In the recent case of Mr CG v State of NSW (Rail Corporation NSW) [2012], the NSW passenger train operator, RailCorp was found to have discriminated against a job applicant based on his criminal record.

What does this mean for employers?

  • A criminal record is a ground of discrimination under the Federal Human Rights Commission Act 1986 (HRCA) and under certain State discrimination laws.  In addition, certain State laws prohibit discrimination on the grounds of spent convictions.
  • Criminal records include convictions, charges, police investigations, spent convictions and unrecorded convictions.  Not all of these will appear on official police records.
  • Although police checks may be conducted when recruiting potential employees, results cannot form the basis of any decision to reject an applicant unless there is a ‘tight and close’ connection between the conviction and the inherent duties of the position.
  • An applicant’s criminal record that results in an inability to perform the inherent requirements of the position means that an employer can rely on an exemption to discrimination.  Inherent requirements of a position are determined by reference to the essential requirements of the position.  For example drink driving offences may be relevant for a delivery driver position.
  • The Australian Human Rights Commission (AHRC) cannot make binding decisions that penalise employers for breach of the HRCA although its report will be publicly tabled in Parliament.  However, breach of applicable State laws can result in claims for compensation or reinstatement orders.

The case in brief

In 2009 Mr CG (CG) applied for a Market Analyst position with RailCorp.  CG had previously been employed by RailCorp in various roles from 1999 -2007 including as a Market Analyst from September 2003 to April 2005. 

CG was convicted of drink driving offences in 2001 and 2008 which occurred outside of work hours and away from his workplace.  During the recruitment process CG only declared the 2008 conviction. Although CG was the preferred candidate, he was unsuccessful on the basis of his criminal record.

RailCorp argued that this was not discrimination as CG’s criminal record meant he was unable to perform the inherent duties of the position including:

  • complying with RailCorp’s Drug and Alcohol Policy;
  • upholding RailCorp’s safety first values; and
  • performing duties faithfully, diligently, carefully, honestly and with the exercise of skill and good judgement.

The decision

  • The AHRC rejected RailCorp's contention that CG's criminal record meant he couldn't comply with the inherent requirements of the job. The Commission found that:
    • CG’s criminal offences had no connection with his employment as a Market Analyst;
    • the convictions did not occur during work hours or whilst he was performing his work duties; and
    • CG would not be required to drive as part of his work activity or engage in any safety critical activity related to the provision of rail transport services.

Therefore there was no ‘tight and close’ connection between the convictions and the position’s inherent requirements.

The AHRC acknowledged that having no criminal record may be an inherent requirement of some positions with a limited class of employers but RailCorp was not such an employer and a Market Analyst was not such a position.  The AHRC commented that failure to disclose a conviction when one was required could form the basis for refusing to employ a candidate or dismissing an employee on the basis of dishonesty.  However, in this case, there was no evidence that RailCorp’s decision not to offer CG employment was based on his lack of candour, but rather on the basis of his criminal record. 

The AHRC recommended that RailCorp pay CG $7,500 in compensation for hurt, humiliation and distress. RailCorp maintained its view that it had not discriminated against CG and declined to pay the recommended compensation.  RailCorp undertook to review its recruitment policies to ensure that no person is excluded from employment at RailCorp because of a criminal record. 

Tips for employers

  • Criminal record checks require the consent of the candidate. 
  • It is best practice to only require information about a candidate’s criminal record if there is a close connection between the requirements of the position and the criminal record. 
  • In some professions (including those involving working with children), police checks may be mandatory.  However, even in this case a candidate with a criminal record should not be automatically excluded. 
  • Employers will need to assess whether the particular record results in an inability to perform the inherent duties of the particular position before rejecting the candidate on this basis alone.  The candidate should also be given the opportunity to explain the circumstances surrounding the criminal record. 
  • Employers should ensure that any equal opportunity policy also relates to recruitment decisions and should educate staff about this policy. 
  • Employers should consider their obligations under privacy legislation when retaining criminal history information on an employee’s file.