Employment offer withdrawn following discovery of criminal record

In assessing job applications, prospective employers must be careful in assessing the available information about candidates to ensure that the reasons for rejecting the unsuccessful candidates do not constitute unlawful discrimination.

Recently, the ACT Civil and Administrative Tribunal (the Tribunal) ruled in the decision of Complainant DT292023 v The Canberra Institute of Technology that the ACT Government did not discriminate against a candidate after failing to hire her after learning of her criminal record, because the criminal record was deemed not to be ‘irrelevant.’

Facts

In March 2023, the unnamed complainant received an offer of employment from the Canberra Institute of Technology (CIT). In May 2023, CIT decided to withdraw the job offer after consideration of the complainant’s criminal history, which she had disclosed during the application process. The loss of the complainant’s appointment to CIT left her devastated. The complainant then filed a complaint asserting that CIT’s decision constituted discrimination, arguing that her criminal record was irrelevant to her suitability for the role.

Decision

Under the Discrimination Act 1991 (ACT) (Discrimination Act) (and indeed other anti-discrimination legislation across the country), certain attributes, including an irrelevant criminal record, are protected attributes. It is unlawful to discriminate against someone based on a protected attribute.

The complainant had an excellent history of working in the ACT public service, which she believed would positively influence CIT's decision to hire her. The complainant also openly and honestly disclosed her criminal record to CIT.

In its defence, CIT argued that the criminal record was incompatible to the inherent requirements of the position. In particular, CIT considered:

• the record involved incidents occurring over a prolonged period, with recurring behaviour;
• the period of time following the criminal activity was not sufficient;
• the behaviour included both physical and antisocial elements; and
• there was concern about the likelihood of similar conduct being repeated.

The Tribunal concluded that while not all aspects of CIT’s concerns justified the withdrawal, the majority were legitimate considerations. Ultimately, it was determined that CIT did not discriminate based on the complainant’s criminal record, as the record was not deemed irrelevant under the protections of the Discrimination Act and the offences were considered relevant to assessing her suitability for the position she applied for.

Take home messages

The outcome of this case underscores the balance between protecting individuals from discrimination while also acknowledging the legitimate considerations employers must make in ensuring workplace safety and suitability. Employers are obligated to navigate these decisions carefully, weighing legal obligations against practical considerations, such as the nature of the role and the potential risks associated with a potential applicant’s background.

Should you wish to discuss the matters raised in this article, please contact Sathish Dasan on + 61 8210 1253 or sdasan@normans.com.au, Annabelle Narayan on +61 8 8210 1292 or anarayan@normans.com.au, or Shivani Gandhi on +61 8 8210 1227 or sgandhi@normans.com.au.