Employment offer withdrawn following discovery of criminal record

The Canberra Institute of Technology (CIT) was recently accused of discrimination for withdrawing an applicant’s employment after discovery and then consideration of a criminal record.

In March 2023, an applicant sought a permanent position at the CIT, applying for the job and performing well in the interview. On 30 March 2023, the applicant received an offer of permanent employment with CIT, which was scheduled to commence on 26 April 2023.

However, after consideration of the applicant’s criminal record, which the applicant herself supplied, the CIT decided to withdraw her employment. The criminal record was supplied as an ordinary course of action when applying for a job in the public service.

The applicant then filed a complaint claiming that she was discriminated against based on her criminal record being irrelevant to her employment.

The ACT Civil and Administrative Tribunal was tasked with determining whether the CIT breached its obligations under the Discrimination Act and, therefore, was liable to pay damages to the applicant or take further actions to remedy this potentially serious breach.

The Discrimination Act is made to protect persons with certain “protected attributes”. One of these protected attributes is that of an irrelevant criminal record, which the applicant claims she has.

According to the act: “A person directly discriminates against someone else if the person treats, or proposes to treat, another person unfavourably because the other person has one or more protected attributes.”

It is, therefore, unlawful for an employer to discriminate against an employee by subjecting them to any other detriment.

The applicant, in this matter, had a previous work record in the ACT public service, which was in her immediate past employment. She assumed that because of this, the CIT would be swayed in her favour.

“I know my worth. I know I can be a public servant and then this whole situation has just affected me mentally, so I have been waiting to see the outcome of the decisions, to then go from there, because it’s very heartbreaking,” the applicant said.

The CIT’s rebuttal expounded on the point that the criminal record was irrelevant. It was from the CIT’s perspective that the applicant’s criminal record was incompatible with the inherent requirements of the position.

Some of the issues that the CIT had with the criminal record are:

• The events took place over an extended period, and there was some repetition of conduct.
• The varied conduct which included a physical and an antisocial component.
• On balance, she was not confident that the conduct would not be repeated.

From this evidence, the tribunal found that, although not all the matters included in the CIT’s evidence warranted the withdrawal, most were clear matters that the CIT was entitled to consider.

It was concluded that the CIT did not, in fact, discriminate based on the applicant’s criminal record, for the applicant does not have a protected attribute or an irrelevant criminal record.