In the recent case of Mr CG v State of NSW (Rail Corporation
NSW) , the NSW passenger train operator, RailCorp was
found to have discriminated against a job applicant based on his
What does this mean for employers?
A criminal record is a ground of discrimination under the
Federal Human Rights Commission Act 1986
(HRCA) and under certain State discrimination
laws. In addition, certain State laws prohibit discrimination on
the grounds of spent convictions.
Criminal records include convictions, charges, police
investigations, spent convictions and unrecorded convictions. Not
all of these will appear on official police records.
Although police checks may be conducted when recruiting
potential employees, results cannot form the basis of any decision
to reject an applicant unless there is a 'tight and close'
connection between the conviction and the inherent duties of the
An applicant's criminal record that results in an inability
to perform the inherent requirements of the position means that an
employer can rely on an exemption to discrimination. Inherent
requirements of a position are determined by reference to the
essential requirements of the position. For example drink driving
offences may be relevant for a delivery driver position.
The Australian Human Rights Commission (AHRC)
cannot make binding decisions that penalise employers for breach of
the HRCA although its report will be publicly tabled in Parliament.
However, breach of applicable State laws can result in claims for
compensation or reinstatement orders.
The case in brief
In 2009 Mr CG (CG) applied for a Market Analyst position with
RailCorp. CG had previously been employed by RailCorp in various
roles from 1999 -2007 including as a Market Analyst from September
2003 to April 2005.
CG was convicted of drink driving offences in 2001 and 2008
which occurred outside of work hours and away from his workplace.
During the recruitment process CG only declared the 2008
conviction. Although CG was the preferred candidate, he was
unsuccessful on the basis of his criminal record.
RailCorp argued that this was not discrimination as CG's
criminal record meant he was unable to perform the inherent duties
of the position including:
complying with RailCorp's Drug and Alcohol Policy;
upholding RailCorp's safety first values; and
performing duties faithfully, diligently, carefully, honestly
and with the exercise of skill and good judgement.
The AHRC rejected RailCorp's contention that CG's
criminal record meant he couldn't comply with the inherent
requirements of the job. The Commission found that:
CG's criminal offences had no connection with his
employment as a Market Analyst;
the convictions did not occur during work hours or whilst he
was performing his work duties; and
CG would not be required to drive as part of his work activity
or engage in any safety critical activity related to the provision
of rail transport services.
Therefore there was no 'tight and close' connection
between the convictions and the position's inherent
The AHRC acknowledged that having no criminal record may be an
inherent requirement of some positions with a limited class of
employers but RailCorp was not such an employer and a Market
Analyst was not such a position. The AHRC commented that failure to
disclose a conviction when one was required could form the basis
for refusing to employ a candidate or dismissing an employee on the
basis of dishonesty. However, in this case, there was no evidence
that RailCorp's decision not to offer CG employment was based
on his lack of candour, but rather on the basis of his criminal
The AHRC recommended that RailCorp pay CG $7,500 in compensation
for hurt, humiliation and distress. RailCorp maintained its view
that it had not discriminated against CG and declined to pay the
recommended compensation. RailCorp undertook to review its
recruitment policies to ensure that no person is excluded from
employment at RailCorp because of a criminal record.
Tips for employers
Criminal record checks require the consent of the
It is best practice to only require information about a
candidate's criminal record if there is a close connection
between the requirements of the position and the criminal
In some professions (including those involving working with
children), police checks may be mandatory. However, even in this
case a candidate with a criminal record should not be automatically
Employers will need to assess whether the particular record
results in an inability to perform the inherent duties of the
particular position before rejecting the candidate on this basis
alone. The candidate should also be given the opportunity to
explain the circumstances surrounding the criminal record.
Employers should ensure that any equal opportunity policy also
relates to recruitment decisions and should educate staff about
Employers should consider their obligations under privacy
legislation when retaining criminal history information on an
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.
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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.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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