Many employers seek to enforce a requirement that its employees, or prospective employees, maintain a “satisfactory” criminal record. However, recently an employer’s ability to enforce such a requirement by terminating employment, or even withdrawing offer of employment, has been put into question by the Australian Human Rights Commission and the Fair Work Commission.

Earlier this year the AHRC found that Redflex Traffic Systems Pty Ltd (Redfelx) had discriminated against a prospective employee by withdrawing an offer of employment following a criminal record check and as a result paid the individual $2,500 in compensation. In September 2016, the prospective employee applied for a mobile speed camera position with Redlfex which was advertised on Seek. Redflex interviewed the prospective employee and offered her the position subject to a criminal record check and medical assessment. The individual notified Redflex that the criminal record check would likely indicate disclosable offences and requested that it be completed prior to the medical assessment. The criminal record check identified that the prospective employee was convicted of assault occasioning bodily harm in November 2004 (at age 19) and possession of marijuana in May 2007 (at age 22). In October, Redflex informed the prospective employee that the offer was withdrawn on the basis that certain regulatory bodies were strict about issuing licences to people with a criminal history.

Redflex argued before the AHRC that it withdrew the prospective employee’s offer of employment because of her unsatisfactory criminal record check and that it was not discrimination because she was unable to fulfil the inherent requirements of the role.

President Croucher of the AHRC accepted that a general standard of trustworthiness and good conduct was an inherent requirement, as well as the ability to respond calmly and professionally in hostile and potentially volatile situations. However, President Croucher found that the convictions did not make the candidate untrustworthy in 2016 and that without contacting the prospective employee and ascertaining the circumstances surrounding the offence and whether there had been rehabilitation in the 12 years since the conviction that Reflex “did not have the information necessary to undertake a sufficiently comprehensive and individual assessment” to determine whether the prospective employee could fulfil the inherent requirements of the role.

In an earlier matter before the FWC, Superior Food Group Pty Ltd (Superior) was found to have unfairly dismissed an employee after terminating his employment based on his criminal record.  The employee was employed as a store worker by Superior on 4 April 2017. Superior obtained a police check on 19 April 2017, however failed to act on the police check until it conducted a staff audit months later, terminating the employee on 11 July 2018 on the basis that the police check showed a prior conviction.

The employee filed an unfair dismissal claim, arguing that his dismissal was unfair because Superior had knowledge of his conviction for more than 1 year before his employment was terminated and that it was not a requirement of his role that he have a clean criminal record. On the other hand, Superior argued that that the dismissal was not unfair because it was a condition of the employee’s employment and the employee had been dishonest on disclosing the full extent of his convictions.

Whilst Commissioner McKinnon did not accept the employees argument that he had failed to disclose his most serious offences because he ran out of room on the form, but  Commissioner McKinnon held that Superior could not rely upon the employee’s failure to disclose his prior convictions given that he had consented to a police check, that Superior had obtained the police check but failed to act on the information made available to it in 2017. Commissioner McKinnon also held that pre-employment checks and contractual documents did not specify Superior’s expectations about whether employees could have a criminal record, and further that Superior could not impose a condition that it would not employ any person with a criminal history without any relevant connection to the inherent requirement of the role.

Employers should carefully consider current policies and requirements they may have for employees to have a “clear” criminal record check and seek advice before terminating an employee or withdrawing an offer of employment.

For advice or further information, please contact:

Jim Rutherford
Principal
T + 03 5226 8579
E: jrutherford@ha.legal

or

Sonia McCabe
Senior Associate
T 03 5226 8558
E: smccabe@ha.legal

or 

Sophie Ware
Associate
T 03 5226 8577
E: sware@ha.legal