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
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,
complying with the organisation's drug and alcohol
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
Mr CG v State of New South Wales Report into discrimination in
employment on the basis of criminal record  Aus HRC 48.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Treasurer Scott Morrison recently announced changes to a number of 2016 Budget superannuation contribution measures.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).