Sacked in his second week over a drug conviction: it was discrimination

What happened

In December 2013 an IT specialist, called Mr AW in the report at his request, accepted a senior role with Data#3, a technology company. The job was "Solution Specialist – Microsoft", with a package of about $185,000 a year. He started on 6 January 2014.

During his interviews he asked whether the job needed a criminal record check or a security clearance. He said he was assured each time that it did not. Data#3's account was that one manager said clearances were not, as far as he knew, required for the role, while another said some government customers might require one.

Mr AW did have a record. In 2011 a New Zealand court convicted him on six counts of selling the drug MDMA, and he was sentenced to a year of home detention. On 14 January 2014, about a week after he started, Data#3 learned of the conviction. It says a representative of one of its major suppliers had contacted it about media reports of his record. Three days later Data#3 ended his employment under the probation clause in his contract.

The complaint

After less than two weeks, Mr AW was well short of the minimum period of employment for an unfair dismissal claim. He complained to the Australian Human Rights Commission on 1 May 2014, saying he had been dismissed because of his criminal record.

Criminal record is not covered by the main federal discrimination Acts, or by the list of protected attributes in the Fair Work Act. But the Australian Human Rights Commission Act 1986 (Cth) lets the Commission inquire into discrimination in employment, and regulations under that Act declare criminal record to be a ground. Treatment based on the inherent requirements of a particular job is not discrimination.

Data#3 argued that it could end his employment during probation for any reason, that a recent and serious conviction did not fit its ethical standards, and that its real reason was his failure to disclose the conviction when he was recruited.

What the Commission decided

The Commission's President, Gillian Triggs, found that Mr AW had been discriminated against on the basis of his criminal record. She accepted that his failure to disclose the conviction was also one of Data#3's reasons. But the record did not have to be the only reason. Data#3's own submissions showed that its concerns about his suitability began when it learned of the conviction.

Why: the legal test

The President asked four questions. Was there an act? Did it exclude Mr AW on the basis of his criminal record? Did that impair his equality of opportunity in employment? And was it based on the inherent requirements of the job? An inherent requirement is something essential to the particular job, not something peripheral.

She accepted that dealing with customers, and integrity, trust and credibility, were inherent requirements of the role. She did not accept that a security clearance or a police check was. Clearances might arise on some government projects, many of Data#3's solution specialists did not hold one, and neither the contract nor the position description mentioned one.

Following the Full Federal Court in Commonwealth v Bradley, the exception applies only where there is a "tight" or "close" connection between the job's requirements and the decision. The President weighed the record. The offence was serious and recent. But the sentencing judge had found his culpability was at a lower level and the offending was out of character, he had no pattern of offending, and he had references to his honesty at work. She called it "a finely balanced case", but was not persuaded that he could not perform the inherent requirements of the job.

Compensation: a recommendation, not an order

Mr AW asked for $135,362.50. The President recommended $5,000 for hurt, humiliation and distress, and an amount for lost earnings, which she calculated at $71,639. That was the difference between the $307,547 he would have earned at Data#3 and the $235,908 he earned in other jobs. His 117 job applications in about six months were, she found, a reasonable effort. She did not recommend anything for his legal costs, or for damage to his reputation, for which there was no evidence.

She also recommended that Data#3 adopt a policy on criminal record discrimination and train its staff. Data#3 agreed to the policy and training, but declined to pay any compensation. In complaints of this kind, if conciliation fails, the Commission can only inquire and report to the Attorney-General; its recommendations cannot be enforced in a court.

What this means for you

If you have a criminal record, an employer may still be entitled to take it into account, but only where it genuinely bears on what your particular job requires. A broad statement about values, or a clearance that only some staff ever need, may not be enough. If you were dismissed or refused a job because of a conviction, a complaint to the Australian Human Rights Commission is one option, but the result is a recommendation. In Western Australia, the Spent Convictions Act 1988 (WA) s 18 makes it unlawful for an employer to dismiss someone because of a spent conviction. If you were dismissed after the minimum employment period, an unfair dismissal claim may also be possible, and it must be lodged within 21 days.

If you are an employer, decide in advance whether a check or clearance is really needed, say so in writing before the job is offered, and assess any record against the job rather than reacting to it.