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Sacking of convicted criminal was discriminatory: says AHRC

December 1, 2016

criminal-record

The Australian Human Rights Commission (the “AHRC”) has recommended that an employee be compensated for lost earnings as well as $5,000 for hurt, humiliation and distress after he was sacked because of his “serious criminal record”.

The Microsoft Solution Specialist was terminated from his $185k per annum position just two weeks after commencing with an ASX listed ICT cloud solutions provider. The Company had received a tip off from a major supplier that the individual had previously been convicted of drug supply offences in October 2011 and had served 12 months’ home detention in New Zealand.

The individual subsequently lodged a complaint with the AHRC, arguing that he had specifically asked during the recruitment process whether he was required to pass a criminal record check and had been assured that there was no such condition of employment. He had also provided numerous references who had attested to his good work ethic and said that his prior criminal conviction did not prevent him from being able to perform the inherent requirements of the job.

On the other hand, the Company sought to rely upon the role’s high remuneration level as a basis for saying that candidates are required to “demonstrate professionalism and integrity” in the performance of their duties. The Company also sought to rely on the fact that the employee was within the probationary period and as such it was entitled to terminate his employment for any reason upon payment of 1 weeks’ notice.

The AHRC findings:

The President of the AHRC, Gillian Triggs, found that the company’s decision to terminate the individual constituted an exclusion made on the basis of criminal record.

In addition to compensation, the President recommended that the Company develop workplace policies to prevent this type of discrimination from occurring and conduct training for its human resources and management staff to assist staff members to fairly assess whether someone’s criminal conviction impacts on their ability to perform the inherent requirements of the role.

What does this mean for you?

Only Tasmania and the Northern Territory have laws which specifically prohibit discrimination on the basis of a person’s criminal record. Legislation in Western Australia and the Australian Capital Territory make it unlawful to discriminate on the basis of someone’s ‘spent’ criminal conviction.

However, the AHRC has the power to investigate a complaint of discrimination on the basis of a person’s criminal record in any Australia State or Territory. While the AHRC cannot make an order for compensation, it is required to prepare a report with recommendations and table this report in Parliament.

For more information on the recommendations and what this means for you, clients should contact the HR Assured team. If you’d like more information about the benefits of becoming an HR Assured client contact us today for an informal chat.