Australia: Dismissal for criminal convictions – The importance of proper identification of inherent requirements and considering mitigating factors

A recent report by the Australian Human Rights Commission (AHRC) reinforces the risks in dismissing an employee on the basis of past criminal convictions. Employers should exercise caution in dismissing an employee on the basis of their criminal record. It cannot be assumed that antisocial criminal conduct will be regarded as depriving an employee of the ability to perform the inherent requirements of a role, even where the job necessitates close contact with customers. The inherent requirements of a role must be properly identified and an assessment made against the circumstances surrounding the offending and sentencing, including any mitigating factors that may cause a tribunal to find the employee capable of performing the role.

The Report

In AW v Data#3 [2016] AusHRC 105, the AHRC found that technology company Data#3 had discriminated against an employee known as Mr AW by dismissing him on the basis of his criminal record. Shortly after he commenced work as a ‘Solution Specialist’, Mr AW’s employer learned of his conviction in New Zealand for selling the drug MDMA and terminated his employment.

In reaching this conclusion, the AHRC was required to consider, amongst other things:

1. Whether Data#3 had terminated Mr AW’s employment ‘on the basis’ of his criminal record. The Commission said that ‘on the basis of’ should be interpreted in the broader sense, to mean ‘by reference to’. Applying this, the AHRC said that the decision to terminate Mr AW’s employment did constitute discrimination on the basis of criminal record. Further, it was not necessary for the AHRC to find that criminal record was the sole reason for the dismissal (it was accepted 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’.)
2. Whether the decision to terminate Mr AW’s employment was based on the inherent requirements of the role. In relation to the inherent requirements Data#3 had assessed Mr AW as not being able to perform, the AHRC said:
   1. The customer liaison aspects of Mr AW’s position were inherent requirements.
   2. Integrity, trust and credibility were inherent requirements.
   3. Obtaining a security clearance or passing a police check was NOT an inherent requirement. The AHRC did not accept that this requirement was essential, because many other Solution Specialists did not have such a clearance; Data#3 had failed to specify what conduct would result in an adverse security clearance; and neither the contract of employment nor position description stipulated the requirement.
3. Whether there was a tight or close connection between the inherent requirements of the position and the termination of Mr AW’s employment. Here, the AHRC took into account:
   1. The nature of Mr AW’s criminal record: he was convicted of serious drug offences, but his involvement in the drug operation was at the lower end and the sentence imposed non-custodial (12 months home detention);
   2. The circumstances surrounding the offending: in took place in Mr AW’s personal life and involved an exercise of poor judgement; Mr AW was also ill;
   3. Character references and professional reputation at the time of conviction: Mr AW was found by the Sentencing Judge to be ‘honest, reliable and trustworthy in his professional capacity’; and
   4. The time since the offence (relatively recent) and the fact that the Sentencing Judge found there was no significant risk of re-offending.

The AHRC said the case was ‘finely balanced’, but ultimately found that there was not a ‘sufficiently tight or close correlation between the inherent requirements of the Position’ and the termination of Mr AW’s employment. The AHRC was not persuaded that Mr AW was unable to perform the inherent requirements of the role.

The AHRC recommended Data#3:

• develop workplace policies in relation to the prevention of discrimination on the basis of criminal record.
• conduct training to assist staff ‘to assess fairly whether an individual with a criminal record can perform the inherent requirements of a particular job’.
• pay Mr AW an amount in compensation for loss of earnings, caused by the termination of his employment.
• pay Mr AW $5,000 compensation for hurt, humiliation and distress as a result of being discriminated against.

Data#3 accepted the first two recommendations. It declined to pay Mr AW any compensation.

What does this mean?

• In most Australian jurisdictions, criminal record discrimination can only be challenged by making a complaint to the AHRC (Note that spent convictions are dealt with separately). The AHRC then conducts an inquiry and issues a report, with findings and recommendations. The recommendations may be accepted by the parties or not (as illustrated in this case). However, the report is made publically available on the AHRC website.
• It is important for employers to articulate whether passing a security clearance or police check is a requirement of a particular role. This should be done during recruitment and pre-employment processes and spelt out in employment contracts.
• A negative security clearance does not always mean ‘no job’ or termination. An assessment must be made against the inherent requirements of the particular role and an opportunity provided to the prospective employee/employee to provide further information about the offence.

This article was written by Kirsty Faichen, Partner, and Asher Lindsay, Senior Associate, Brisbane.