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On the record

6 Employment

6.1 Conditions of employment and discrimination on the basis of criminal record

The Commission accepts complaints of discrimination on the basis of criminal record from people who allege that they have been discriminated against in their conditions of employment. For example some people may feel discriminated against because they have been denied promotion or training on the basis of their criminal record. As with recruitment and termination decisions, an employer should only deny a person these benefits and conditions of employment if the criminal record is relevant to the inherent requirements of the job.

An employer should also ensure that the workplace is free from harassment for people with a criminal record. Ongoing harassment of an employee, by either an employer or other work colleagues, on the basis of criminal record, could constitute discrimination under the HREOC Act. It could also expose an employer to allegations of privacy breaches or of failure to ensure occupational health and safety in the workplace. An employer has a responsibility to treat all workers with respect and provide a safe workplace free from harassment.

A common complaint by people with a criminal record is that they are the first to be suspected when something has been stolen at the workplace. An employer should ensure that every person is questioned equally unless there is evidence to the contrary, without resorting to presumptions or stereotypes.

Example of Commission complaint: Harassment on the basis of criminal record

The complainant claimed that his employer insinuated that he was responsible for freight that had gone missing on a number of occasions. The complainant had a criminal record related to entering and stealing, and had gone to prison in 1996.

It has caused me a tremendous amount of stress and worry. I am left anxious, angry and confused about my future work prospects. I feel that I’ll never be accepted within the workplace and that my efforts were not recognised or rewarded. It has made me feel alienated, targeted and different. It’s made me just want to give up working ever again to avoid the stress, worry, humiliation that I’ve endured. It’s also placed a strain on my home life (complainant’s statement on the Commission’s complaints form).

Outcome : The matter was conciliated. The employer offered the complainant a redundancy package and the complainant withdrew the complaint.

Top6.2 Requesting criminal record information from current employees

In general, there is rarely a need for employers to ask current employees for their criminal record details. However, changes in the law or the workplace may have created a new organisational or industry-wide requirement to check the criminal records of some or all employees for relevant convictions. For example, there are new laws requiring background checks for employees working with children.

In these cases, an employer should only ask a current employee for information concerningtheir criminal record if it is aspecific question and that question and the criminal record are relevant to the job.

Refer to Section 4.2 which outlines the main principles and processes involved in determining the inherent requirements of a job.

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6.3 What happens if an employee failed to disclose their criminal record at the recruitment stage?

Sometimes a previously undisclosed conviction comes to light during the course of employment.

If the criminal record is relevant to the job , and an employee failed to disclose the criminal record at the recruitment stage when asked, an employer may have grounds for dismissing an employee.

However, an employer should think very carefully before taking this action.

The employer should consider:

  • the relevance of the disclosed conviction to the particular job
  • the reasons why the employee did not reveal the criminal record. Remember that there is no universal obligation for an applicant to voluntarily disclose a previous conviction
  • the employee’s work history with the employer
  • any obligations under unfair dismissal laws.

If the offence for which the conviction was received is relevant, the employer may still take some alternative action other than dismissal. The employer could choose to keep the employee but transfer them to another position, or reorganise their duties so that their criminal record is not relevant to the new position. Failure to consider these matters and possible options other than dismissal may lead to a claim of unfair dismissal.

If the criminal record is irrelevant to the job , an employer should not dismiss an employee on the basis of their criminal record. A dismissal in these circumstances could amount to discrimination under the HREOC Act and may lead to a complaint to the Commission.

Dishonesty in the course of recruitment can provide a ground for termination under unfair dismissal laws but has been held to be supportable only where either the criminal record or the fact of dishonesty is relevant to the position.43 The longer the employee’s service with the employer, and the more exemplary the conduct of the employee, the more likely it is that the dismissal will be found to be harsh, unjust or unreasonable by industrial courts.

Employer example

A large insurance company recently introduced a policy for the background checking, including criminal record checking, of job applicants for many positions within the organisation. It found that the criminal records of some current employees were revealed for the first time when they applied for new jobs within the organisation. In one case this led to the dismissal of an employee because the offences and the manner of not disclosing were relevant to the position. However, in many cases of external applicants applying for roles and disclosing criminal conviction, the candidate is still offered the role. For example, one candidate was discovered to have a shoplifting offence, but this was considered in conjunction with other factors, and determined to be irrelevant to the administrative position that had been applied for. It is also company practice to give a job applicant and current employee a chance to have an interview concerning their criminal record before a detrimental decision is made. An employee relations officer from the company told the Human Rights Commissioner in project consultations that:

One of the issues in relation to the introduction of this policy was a concern by managers that we would make knee-jerk decisions and that anyone that had even a minor conviction would be excluded from employment. Many of those fears have been allayed over the period of time that the policy has been in place because they have seen us make mature, appropriate decisions .

Note

43 See, for example, The Federated Miscellaneous Workers Union of Australia and Michell Leather [1992] AIRC Print K 1855 (Unreported, Commissioner Simmonds, 17 February 1992) 5; Richard Michael Parody and Australian Correctional Management Pty Ltd [2003] AIRC PR928052, (Unreported, Deputy President McCarthy, 21 February 2003), S. Selleck, p19, FEDFEA v Shell Refining Co (1989) 31 AILR 430 .

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