06/08/2024
An employer may consider a prior criminal record to be relevant in a job selection process, in certain circumstances
A recent ACAT decision Complainant DT292023 v The Canberra Institute of Technology (Discrimination) [2024] ACAT 42 (the Decision) considered whether the Canberra Institute of Technology (CIT) withdrew an offer of employment to an applicant (the Applicant) based on an irrelevant criminal record that was disclosed as part of her application process.
The Applicant claimed that CIT was in breach of its obligations under the Discrimination Act 1991 (ACT) (the Act).
The Act protects people with certain “protected attributes” from direct or indirect discrimination, or being treated unfavourably on the basis of a protected attribute, one of which is an irrelevant criminal record.
The Act applies to protected areas of public life, which includes the workplace (s 10).
CIT responded by claiming that the Applicant’s criminal record was in fact relevant to the job selection process. This was due to a number of factors, including:
- the time elapsed since the criminal events was not of a sufficient length to render them irrelevant;
- the criminal events took place over an extended period and there was some repetition of conduct;
- the varied criminal conduct included a physical and an antisocial component;
- the employment role in question required access to all the supervisor’s diaries and emails; and
- on balance, the supervisor was not confident that the conduct would not be repeated.
Senior Member Drake ultimately agreed with CIT that the Applicant’s criminal record was in fact relevant to the job application. For this reason, there was no discrimination as the treatment of the Applicant was not on the basis of a protected attribute. The prior offences of the Applicant were relevant to her suitability for the position at CIT.
For more information on conducting criminal record checks as part of your onboarding, or ongoing due diligence on employees and contractors, contact our team of employment experts at enquiries@griffinlegal.com.au