The AHRC and Crim­i­nal Record Dis­crim­i­na­tion: A Tooth­less Tiger

The recent AHRC report into dis­crim­i­na­tion in employ­ment on the basis of crim­i­nal record, BE v Sun­corp Group Ltd [2018] AusHRC 121, has gar­nered sig­nif­i­cant media atten­tion and com­mu­ni­ty debate.

What it serves to high­light is that the Aus­tralian Human Rights Com­mis­sion (AHRC) is a ​“tooth­less tiger” when it comes to dis­crim­i­na­tion on the basis of crim­i­nal record. As not­ed by the AHRC on its website:

“It is impor­tant to note that while cer­tain con­duct may be found to con­sti­tute dis­crim­i­na­tion by the Com­mis­sion, the HRE­OC Act does not make the con­duct unlaw­ful. If the Com­mis­sion finds that an act or prac­tice con­sti­tutes dis­crim­i­na­tion, and the com­plaint is unable to be con­cil­i­at­ed, then the Com­mis­sion’s actions are lim­it­ed to prepar­ing a report with rec­om­men­da­tions, to the Attor­ney-Gen­er­al for tabling in Par­lia­ment. The Com­mis­sion does not have the pow­er to make respon­dents to a com­plaint com­ply with or imple­ment its recommendations.”

This lack of enforce­ment capa­bil­i­ty, cou­pled with the fact com­plainants are unable to bring pro­ceed­ings in a fed­er­al court for dis­crim­i­na­tion on the basis of crim­i­nal record (as they can, for instance, in respect of dis­abil­i­ty, race, sex or age dis­crim­i­na­tion), leaves employ­ers sub­ject to an AHRC rec­om­men­da­tion with an inter­est­ing deci­sion to make as to whether it should be imple­ment­ed. This is explored fur­ther below.

The Report: BE v Sun­corp Group Ltd

Mr BE (Com­plainant) made a writ­ten com­plaint to the AHRC alleg­ing that Sun­corp exclud­ed him from employ­ment by with­draw­ing a con­di­tion­al offer for the posi­tion of Work@Home Con­sul­tant on the basis of his crim­i­nal record.

On 30 Novem­ber 2015, the Com­plainant received an offer of employ­ment which was con­di­tion­al upon a sat­is­fac­to­ry back­ground check includ­ing a crim­i­nal his­to­ry check. The Com­plainant con­sent­ed to Sun­corp per­form­ing this crim­i­nal his­to­ry check.

The crim­i­nal check revealed that in 2008 he had been con­vict­ed of using a car­riage ser­vice to access child pornog­ra­phy mate­r­i­al (for which he was ordered to serve 12 months in prison but released on a 2 year good behav­iour bond) and pos­ses­sion of child pornog­ra­phy (for which he was fined $5,000).

The crim­i­nal his­to­ry check also showed that in Octo­ber 2015 he was fined $1,000 for a fail­ure to com­ply with report­ing oblig­a­tions. Those report­ing oblig­a­tions were relat­ed to the pre­vi­ous child pornog­ra­phy offences.

After receiv­ing this infor­ma­tion Sun­corp, in accor­dance with its usu­al prac­tice, con­tact­ed the Com­plainant to dis­cuss his crim­i­nal record.

Short­ly after that, Sun­corp noti­fied the Com­plainant that his con­di­tion­al offer of employ­ment had been rescind­ed. His crim­i­nal record was not cit­ed as a rea­son for the rescission.

He was informed that he had nar­row­ly missed out on the role and would auto­mat­i­cal­ly be con­sid­ered as part of the next recruit­ment round in Feb­ru­ary 2016. He was not, how­ev­er, con­tact­ed about the recruit­ment process at that time. When the Com­plainant enquired about this in March 2016 he was informed that he was not con­sid­ered for the Feb­ru­ary 2016 intake as the recruiter had changed. He was encour­aged to apply for fur­ther adver­tised roles with Sun­corp. He was not told at any time that his crim­i­nal record would be a bar­ri­er to employ­ment with Suncorp.

In its response to the AHRC Sun­corp sub­mit­ted that it had con­cerns about the Com­plainan­t’s abil­i­ty to under­take the inher­ent require­ments of the posi­tion of Work@Home con­sul­tant based on his crim­i­nal con­vic­tions and, in any event, pref­er­ence was giv­en to an inter­nal can­di­date who applied for the role at a late stage in the recruit­ment process.

Sun­corp fur­ther sub­mit­ted that the Sun­corp Val­ues are inher­ent require­ments of the posi­tion and the Com­plainan­t’s crim­i­nal record gave rise to seri­ous con­cerns as to whether he could demon­strate and ful­fil those val­ues includ­ing respect, hon­esty and trust.

As not­ed at para­graph 43 of the report:

“Based on its sub­mis­sions from 8 June 2016, 9 Sep­tem­ber 2016, and 26 Sep­tem­ber 2016, it appears that there are sev­er­al aspects of the role that Sun­corp believes Mr BE can­not per­form as a result of his alleged inabil­i­ty to sat­is­fy the inher­ent require­ments of being trust­wor­thy and of good char­ac­ter. These aspects of the role are as follows: 

a. the role involves deal­ing with con­fi­den­tial cus­tomer information

b. the role is ​‘large­ly unsu­per­vised’ as it is based at home

c. the role involves work with tech­nol­o­gy and the inter­net, and

d. the role involves work­ing to pro­mote Sun­cor­p’s cor­po­rate responsibility.”

In its report the AHRC con­sid­ered these sub­mis­sions in detail and found that Sun­corp had dis­crim­i­nat­ed against the Com­plainant on the basis of crim­i­nal record by exclud­ing him from the role of Work@Home Consultant.

At para­graph 75 of the report it was held:

“Mr BE’s con­vic­tions are undoubt­ed­ly very seri­ous. The law and the com­mu­ni­ty appro­pri­ate­ly respond to such offences with cen­sure. Fur­ther, aspects of the role require a Work@Home Con­sul­tant to be trust­wor­thy and of good char­ac­ter: in par­tic­u­lar, the require­ment that a Con­sul­tant be able to deal appro­pri­ate­ly with con­fi­den­tial infor­ma­tion. Notwith­stand­ing this, I con­sid­er that based on the mate­r­i­al before the Com­mis­sion, includ­ing Mr BE’s work expe­ri­ence and train­ing, it is not appar­ent that he is unable to ful­fil the require­ment to be trust­wor­thy and of good character.”

The work expe­ri­ence that was con­sid­ered includ­ed the Com­plainan­t’s 7 years as a case­work­er for the Telecom­mu­ni­ca­tions Indus­try Ombuds­man after his 2008 con­vic­tions (of which the TIO was on notice) where he had access to per­son­al and con­fi­den­tial information.

At para­graph 77, the report continues:

“In par­tic­u­lar, I do not find that Mr BE’s crim­i­nal record alone sug­gests that he: 

• is unable to deal appro­pri­ate­ly with con­fi­den­tial cus­tomer infor­ma­tion, or
• is unable to per­form duties that involve the use of tech­nol­o­gy and the Inter­net, unsu­per­vised, through Sun­cor­p’s systems.”

The AHRC also found that Sun­cor­p’s cor­po­rate social respon­si­bil­i­ty pro­grams (which encour­aged par­tic­i­pa­tion in com­mu­ni­ty pro­grams includ­ing those involv­ing young peo­ple) were not suf­fi­cient­ly con­nect­ed to the job of con­sul­tant for that to be a rel­e­vant fac­tor in deter­min­ing the Com­plainan­t’s suit­abil­i­ty for employ­ment in the role.

On the basis of the above find­ings, the AHRC made a rec­om­men­da­tion that Sun­corp pay the Com­plainant com­pen­sa­tion of $2,500 on the basis of hurt, humil­i­a­tion and dis­tress. Fur­ther, it rec­om­mend­ed that Sun­corp revise its poli­cies in respect of recruit­ment of peo­ple with crim­i­nal records in accor­dance with the applic­a­ble AHRC pub­li­ca­tion and con­duct train­ing for its recruit­ment, human resources and man­age­ment staff involved in deci­sions in respect of crim­i­nal record discrimination.

AHRC Rec­om­men­da­tions – Response of Employers

Unlike an order of a tri­bunal or court, the defi­ance of which could lead to a find­ing of con­tempt, an employ­er has the right to decline to imple­ment a rec­om­men­da­tion of the AHRC relat­ing to crim­i­nal record dis­crim­i­na­tion. It is a gen­uine option. A high per­cent­age of employ­ers sub­ject to such rec­om­men­da­tions refuse to do so. 

In this par­tic­u­lar case, Sun­corp declined to pay com­pen­sa­tion to the Com­plainant. Sun­corp pro­vid­ed a respect­ful but firm response to the AHRC:

“We have care­ful­ly con­sid­ered your find­ings and rec­om­men­da­tions. In par­tic­u­lar we note your find­ing that Mr [BE] was dis­crim­i­nat­ed against on the basis of his crim­i­nal record. We respect­ful­ly main­tain that Mr [BE]‘s crim­i­nal record is of a seri­ous nature and impacts on his abil­i­ty to per­form inher­ent require­ments of the Work@Home Con­sul­tant role. For this rea­son, Sun­corp declines to pay any com­pen­sa­tion to Mr [BE].

Notwith­stand­ing the above, Sun­corp has devel­oped com­pre­hen­sive recruit­ment pro­ce­dures and pro­vides on-going train­ing to employ­ees, includ­ing in rela­tion to anti-dis­crim­i­na­tion and equal oppor­tu­ni­ty. These pro­ce­dures and train­ing assist with ensur­ing we can fair­ly assess whether a prospec­tive employ­ee with a crim­i­nal record can per­form the inher­ent require­ments of a par­tic­u­lar role, on a case-by-case basis.

We will also con­sid­er the Com­mis­sion’s pub­li­ca­tion, On the Record: Guide­lines for the Pre­ven­tion of Dis­crim­i­na­tion in Employ­ment on the Basis of Crim­i­nal Record, as part of our ongo­ing review of pro­ce­dures and train­ing. We are com­mit­ted to ensur­ing fair and non-dis­crim­i­na­to­ry meth­ods of assess­ing a prospec­tive employ­ee’s crim­i­nal record against the inher­ent require­ments of the role.”

Unlike a court or tri­bunal deci­sion, the response of the employ­er is record­ed as part of the report, which is then pro­vid­ed to the Attor­ney-Gen­er­al and is pub­licly available.

As such, a key con­sid­er­a­tion for employ­ers sub­ject to an AHRC rec­om­men­da­tion of this kind is that of rep­u­ta­tion, includ­ing any pub­lic or polit­i­cal oppro­bri­um that might fol­low (if any) from a fail­ure to imple­ment recommendations.

The real­i­ty is that the tech­ni­cal and nuanced legal delib­er­a­tions in an AHRC report large­ly give way to the ​“court of pub­lic opin­ion” and the vis­cer­al reac­tion the com­mu­ni­ty at large nat­u­ral­ly has to the com­mis­sion of cer­tain crim­i­nal offences. 

With respect to the AHRC, its lack of enforce­ment pow­ers effec­tive­ly ren­ders its rec­om­men­da­tions on crim­i­nal record dis­crim­i­na­tion pre­ca­to­ry. It is not axiomat­ic that employ­ers will or even should imple­ment its rec­om­men­da­tions in this area. The final deci­sion tak­en by an employ­er will like­ly be as informed by media and rep­u­ta­tion­al fac­tors as it is legal considerations.