Can I be discriminated against by my employer for holding a criminal record?

The Fair Work Act 2009 (Cth) and the Equal Opportunity Act 2010 (Vic) prevents employers from discriminating against employees based on protected attributes. Whilst the list of protected attributes is exhaustive, neither of these legislations include the holding of a Criminal Record as a protected attribute, making criminal record holders particularly vulnerable during employment processes.

This may seem like the end of the road for many employees who have been discriminated against on this basis, however, recent amendments to anti-discrimination laws have narrowed the scope in which job applicants and employees may be scrutinised.

THE 2019 REGULATIONS

The Australian Human Rights Commission Regulations 2019 (the 2019 Regulations) commenced on 1 October 2019 and included ‘irrelevant criminal activity’ to the list of protected attributes. The Australian Human Rights Commission Act 1986 (Cth) provides recourse for the Australian Human Rights Commission to ‘investigate any act or practice.. that may constitute discrimination and where appropriate try to resolve the complaint of discrimination by conciliation.’[1] As such, discrimination made against employees, or prospective employees, for holding an irrelevant criminal record will now be deemed unlawful.

In the case of BE v Suncorp Group Ltd [2018] AusHRC121 (the Suncorp Case) Suncorp Group was held to have unlawfully discriminated against a prospective employee. Despite the prospective employee holding convictions for child pornography offences, the Commission found that these convictions would not have affected him from fulfilling the inherent requirements of the role and Suncorp’s withdrawal of their offer of employment was deemed unlawful.

While this may be a step in the right direction for employees, the Commission is often labeled a “toothless tiger” as it does not hold the relevant authority to make binding orders and none of their recommendations are legally enforceable. Nonetheless, all recommendation made by the Australian Human Rights Commission is tabled and used as guidelines for further reform.

AVENUES FOR CURRENT EMPLOYEES

Notwithstanding the above, if you are a current employee and have been dismissed on the basis of your irrelevant criminal record, you may be entitled to make a claim for an unfair dismissal if the Fair Work Commission finds that the reason for dismissal was invalid.

In 2018, McDonald Murholme Solicitors an employee who had been unfairly dismissed based on their irrelevant criminal record. To read more about this case, see https://employmentlawonline.com.au/criminal-conviction-justify-dismissal/

If you feel as though you have been unlawfully discriminated against based on your criminal record, please contact us on (03) 9650 4555.

[1] Section 30 of the Australian Human Rights Commission Act 1986 (Cth)