Criminal Records Checks and the use of adverse reports to end employment
The Australian Human Rights Commission (“AHRC”) Report into its investigation of a complaint against an employer, Data#3, has now been made public. The complaint dealt with an allegation that the complainant was dismissed due to an adverse criminal record (he had served one year’s home detention following conviction by a New Zealand court for six counts of selling MDMA in 2011.
The facts, were as follows:
a) In early December 2013, the complainant was interviewed for an IT position described as ‘Solution Specialist – Microsoft’ (the Position), with a remuneration package of about $185,000 per annum.
b) On or about 12 December 2013, a job offer was made and accepted.
c) On 16 December 2013, the complainant was sent a letter of offer and new starter pack, including the Employment Agreement (that included a requirement to perform all duties of the role), Code of Conduct Guidelines and Declaration, and the Position Description. The new starter pack did not include any documents in relation to a security check or a criminal record check to be completed.
d) On 6 January 2014, the complaint commenced work.
e) On 14 January 2014, Data#3 discovered that the complainant had a criminal record. through a representative of a supplier, who had contacted Data#3. He had found two media reports which indicated that the complaint had a ‘serious criminal record’.
f) On 16 January 2014, the complaint’s manager scheduled a meeting with the complaint. The precise details of this meeting are in dispute. However, it was agreed that at this meeting the complaint either disclosed that he had a criminal conviction in New Zealand for selling MDMA (Data#3’s position), or confirmed that he had this conviction when it was put to him (“the complaint’s position”).
g) On 17 January 2014, the complaint had another meeting with his manager. He was told him that his employment would be terminated due to his criminal conviction.
h) Subsequently, the complaint received a letter from his manager, dated 17 January 2014. It stated:
It has been decided not to continue your employment under ‘Clause 2. Period of employment’. We refer below, to the extract from your Employment Agreement:
2.5 The first six months of your employment is a probation period. During the probation period, we will endeavor to provide you with the necessary guidance, feedback and assistance to succeed in your position.
2.6 At any time during the probation period you or we may terminate your employment by giving one week’s notice. If we terminate your employment, we may elect to pay you in lieu of notice.
Your last day of employment is the 17th of January 2014. … Data#3 is only required to give you one week of notice, however in this instance we have decided to pay you up to and including 3rd February 2014 to provide you with a period to find alternative employment.
i) In connection with his complaint, the complainant submitted that:
During the process of interviewing for the Position with Data#3, I specifically asked on at least two occasions whether it was a condition of my employment at Data#3 that I pass a criminal record check or needed to obtain a security clearance. I was assured on each occasion that there was no such condition to my employment.
He remained able to perform all the inherent requirements of the Position
j) Data#3 submitted that, as was evidenced by the role’s remuneration level of $185,000 and Position Description, the role is positioned to ‘strong candidates who, relevantly, are required to demonstrate professionalism and integrity in their interactions with Data#3 senior management, Data#3’s customer base of large government and corporate customers and Data#3’s vendor partners’.
Under the contract, it was entitled to terminate the employment on one week’s notice and did so after reviewing the complainant’s suitability for the role and concerns about his ability to perform the inherent requirements of that role. The complainant’s recent and serious criminal actions were inconsistent with Data#3 Limited’s core values and the requirement that both it and its employees (particularly senior employees) must have and exhibit the highest ethical standards. In those circumstances, the complainant’s continued employment was untenable. Data#3 also submitted that the complainant was verbally notified during the interview process of the possibility that a security clearance may be required for certain Data#3 work.
k) The complainant made further submissions on the nature of his criminal record, referring to the Sentencing Judge’s assessment that ‘there is no significant risk of [the complainant] re-offending’ and that the ‘involvement in drugs was out of character [and] a massive error of judgment’. The Commission however also considered that that the criminal conduct occurred only two years before he applied for the position at Data#3.
The Report’s Findings
The AHRC found that the termination was a result of the complainant’s criminal history and that he was still able to perform the inherent requirements of the position. Therefore, the AHRC made four Recommendations, that Data#3 should:
- develop workplace policies in relation to the prevention of discrimination in employment on the basis of criminal record;
- conduct training to assist staff to fairly assess whether a job applicant with a criminal record can perform the inherent requirements of a particular job;
- pay the complainant $5,000 in compensation for hurt, humiliation and distress as a result of being discriminated against; and
- pay the complainant $71,639 in compensation for loss of earnings, caused by the termination of his employment.
Although the AHRC has the power to make a report to the Attorney-General outlining any recommendations that are made, the Recommendations in it are non-binding on participants.
As such, Data#3 informed the AHRC that while they would implement Recommendations 1 and 2 to ensure best practice in the future, they would not pay any compensation to the Complainant. This was because the employee was within the probation period and they were fully justified in terminating him with one week’s notice.
Message for Employers
While the AHRC can only make non-binding Recommendations, it is in the interests of employers to ensure best practices are implemented when hiring employees.
It is a good idea to include a general clause in employment contracts that state that new employees may require a criminal background check and ensure that up-to-date policies are in place.
The AHRC Report is also significant in that it states that terminating employment on the grounds of past criminal conduct is discriminatory. This means that should you have an employee who is not in a probationary period with an undisclosed criminal history, they cannot be validly terminated on that ground alone.
Therefore, any employer wanting to dismiss an employee with an undisclosed criminal background should seek legal advice on how to proceed.