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Discrimination on the basis of a criminal record

Employers are in a difficult situation when an otherwise suitable job candidate applies for a position but after pre employment screening, a criminal record surfaces and the red flag is raised. On the one hand, former offenders (just like everyone else) should be afforded equal opportunity in finding employment. Having said that, employers want to be confident that the people they hire are honest and reliable.

The number of complaints to the AHRC from people alleging employer discrimination on the basis of criminal record has skyrocketed. This indicates that further guidance is needed in this area. Importantly, employers must remember that requesting a criminal record check is only necessary if a criminal record may impact the person’s ability to perform the inherent requirements of the role.

In a recent case heard by the AHRC[1], a Data #3 employee claimed that the company discriminated against him when he was dismissed because of a ‘serious criminal record’. The employee claimed that he asked on two occasions during the interview process

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Employers generally want to ensure that a potential employee is honest, reliable and trustworthy. Conducting a police check can be a good indication of whether or not a job candidate possesses these qualities; however this may not always be reasonable or appropriate.

What needs to be considered when conducting criminal history police checks?

The first issue to consider is why the police check is required. The employer should ensure that the information is relevant and necessary, and that it will assist them to make a decision about whether the candidate is able to perform the role for which they are being considered and should be offered the job.

Secondly, the employer should take privacy considerations into account. If a criminal history check is to be conducted, the applicant should be informed from the outset about the police check and the timing of when this will occur. Employers also need to ensure that the information collected from the police check is only seen by the appropriate person(s), and that this information

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A recent NSW Supreme Court case[1] considered the summary dismissal of a senior ANZ Bank employee. The employee was terminated for serious misconduct and then sought to sue ANZ for breach of his contract claiming over $9 million in damages.

The alleged misconduct involved a significant leak of information to a Financial Review journalist. The leak involved an internal ANZ email which was illegitimately altered and forwarded on anonymously to a journalist. The altered version claimed that there would be no more lending and that ANZ was ‘closed for business’. The journalist in turn contacted ANZ who conducted an investigation. The investigation concluded that Bartlett was responsible and he was subsequently terminated.

The court decision largely turned on the words of the executive’s employment contract. The contract provided that the executive could be summarily terminated if ‘in the opinion of ANZ’ he engaged in serious misconduct. The executive argued that ANZ needed to prove he was actually guilty of the alleged conduct or that there should be an implied

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We regularly provide advice around redundancy and know from practice that it can be an area fraught with pitfalls. To meet the test for genuine redundancy under the Fair Work Act the redundancy process must include the employer exploring, with the employee, any available redeployment options. Related to this concept is that of ‘alternative acceptable employment’ which may affect the redundancy pay.

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With effect from 1 January 2010, the redundancy provisions in the Fair Work Act, 2009 (Cth) came into operation the result of employers and employees in the national workplace system being covered by the National Employment Standards (NES). The new redundancy provisions bestow a positive obligation on employers to fully explore opportunities within an employer’s wider corporate structure to redeploy. For employers, proactively pursuing and proposing alternate employment opportunities before redundancy termination, will minimise the risk of unfair dismissal or adverse action litigation being brought by employees.

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In a ruling that serves as a warning to employers, the Federal Magistrates Court rejected an employer's contention that pre-employment negotiations were not binding.

In the case of McRae v Watson Wyatt Australia Pty Ltd, Federal Magistrate Raphael found that a redundancy provision that was discussed in pre-employment negotiations formed part of the employee’s contract.

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