The Australian Human Rights Commission (AHRC) has recommended that Australian publicly-listed IT cloud solutions provider, Data#3, pay thousands in compensation to a former employee it sacked in January 2014.
Following a lengthy inquiry, the AHRC determined that the former employee was discriminated against by the local reseller on the basis of his criminal record.
Data#3, however, maintains that the termination was within its rights.
The AHRC inquiry was prompted by a complaint made by the former employee against Data#3 in May 2014, alleging that the Brisbane-based company terminated his employment due to his criminal record, with the Commission issuing a preliminary report to the parties on 31 July 2015.
According to a report by the AHRC, the former employee was first interviewed with Data#3 for an IT position described as ‘Solution Specialist – Microsoft’ in late 2013, and was offered a job in mid-December of that year, starting in early January 2014.
However, on 14 January 2014, Data#3 discovered that the employee – whose identity has been kept anonymous – had a criminal record.
According to the AHRC, the former employee has a criminal conviction from 2011, when he was found by a New Zealand court to have committed six counts of selling the drug MDMA - he was sentenced to one year home detention.
Data#3 submitted that it was tipped off by a representative of a ‘major strategic supplier,’ who said that he had found two media reports which indicated that the former employee had a ‘serious criminal record’.
On 16 January 2014, the former employee’s manager scheduled a meeting with him and, although the precise details of the meeting are in dispute, it is agreed that it was at this meeting that the former employee either disclosed or confirmed that he had a criminal conviction.
The very next day, according to the AHRC, the former employee was told that his employment would be terminated due to the criminal conviction, despite claims by the former employee that he was told that there was no condition under his terms of employment that he needed to pass a criminal record check to obtain a security clearance.
For its part, Data#3 maintains that it was entitled to terminate the former employee’s employment during his probation period for any reason on the payment of one week’s notice, under the contract of employment.
“Data#3 Limited terminated [the former employee’s] employment on 17 January 2014, during his probation period, after reviewing his suitability for the role and concerns about his ability to perform the inherent requirements of that role,” the company stated in a submission to the AHRC.
“[The former employee’s] recent and serious criminal actions are inconsistent with Data#3 Limited’s core values and the requirement that both it and its employees (particularly senior employees) must have and exhibit the highest ethical standards.
“In those circumstances, [the former employee’s] continued employment was untenable,” it said.
When asked which inherent requirements of the position the former employee was assessed as being unable to perform, Data#3 stated they related specifically to the customer liaison and behavioural aspects of the position.
However, the Australian Human Rights Commissioner, Gillian Triggs, said in the report that she had found that Data#3’s act of terminating employment constituted “an exclusion” made on the basis of criminal record.
“This had the effect of nullifying or impairing [the former employee’s] equality of opportunity or treatment in employment or occupation," she said.
"The exclusion was not based on the inherent requirements of the job."
Triggs recommended that Data#3 develop workplace policies in relation to prevention of discrimination in employment on the basis of criminal record and conduct training to assist staff to fairly assess a job applicant with a criminal record.
While the AHRC does not possess the legislative powers to enforce its decisions, Triggs also recommended that Data#3 pay the former employee an amount in compensation for loss of earnings, and pay him an additional $5,000 in compensation for “hurt, humiliation, and distress as a result of being discriminated against”.
Data#3 has agreed to develop a workplace policy to be used in preventing discrimination on the basis of criminal record in the future, and rollout training to relevant staff on how to fairly assess whether a job applicant with a criminal record can perform the inherent requirements of a particular job.
But the company has flatly refused to pay any compensation to the former employee, reiterating its claim that it was legally entitled to terminate his employment.
Data#3 declined to comment.