record.

Finally, Data#3 also submitted in defence of its position that Mr AW’s failure to disclose his criminal record during the interview process amounted to dishonest conduct. Quite separate to any defence to a discrimination complaint, if questions have been asked in a recruitment process about an employee’s integrity and trustworthiness, and the employee answers those questions in a dishonest way, that dishonesty, later discovered, may provide justification for the dismissal of the employee. See: Gordon & Gotch (Australasia) Limited v Cox (1923) 31 CLR 370.