Is firing an employee with a criminal record discrimination?

Criminal records in employment can be tricky. On the one hand, people deserve second chances and shouldn’t be shackled by mistakes of the past – yet an undisclosed criminal record can cause all sorts of headaches for employers and their reputations.

For some Australian employers, criminal records of any kind are non-negotiable, but for others, depending on the circumstance and the relevancy of the crime, it is not the be-all and end-all.

Criminal convictions and employment, however, can be complex, some of that being from the stigma that surrounds having a criminal record. Some employees, out of fear of being turned down for a job opportunity, will attempt to keep their criminal record a secret, which in the long run can be negative for both the employee and employer.

Sean Melbourne, director of Source Legal and Workplace, shared some insight on how some of these situations play out and how employers can navigate the laws around employees having a criminal record.

“[Criminal record] laws are trying to strike a balance between the need to allow people to start over and not be held back forever by a criminal conviction, which getting a job can be a big part of, and the need to allow employers to only have appropriate people in their workplace and in particular roles,” Melbourne said.

“At a federal level, it’s considered discrimination if you don’t hire someone, or terminate someone’s employment, because of an irreverent criminal record. This will also be the case if you treat someone unequally in some other way, such as by not promoting them.”

“The starting point is that it will be relevant if it makes the person unsuitable based on the inherent requirements of the job. For instance, a criminal record would be relevant to a job in childcare if it prevents the person from passing a working with children check.”

According to Melbourne, the federal legislation that works to protect workers with a criminal record from discrimination fails to make it “unlawful to discriminate based on an irrelevant criminal record”. Instead, it enables employees to be able to make a complaint to the Australian Human Rights Commission (AHRC), which can then make non-binding recommendations to the employer.

“One thing the AHRC can do is make recommendations, including recommending the payment of compensation. But recommendations aren’t enforceable. This happened a few years ago after Suncorp withdrew an offer of employment when it found out the person had been convicted of possessing child pornography,” Melbourne said.

“The AHRC found that Suncorp had discriminated against the person on the basis of his criminal record and, among other things, recommended payment of compensation.”

“Suncorp said ‘thanks, but no thanks’ and declined to pay compensation because it disagreed with the AHRC’s findings. It did, however, put measures in place to prevent discrimination from occurring in the future,” said Melbourne.

When it comes to hiring a worker who has a known criminal record, there are levels to it, as Melbourne explained.

“At one end, there are people convicted of serious crimes like murder, or the child pornography conviction that Suncorp dealt with. You can understand why employers would not want to allow these people into their workplace,” Melbourne said.

“Then there are lesser convictions like driving offences that, unless you’re driving for a living, shouldn’t impact people’s ability to get a job.”

“Then, in between are the shades of grey, such as theft or dishonesty offences. You would want these people to be able to work, but if honesty and integrity is an important part of a particular role, you could understand why it might not be appropriate to employ them. That’s where the relevance criteria come in.”

If employers, however, discover that a worker has a criminal record that they failed to disclose, it once again goes back to the relevancy.

“If you want to terminate someone’s employment because you’ve discovered they have a criminal record, you’ll need to take unfair dismissal into account. If it applies, it’s likely to be unfair to dismiss them if their criminal record isn’t relevant to their role,” Melbourne said.