Criminal record not a get out of jail free card for employers
A company has paid an unsuccessful job applicant $2,500 in compensation and revised its global recruitment and HR practices after it was found to have discriminated against the candidate on the basis of her criminal record.
Smith v Redflex Traffic Systems
In 2016, Jessica Smith applied for a mobile speed camera position with Redflex Traffic Systems Pty Ltd.
Redflex made Ms Smith an offer of employment which was conditional upon her undertaking a criminal record check and medical assessment. Ms Smith notified Redflex that the criminal record check was likely to return a record of “disclosable offences”.
Over the following weeks, Ms Smith made repeated unsuccessful attempts to contact Redflex about the status of her application. Two months later, Redflex notified Ms Smith that they had withdrawn their offer of employment because of her criminal record.
Ms Smith complained to the Australian Human Rights Commission (AHRC) alleging that Redflex had unlawfully discriminated against her on the basis of her criminal record.
Redflex responded that Ms Smith’s criminal record indicated she was unable to fulfil the inherent requirements of the position, which required a general standard of trustworthiness and good conduct. They argued that withdrawing the offer of employment did not, therefore, amount to unlawful discrimination.
The AHRC determined that there was not a sufficient connection between Ms Smith’s criminal record – which included assault occasioning actual bodily harm and marijuana possession, when she was 19 and 22 years old, respectively – and the inherent requirements of the role for which she applied.
Further, Redflex’s failure to contact Ms Smith and inquire about the circumstances of her offences, or any subsequent rehabilitation, meant that Redflex “did not have the information necessary to undertake a sufficiently comprehensive and individualised assessment” of Ms Smith’s suitability.
The AHRC determined on this basis that Redflex had unlawfully discriminated against Ms Smith.
- A criminal record per se is not a lawful reason to not make or retract an offer of employment, or to terminate the employment of an existing employee.
- Employers must carefully consider the inherent requirements of a position and make decisions about hiring and firing based only on relevant criminal information.
- Whether or not an applicant or employee’s criminal record is relevant should be assessed on a case-by-case basis against the tasks and qualities required by the position and the circumstances in which those tasks are to be carried out.
- Employers should also give job applicants and employees an opportunity to provide further information in relation to any criminal activities under consideration.
If you would like further information about your obligations in relation to the use of criminal record information, or if you require tailored and practical assistance developing and implementing criminal record policies and procedures, please contact our Employment, Safety and Migration team.
This article was written by Erin McLeod – Law Graduate, Employment, Safety and Migration.