Employers who propose discriminating against applicants or employees because they allege they cannot perform the requirements of their role because of a criminal record should tread carefully.

An employer discriminated against an applicant because he had two criminal drink-driving offences in the previous eight years. The candidate, who had previously worked for the employer in a similar position, applied for a market analyst position, met the selection criteria, was chosen as the preferred candidate, but was not actually employed.

The employer maintained it did not engage in discrimination under the Australian Human Rights Commission Act, as the candidate could not perform the inherent requirements of the role, namely:

  • complying with the organisation's drug and alcohol policy
  • upholding its 'safety first' values, and
  • performing duties faithfully, diligently, carefully and honestly and with the exercise of skill and good judgement, (including that the employer could have trust and confidence in him taking personal responsibility for safe behaviour and complying with its drug and alcohol policy).

The Commissioner said it was an inherent requirement of the position that an employee be willing and able to take personal responsibility for their safe behaviour at work, comply with the organisation's drug and alcohol policy and for the employer to have trust and confidence in them. However, it was not the case the candidate's criminal record meant he couldn't comply with those requirements; the candidate's criminal record had no connection with the job (as they didn't occur during working hours and he was not driving as part of his work duties), he wouldn't be required to drive as part of his duties and he wouldn't be involved in any safety-critical activity.

The Commission's report was recently tabled in Federal Parliament and recommended the employer conduct anti-discrimination training for managers and the applicant be paid $7,500 for hurt and humiliation.

Sources:

Mr CG v State of New South Wales Report into discrimination in employment on the basis of criminal record [2012] Aus HRC 48.

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