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June 2019

Finding of discrimination based on criminal record

Finding of discrimination based on criminal record

Ms Jessica Smith v Redflex Traffic Systems Pty Ltd (2018)

The Case

Ms Smith applied for a position as a Mobile Speed Camera Operator (MSCO) with Redflex Traffic Systems Pty Ltd (Redflex) in NSW. Redflex made an offer of employment to Ms Smith, which was conditional on her undertaking a police record check. Ms Smith revealed to Redflex that she had convictions for assault and drug possession dating back to when she was 19 and 22 years old. After receiving confirmation of this in the criminal record check, Redflex withdrew the offer of employment.

Ms Smith lodged a complaint with the Australian Human Rights Commission (AHRC), alleging Redflex had discriminated against her on the basis of her criminal record. Pursuant to the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act), the AHRC is able to investigate complaints of discrimination on the basis of a criminal record.

Redflex denied the claim, indicating that as a result of the convictions, Ms Smith could not perform the inherent requirements of an MSCO. Reflex claimed those inherent requirements included the need to be trustworthy, of good character, and calm and professional in sometimes hostile circumstances.

The Verdict

The AHRC:

  • found that Redflex had unlawfully discriminated against Ms Smith on the basis of her criminal record;
  • indicated that the commission of those crimes, many years ago, did not mean Ms Smith could not perform the inherent requirements of the role;
  • was critical of Redflex not providing Ms Smith an opportunity to explain the circumstances of the criminal convictions; and
  • recommended that Redflex pay Ms Smith compensation, update its discrimination policies and provide training to staff on those policies.

As part of accepting all of the AHRC’s recommendations, Redflex paid Ms Smith $2,500 in compensation.

The Lessons

In Tasmania, the ACT and the NT, job applicants and employees can bring a claim for discrimination on the basis of a criminal record under the respective state/territory anti-discrimination legislation. In all other states, employees must rely on a complaint to the AHRC under the AHRC Act.

The AHRC can only provide recommendations for action but when adverse findings are made, can publish an employer’s name on its website and those employers can also be named in Parliament.

If you wish to exclude a job applicant on the basis of a criminal record:

  • ensure there is a close connection between the person’s ability to perform the inherent requirements of the position and the particular criminal record (the fact the employee has a criminal record won’t be sufficient by itself); and
  • allow the person an opportunity to explain the convictions before undertaking the above assessment.
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