A lesson on employees and criminal records

In a report late last year the Australian Human Rights Commission (AHRC) concluded that an IT company, Data#3, discriminated against an employee when it dismissed him on the basis of his criminal record (which related to dealing drugs).¹

While the AHRC can only make non-binding recommendations, its report may be relied upon by employees in future unfair dismissal or equal opportunity claims to demonstrate that a dismissal was unfair or that discrimination occurred.

In the matter of AW v Data#3 Limited, the employee argued that he was discriminated against by being dismissed as a result of his criminal record.

Data#3 denied this and argued that its ultimate decision to dismiss the employee was based on his lack of candour, good faith and honesty in failing to disclose his criminal history. Data#3 also said that obtaining a security clearance and passing a police check was an inherent requirement of the employee’s position.

The AHRC rejected this argument and said that there was nothing in Data#3’s written documents (such as a position description or employment contract) that showed that getting a security clearance or passing a police check was an inherent requirement of the position. Accordingly, the AHRC found that Data#3’s real reason for dismissal was the employee’s criminal record and that this was discriminatory. The AHRC recommended Data#3 pay the employee approximately $76,000 in compensation.

It is important to note that discriminating against prospective employees because they have a criminal record is not prohibited by federal anti-discrimination laws. However, an employee could use a similar argument in an unfair dismissal claim to say that their dismissal was harsh, unjust or unreasonable.

Many employers will view a clean criminal record as an inherent requirement of a job. To reduce the risk of claims alleging discrimination, we recommend that the requirement to pass a police check and to otherwise maintain a clean record, is clearly communicated to job applicants and existing employees in the employer’s written contracts and policies.

¹AW v Data#3 Limited [2016] AusHRC 105