A Dark Night, A Barking Dog and A Bureaucrat: Discrimination Against Persons with a Criminal Record

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Mr AG, an IT worker with a security clearance more Inspector Gadget than James Bond, was engaged by a labour hire company to work at the Department of Foreign Affairs and Trade (DFAT).

Mr AG had a non-conviction order recorded against him for endangering his neighbour’s dog by throwing poison Ratsack and a paint tin over a suburban fence. In sentencing Mr AG, the Magistrate noted that the lenient sentence was, in part, due to MR AG making a full admission to the offences and that the offences were “at the lower end of objective seriousness”.

But, it wasn’t over for Mr AG.

The media smelt blood. The story of a dark night, a barking dog and a bureaucrat was just too tempting for commercial news outlets and, a major newspaper published an article about the incident.

It got worse; DFAT read about the story in the newspaper and, in haste and before investigating the matter, encouraged the labour hire company (or employing entity) to terminate Mr AG’s employment with reference to or, as a result of, his criminal conduct.

The following issues should have been considered before terminating Mr AG’s employment: whether the criminal conduct alleged would interfere with Mr AG fulfilling the inherent requirements of his role; the relatively “lower end of objective seriousness” of the offences; and, Mr AG’s honesty in providing full admissions.

It was found by the Australian Human Rights Commission (AHRC) that DFAT’s decision to encourage termination of Mr AG’s employment was discriminatory within the meaning of sections 3 and 31(b) of the Australian Human Rights Commission Act and it was recommended that it pay Mr AG more than $120,000 in compensation. DFAT has rejected the AHRC’s recommendation.

In summary:

• criminal records are a ground of discrimination for the purposes of the AHRC Act;
• employers should not terminate an employee in haste; employers should investigate;
• an employer may not be able to terminate an employee’s employment if the criminal conviction or criminal activity does not directly or indirectly relate to the inherent requirements of the employee’s role;

[AG v Commonwealth (Department of Foreign Afffairs and Trade) and Finite Group APAC Pty Limited [2018] AusHRC 123]

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