HREOC Report No. 20
Reports of inquiries into
complaints of discrimination in employment on the basis of criminal record
HREOC Report No. 20
Ms Renai Christensen v Adelaide
Casino Pty Ltd
Contents
2.
The Commission's jurisdiction3.1. The Complainant
3.2. The Respondent10.1 Whether there
was an act or practice in terms of the HREOC Act
10.2 Whether there was a distinction, exclusion, or preference on
the basis of criminal record
10.3 Whether the distinction, exclusion or preference nullified or
impaired equality of opportunity or treatment in employment or occupation
10.4 Whether the distinction, exclusion or preference was based on
the inherent requirements of the job13.
Actions taken by the respondent as a result of the findings and recommendationsAPPENDIX A
Functions
of the Human Rights and Equal Opportunity Commission
1.
Introduction
This report to the
Attorney-General concerns an inquiry made by the Human Rights and Equal
Opportunity Commission ("the Commission") into a complaint made by Ms
Renai Christensen on 6 November 2000. The complaint is against Adelaide
Casino Pty Ltd under the Human Rights and Equal Opportunity Commission
Act 1986 (Cth) (the HREOC Act). The complaint was made pursuant to
section 32(1)(b) of the HREOC Act which provides for a complaint to be
made in writing to the Commission alleging that an act or practice constitutes
discrimination.
2.
The Commission's jurisdiction
This is a complaint
under the HREOC Act of discrimination in employment on the ground of criminal
record. The jurisdiction of the Commission in relation to complaints of
discrimination in employment is described in Appendix
A to this report.
At the time of its
enactment in 1986 the HREOC Act set out a number of grounds of discrimination.
In 1989 the Human Rights and Equal Opportunity Commission Regulations
("the Regulations") declared a number of additional grounds of discrimination
for the purposes of the HREOC Act with effect from
1 January 1990. Criminal record is one of those grounds.
3. The
parties
3.1. The Complainant
The complainant is
Ms Renai Christensen.
3.2. The Respondent
The respondent to the
complaint is the Adelaide Casino Pty Ltd trading as the Adelaide Casino.
4. Summary
of the complaint
In summary, on 6 November
2000, Ms Christensen lodged a complaint with the Commission alleging discrimination
on the basis of her criminal record when seeking employment with Adelaide
Casino. The complaint arises from the respondent's rejection of Ms Christensen's
application for employment as a bar attendant in October 2000. In the
course of that application Ms Christensen notified the Casino that she
was convicted of larceny as a juvenile. She claims that, although she
was qualified for the position, Adelaide Casino rejected her application
because of her criminal record.
Employment for the
position involved a five stage selection process. Ms Christensen completed
the pre-testing session, interview and reference checks. However, she
was unsuccessful at the fourth stage which involved the certification
by the Casino's security representative pursuant to the Casino Act
1997 (SA) that she was a "fit and proper person" to be employed. The
final stage is licensing approval by the Liquor and Gaming Commissioner.
The complaint is denied
by the respondent. In summary, the respondent claims that the decision
was not made on the basis of Ms Christensen's criminal record but on other
grounds, namely the nature or circumstances of the offence: at age 16,
on her own and not under peer pressure, she stole two bottles of alcohol
from a bottle shop, she was then living with friends who had stolen goods
in the house and a police investigation regarding those goods led to her
being charged. The Casino did not proceed with her employment as it could
not be satisfied that she met the requirements of trustworthiness and
good character.
5. Relevant
legal framework
Section 3(1) of the
HREOC Act defines "discrimination" as follows:
Discrimination,
except in Part IIB, means:
(a) any distinction,
exclusion or preference made on the basis of race, colour, sex, religion,
political opinion, national extraction or social origin that has the effect
of nullifying or impairing equality of opportunity or treatment in employment
or occupation; and
(b) any other distinction,
exclusion or preference that:
(i) has the effect
of nullifying or impairing equality of opportunity or treatment in employment
or occupation; and
(ii) has been declared by the regulations to constitute discrimination
for the purposes of this Act;
but does not include
any distinction, exclusion or preference:
(c) in respect of
a particular job based on the inherent requirements of the job; or."
Regulation 4(a)(iii)
of the Regulations provides that a distinction, exclusion or preference
made on the ground of criminal record will constitute discrimination
for the purposes of sub-paragraph (b)(ii) of the definition of "discrimination"
in section 3(1) of the HREOC Act . [1]
Section 31(b) of the
HREOC Act confers on the Commission the function of inquiring into
"any act or practice, including any systemic practice, that may constitute
discrimination" and, where the Commission considers it appropriate
to do so, to endeavour, by conciliation, to effect a settlement of the
matters that gave rise to the inquiry.
Section 31(b)(ii) provides
that where the Commission is of the opinion that the act or practice constitutes
discrimination, and has endeavoured without success to reach a settlement,
it will to report to the Minister in relation to the inquiry.
Section 35 of the HREOC
Act sets out the requirements of the Commission's report and the recommendations
that may be made. Section 35(2) provides:
Where, after an
inquiry into an act done or practice engaged in by a person, the Commission
finds that the act or practice constitutes discrimination, the Commission:
(a) shall serve
notice in writing on the person setting out its findings and the reasons
for those findings;
(b) may include
in the notice any recommendations by the Commission for preventing a repetition
of the act or a continuation of the practice;
(c) may include
in the notice any recommendation by the Commission for either or both
of the following:
(i) the payment
of compensation to, or in respect of, a person who has suffered loss
or damage as a result of the act or practice;
(ii) the taking of other action to remedy or reduce loss or damage suffered
by a person as a result of the act or practice;
6.
Conciliation
In accordance with
section 31(b)(i) of the HREOC Act the Commission attempted to effect a
settlement between the parties. The attempt at conciliation was unsuccessful.
7. The
inquiry process
On 25 September 2001,
I provided to the parties my 'Report of an unconciliable complaint under
the Human Rights and Equal Opportunity Commission Act 1986'. That Report
contained my preliminary findings in respect of whether the complainant
had been discriminated against within the terms of section 3(1) of the
HREOC Act. I formed the preliminary view that the respondent had discriminated
against the complainant within the terms of section 3(1) on the basis
of her criminal record.
In reaching that view
I made the following preliminary findings:
- as the complainant
was applying for a position of bar attendant with the respondent, the
relationship between the parties is one that falls within the definition
of "employment or occupation"; - although the respondent
asserted that it was not the larceny offence in itself that it considered
relevant but the complainant's explanation of her conduct and the circumstances
in which the offence took place, I considered this was an arbitrary
distinction and that it is not possible to separate the circumstances
of the offence from the criminal record itself and that accordingly
there was an exclusion on the grounds of the complainant's criminal
record; - as the complainant
lost the opportunity to be offered the position of bar attendant at
the Casino, the act complained of impaired the complainant's equality
of opportunity; - the complainant's
criminal offence would not prevent her from performing the technical
tasks of a bar attendant; - the complainant's
criminal record was not relevant to the position of bar attendant. I
did not consider that her larceny offence indicated that she represented
a security risk in handling cash and accessing and maintaining alcohol
stocks. The offence did not occur in the context of her employment and
the complainant subsequently worked in the hospitality industry, including
as a bar manager. Further, I did not consider that the larceny offence
indicated that the complainant was not trustworthy and of good character
as required of Casino employees seeking licensing approval under the
Casino Act 1997 (SA). The offence occurred eight years prior to the
complainant's job application when she was a juvenile and, there was
no evidence before me that she has committed further offences. Accordingly,
I was of the view the complainant's criminal record did not mean that
she could not perform the inherent requirements of the job of bar attendant.
Having provided the
parties with my preliminary findings, I invited them, pursuant to sections
33 and 27 of the HREOC Act, to make further submissions orally and, or,
in writing. On 15 November 2001 the respondent made a further written
submission. The complainant did not provide a further written submission.
Neither party sought to make an oral submission.
On 20 March 2002 I
issued a notice of my findings and recommendations in relation to the
complaint under section 35 of the HREOC Act.
8. Matters
for consideration
In deciding whether
there has been "discrimination" within the terms of section 3(1) of the
HREOC Act (read with regulation 4 of the Regulations), three elements
must be considered in the context of this case:
- whether there was
an act or practice within the meaning of section 30(1) of the HREOC
Act ;[2] - whether that act
or practice involved a distinction, exclusion or preference that was
made on the basis of the complainant's criminal record; and - whether that distinction,
exclusion or preference had the effect of nullifying or impairing equality
of opportunity or treatment in employment or occupation.
I must also consider
whether that distinction, exclusion, or preference was based on the inherent
requirements of the job. (See paragraph (c) of the definition of discrimination
in section 3(1) of the HREOC Act.)
It is not contested
that Ms Christensen has a criminal record (a conviction for larceny) details
of which were before the respondent when considering her application for
employment and that there was an act or practice which arose in the course
of employment, namely the decision to reject Ms Christensen's application
for employment.
The respondent does
contest, however, that it made its decision on the basis of the complainant's
criminal record.
If I find that the
respondent did make the decision on the basis of criminal record and that
the decision involved a distinction, exclusion or preference that had
the effect of nullifying or impairing equality of opportunity or treatment
in employment, then I must also decide whether that distinction, exclusion
or preference was based on the inherent requirements of the job.
9.
Submissions
Ms Christensen asserts
that her application was rejected because of her criminal record. She
says that she advised the Adelaide Casino of the conviction at the time
of her application. She states that she was subsequently granted an interview
and was told she was successful and that she needed to have her fingerprints
taken the next day. She says that after having had her fingerprints taken
she was required to return to the Casino to fill in the necessary forms.
She says that after completing this process she was told by the Human
Resources Manager that her juvenile offence may be a concern with security.
Ms Christensen says that when she returned to the Casino the following
day she was told they could not pursue her employment due to their concerns.
Ms Christensen submits,
in essence, that the Adelaide Casino was unjustified in rejecting her
application having regard to: the fact that she committed the offence
when she was a juvenile and that a significant period of time had passed
since then (approximately 7 or 8 years); her relevant work history (including
bar management and the handling of large amounts of money); the availability
of referees to attest to her character; and, that she is a responsible
person for the purposes of the Liquor Licensing Act 1997 (SA).
Section 4 of that Act provides that a "responsible person for licensed
premises means a person who is . . responsible for supervising and managing
the business conducted under the licence".
The outcome sought
by Ms Christensen is that the Adelaide Casino provide an apology acknowledging
that her criminal record was not relevant to the position she applied
for, that she be welcome to apply for employment at the Casino and that
her criminal record not be taken into consideration.
The Adelaide Casino
states the conviction itself was not fatal to Ms Christensen's application.
Rather, it was the nature or circumstances of the offence that were of
concern. Namely, she committed the offence at age 16 (approximately 7
years earlier), she stole two bottles of alcohol from a bottle shop, she
was on her own and not under peer pressure to steal the items, she was
then living with friends who had stolen goods in the house and a police
investigation regarding those goods led to her being charged as the police
had her description from the bottle shop.
In its letter to me
of 19 February 2001 responding to the complaint, the Adelaide Casino stated:
It is reiterated
that Ms Christensen's application did not proceed beyond step 4 of the
selection process, due to the nature of the business and the security
representative unable to certify that they believed Ms Christensen to
be a "fit and proper person" to be employed at Adelaide Casino ...Although Ms Christensen
asserts that she was deemed unsuccessful due to her criminal record,
it should be noted that . . consideration was given to the events and
nature of the larceny offence together with the requirements of the
Bar Attendant role and the risks associated with employing Ms Christensen
into the Casino business, not strictly based on the fact she had a criminal
record.. we are bound by
the Casino Act 1997 which indicates that we, as the licensee must not
permit a person to occupy or work in a position of responsibility unless
the person is approved as a suitable person to work in a position of
responsibility of the relevant class.
The Adelaide Casino
stated that the absence of a criminal record is not necessarily an inherent
requirement of the position for which Ms Christensen applied. It stated:
A determination was
made not to proceed with Ms Christensen's application for a licence,
particularly given the nature of our business which requires Management
to be satisfied that a prospective employee can be trusted and possess
a character which can be held in high regard. We regard these matters
as inherent requirements for all positions at the Adelaide Casino. Unfortunately,
the nature of the larceny charge as related to Ms Christensen did not
satisfy Management that she met those requirements.
In relation to the
issue of inherent requirements the Adelaide Casino referred to particular
aspects of bar attendant duties. They are:
- Cash handling duties,
including collecting money from customers, transporting money from register/till
areas to lock up. - Maintaining alcoholic
beverage stocks ... transporting stocks from the storage areas to bars.
In its submission of
15 November 2001, following the preliminary findings, the Adelaide Casino
stated:
First, our client
disagrees with the preliminary finding that there was 'an arbitrary
distinction' between the larceny offence in itself and the complainant's
explanation of her conduct and the circumstances in which the offence
took place. Merely because Ms Christensen had a conviction was not in
itself fatal to her application. It was her conduct as she explained
it which was taken into account. The disclosure of the offence simply
drew the matter to our client's attention, leading to the subsequent
explanation by Ms Christensen of what had taken place.Secondly, our client
vigorously disagrees with the suggestion that her conduct was not relevant
to the position of bar attendant. In this regard, we note that while
the preliminary finding refers to the complainant's criminal record,
our client regards the conduct as the relevant matter. Presumably the
difference arises from the earlier rejection of that distinction as
an arbitrary one.The preliminary report
asserts that the offence did not occur in the context of the complainant's
employment. By this, we assume that what is meant is that the conduct
in issue was not directed against her then employer. Our client does
not consider that to be a relevant distinction. What was relevant was
that Ms Christensen has demonstrated that she was prepared to be dishonest
and untrustworthy. Whether she was a customer or an employee does not
appear to be a material distinction. Rather, she demonstrated that she
was prepared to be dishonest when given the opportunity, without any
peer pressure.Thirdly, our client
disagrees with the view that her conduct (again, the preliminary finding
refers to the larceny offence rather than the conduct, which our client
considered, and still considers, to be the relevant matter) did not
indicate that the complainant was not trustworthy. The fact is that
Ms Christensen acknowledged that she had stolen. Trust is a matter difficult
to gain, and readily lost. The circumstances of her acknowledgement
of stealing were such that our client was not prepared to place trust
in her. Our client does not consider that it has to wait until it catches
someone stealing from it before it can form a legitimate view that an
individual is not trustworthy. Nor did our client consider that the
circumstances disclosed by Ms Christensen indicated that she was of
good character.
10. Findings
As outlined previously,
in deciding whether the matter complained of constitutes discrimination
within the terms of section 3(1) of the HREOC Act I must consider the
following issues:
10.1 Whether there
was an act or practice in terms of the HREOC Act
Ms Christensen applied
for employment as a bar attendant at Adelaide Casino. Her application
was unsuccessful. I find that the decision to reject her application was
an act within the meaning of the HREOC Act.
10.2 Whether there
was a distinction, exclusion, or preference on the basis of criminal record
"On the basis
of"
I need to be satisfied
on the balance of probabilities that the rejection of Ms Christensen's
application for employment was on the basis of criminal record.
There appears to be
no direct case law to assist in the interpretation of the words "on the
basis of". In considering the expression "based on", in a similar definition
of discrimination under section 9(1) of the Racial Discrimination Act
1975 (Cth) [3],
the Federal Court held that the words were to be equated with the phrase
"by reference to", rather than the more limited "by reason of":
Victoria v Macedonia Teacher's Association of Victoria Inc (1999)
91 FCR 47.
"Criminal Record"
The term "criminal
record" is not defined in the Regulations nor in the HREOC Act, nor is
any distinction drawn between spent and unspent convictions.
In considering how
to define this term I have had regard to decisions dealing with the interpretation
of remedial legislation such as the HREOC Act.
In IW v City of
Perth (1997) 191 CLR 1 Brennan C J and McHugh J discussed ".the rule
of construction that beneficial and remedial legislation, like the Act
[ie the Equal Opportunity Act 1984 (WA)], is to be given a liberal
construction". Their Honours said (at 12),
It is to be given
'a fair, large and liberal' interpretation rather than one which is
'literal or technical'. Nevertheless, the task remains one of statutory
construction. Although a provision of the Act must be given a liberal
and beneficial construction, a court or tribunal is not at liberty to
give it a construction that is unreasonable or unnatural.
In that matter Kirby
J noted (at 48),
The purpose of anti-discrimination
legislation, such as the Act, is to ensure that, within the areas prescribed
by Parliament, equals are treated equally and human rights are not violated
by reference to inappropriate or irrelevant distinctions. Especially
where important human rights are concerned, protective and remedial
legislation should not be construed narrowly lest courts become the
undoers and destroyers of the benefits and remedies provided by such
legislation. Courts will not unduly stretch the language of such legislation.
But they will be very slow to find that the effect of something which
is discriminatory falls outside the ambit of the legislation, given
its purpose. This is especially so where a complainant, who can establish
unequal treatment, falls within the category of persons for whom anti-discrimination
legislation has apparently been enacted. It is legitimate in giving
effect to such legislation, to keep in mind its broad purposes and,
to the full extent that the text permits, to ensure that the Act achieves
its objectives and is not held to have misfired. To the extent that,
in legislation such as the Act, courts adopt narrow or pernickety approaches,
they will force parliaments into expressing their purposes in language
of even more detail and complexity. This will increase the burden and
costs of litigation. It will obscure the broad objectives of such statutes
and frustrate their achievement.
In my view, the provisions
of the HREOC Act should be given a liberal construction. I consider it
would be unduly restrictive to define the term "criminal record" as just
meaning the conviction as recorded. In my view, the term encompasses not
only the actual record of a conviction but also the circumstances of the
conviction including the underlying conduct . [4]
The submission of Adelaide
Casino would suggest that the term "criminal record" should be confined
to the actual record of the conviction itself, thereby drawing a distinction
between the record and the circumstances of the offence. In my view, such
an approach involves a construction which, "enables the ascription of
negative stereotypes or the avoidance of individual assessment [which
will result in] the essential object of the Act to promote equality of
opportunity in employment [being] frustrated": Commonwealth v Bradley
per Black CJ (Bradley's case) [5]
If I was to permit
such a distinction to be drawn between a person's criminal record and
the circumstances in which the offence was committed, a respondent could
avoid a complaint of criminal record discrimination by simply asserting
the discrimination was on the basis of the circumstances of the offence,
not the fact of the criminal record.
Application of
these principles to Ms Christensen's case
The Adelaide Casino
contends that it was the nature of the conduct involved in the offence
and the circumstances surrounding the offence Ms Christensen committed
that caused it to reject her application.
As I have indicated
above, I consider that the circumstances of the conviction, including
the underlying conduct, is encompassed within the concept of criminal
record for the purposes of s.3(1) of the HREOC Act.
I am satisfied that
in this case a distinction was made "on the basis of" criminal
record.
10.3 Whether the
distinction, exclusion or preference nullified or impaired equality of
opportunity or treatment in employment or occupation.
For an act or practice
to be discriminatory, the HREOC Act requires that the complainant show
that the distinction, exclusion or preference has had the effect of nullifying
or impairing equality of opportunity or treatment in employment or occupation,
and that the distinction, exclusion or preference was not based on the
inherent requirements of the job. Ms Christensen's application was rejected
at the fourth stage of the interview process due to her criminal record.
She was not able to proceed to the final stage. The exclusion of Ms Christensen
from the final stage of selection on the basis of her criminal record
has had the effect of nullifying equality of opportunity or treatment
in employment.
10.4 Whether the
distinction, exclusion or preference was based on the inherent requirements
of the job
Not all distinctions,
exclusions or preferences are discriminatory within the meaning of the
HREOC Act. Under paragraph (c) of the definition of discrimination in
section 3(1) of the HREOC Act, a respondent does not discriminate on the
basis of criminal record if the distinction, exclusion or preference is
based on the inherent requirements of the job.
Relevant international
jurisprudence
Paragraph (c) reproduces,
in substance, article 1(2) of the Convention Concerning Discrimination
in Respect of Employment and Occupation ("ILO 111"). The HREOC Act
was "introduced to be the vehicle by which Australia's obligations
under .[ILO 111] .are implemented" [6]
. As such, paragraph (c) should be construed in accordance with the construction
given in international law to article 1(2) of ILO 111. [7]
The Governing Body
of the International Labour Organisation (ILO) has created a committee
known as the Committee of Experts on the Application of Conventions and
Recommendations (the "Committee of Experts). It is "orthodox" to rely
upon the expressions of opinion of the Committee of Experts for the purposes
of interpreting ILO 111 . [8]
The meaning of article
1(2) was discussed in Chapter 3 of the Committee of Experts' Special Survey
on Equality in Employment and Occupation 1996:
Under Article 1,
paragraph 2 of Convention No 111, "any distinction, exclusion or preference
in respect of a particular job based on the inherent requirements thereof
shall not be deemed to be discrimination". This exception must be interpreted
restrictively. When qualifications are required for a particular job,
it may not be simple to distinguish between what does and what does
not constitute discrimination. It is often difficult to draw the line
between bona fide requirements for a job and the use of certain criteria
to exclude certain categories of workers. In order to determine the
real scope of this exception, the following two points should be examined:
first, the concept of a "particular job" and, second, the definition
of "inherent requirements" of a particular job.It appears from the
preparatory work for the Convention that the concept of "a particular
job" refers to a specific definable job, function or task. The necessary
qualifications may be defined as those required by the characteristics
of the particular job, in proportion to its inherent requirements. A
qualification may be brought to bear as an inherent requirement without
coming into conflict with the principle of equality of opportunity and
treatment. In no circumstances, however, may the same qualification
be required for an entire sector of activity. Systematic application
of requirements involving one or more grounds of discrimination envisaged
by Convention 111 is inadmissible; careful examination of each individual
case is required.
Similarly, in an ILO
Commission of Inquiry regarding a complaint made against the Federal Republic
of Germany [9],
it was stated:
It needs to be borne
in mind that Article 2, para 1, [of the Convention] is an exception
clause. It should therefore be interpreted strictly, so as not to result
in undue limitation of the protection which the Convention is intended
to provide.
Identifying "inherent
requirements"
The meaning of the
term "inherent requirements" has also been considered by both the Federal
Court and the High Court.
In Qantas Airways
v Christie (1998) 193 CLR 280, the High Court considered the meaning
of the term "inherent requirements of the particular position" in section
170DF(2) of the Industrial Relations Act 1988 (Cth). At 284, Brennan CJ
stated:
The question whether
a requirement is inherent in a position must be answered by reference
not only to the terms of the employment contract but also by reference
to the function which the employee performs as part of the employer's
undertaking and, except where the employer's undertaking is organised
on a basis which impermissibly discriminates against the employee, by
reference to that organisation. In so saying, I should wish to guard
against too final a definition of the means by which the inherent nature
of a requirement is determined. The experience of the courts of this
country in applying anti-discrimination legislation must be built case
by case. A firm jurisprudence will be developed over time; its development
should not be confined by too early a definition of its principles.
At 295, Gaudron J stated:
It is correct to
say, as did Gray J in the Full Court, that an inherent requirement is
something that is essential to the position. And certainly, an employer
cannot create an inherent requirement for the purposes of s 170DF(2)
by stipulating for something that is not essential or, even, by stipulating
for qualifications or skills which are disproportionately high when
related to the work to be done. But if a requirement is, in truth, essential,
it is irrelevant that it derives from the terms of the employment contract
or from the conditions governing the employment relationship.Much of the argument
in this Court was directed to the question whether the expression "inherent
requirements" in s 170DF(2) should be construed broadly or narrowly.
It was put on behalf of Mr Christie that it should be construed narrowly
because it is an exception to or exemption from the prohibition on termination
on discriminatory grounds and a broad construction would be contrary
to the evident purpose of s 170DF, namely, to prevent discriminatory
conduct. I doubt whether s 170DF(2) is an exception or exemption of
the kind which the argument assumes. Rather, I think the better view
is that sub-s (2) is, in truth, part of the explication of what is and
what is not discrimination for the purposes of s 170DF of the Act. However,
that issue need not be explored for there is nothing to suggest that
the expression "inherent requirements" in s 170DF(2) is used other than
in its natural and ordinary meaning. And that meaning directs attention
to the essential features or defining characteristics of the position
in question.
At 316, Gummow J said
that the term "inherent" suggests "an essential element of that spoken
of rather than something incidental or accidental".
Similarly, in X
v The Commonwealth (1999) 200 CLR 177, Gummow and Hayne JJ stated
that the inherent requirements of employment are those which are "characteristic
or essential requirements of the employment as opposed to those requirements
that might be described as peripheral". Their Honours went on to say (at
208):
It follows from both
the reference to inherent requirements and the reference to particular
employment that . . . it is necessary to identify not only the terms
and conditions which stipulate what the employee is to do or be trained
for, but also those terms and conditions which identify the circumstances
in which the particular employment will be carried on. Those circumstances
will often include the place or places at which the employment is to
be performed and may also encompass other considerations. For example,
it may be necessary to consider whether the employee is to work with
others in some particular way. It may also be necessary to consider
the dangers to which the employee may be exposed and the dangers to
which the employee may expose others.
In that same case,
McHugh J stated (at 189-90):
Unless the employer's
undertaking has been organised so as to permit discriminatory conduct,
the terms of the employment contract, the nature of the business and
the manner of its organisation will be determinative of whether a requirement
is inherent in the particular employment. But only those requirements
that are essential in a business sense (including where appropriate
public administration) or in a legal sense can be regarded as inhering
in the particular employment. The Commission must give appropriate recognition
to the business judgment of the employer in organising its undertaking
and in regarding this or that requirement as essential to the particular
employment. Thus, in Christie, Qantas had no obligation to restructure
the roster and bidding system which it utilised for allocating flights
to its pilots in order to accommodate Mr Christie. In the end, however,
it is for the Commission, and not for the employer, to determine whether
or not a requirement is inherent in a particular employment.
It follows from the
cases of X and Christie that identification of inherent
requirements requires one to take into account the surrounding context
of the particular position, employment or job and not merely the physical
or mental capability of the employee to perform a task.
"Based on"
Once the inherent requirements
of the particular job have been identified I must decide whether the relevant
exclusion, distinction or preference is "based on" those inherent requirements.
In Commonwealth
v Human Rights and Equal Opportunity Commission and Others , [10]
Wilcox J interpreted the phrase as follows:
In the present case,
there are policy reasons for requiring a tight correlation between the
inherent requirements of the job and the relevant "distinction", "exclusion"
or "preference". Otherwise, as Mr O'Gorman pointed out, the object of
the legislation would readily be defeated. A major objective of anti-discrimination
legislation is to prevent people being stereo-typed; that is, judged
not according to their individual merits but by reference to a general
or common characteristic of people of their race, gender, age etc, as
the case may be. If the words "based on" are so interpreted that it
is sufficient to find a link between the restriction and the stereo-type,
as distinct from the individual, the legislation will have the effect
of perpetuating the very process it was designed to bring to an end.
The Full Court affirmed
that approach in Bradley's case. In particular, Black CJ discussed the
phrase "based on" as follows (at 235 [35]):
In determining how
the expression "based on" is to be interpreted in the present context,
regard must be had to the objects of the Act. The Act was introduced
to be the vehicle by which Australia's obligations under the Discrimination
(Employment and Occupation) Convention 1958 (ILO Convention No. 111)
are implemented (Explanatory Memorandum to the Human Rights and Equal
Opportunity Bill 1985 (Cth), outline). One of the primary purposes of
the Act consistent with the purpose of the ILO Convention itself - is
the promotion of equal opportunity in employment.
The Chief Justice continued
(at 235 [37]):
It is for this reason
that I would reject the appellant's argument regarding the expression
"based on" in par (c) of the definition of "discrimination". The essence
of that argument is that "based on" requires no more than a logical
link, with the result that the exclusion of a category of persons from
a particular job will not be discriminatory under the Act if a logical
link can be shown between that exclusion and the inherent requirements
of the job. In my view, to interpret par (c) in this way would be to
defeat the Act's object of promoting equality of opportunity in employment
by, in effect, permitting the assessment of persons' suitability for
a particular job on grounds other than their individual merit. The nebulousness
of notions of "logic" in this area makes it an inappropriate test for
discrimination.
He further added (at
237 [40]):
In my view, the definition
adopted by Wilcox J - that is, as requiring a connection that is "tight"
or "close" - sits easily with the language of par (c) and promotes the
objects of the Act by closing a path by which consideration of individual
merit may be avoided.
"Onus"
Finally, I note that
the respondent bears the burden of persuasion on this issue . [11]
Application of
these principles to Ms Christensen's case
The principles drawn
from the cases require three questions to be addressed: What is the particular
job? What are the inherent requirements of that job? Was the exclusion
on the basis of criminal record based on the inherent requirements of
the job?
What is the particular
job?
The "Position Description
and Specification/job Role" for the position of bar attendant states the
primary focus of the role is:
To deliver high quality
customer service to Adelaide Casino customers through the use of excellent
customer service ethics and the provision of efficient and timely food
and beverage services.
The Adelaide Casino's
letter to the Commission of 19 February 2001 in response to the complaint
described the overall duties of a bar attendant in similar terms.
"Key accountabilities"
of the position are listed in the Position Description to include:
- exceed customer
expectations in providing prompt and courteous food and beverage services - represent Adelaide
Casino in a positive, professional and friendly manner to customers
and staff - provide assistance
and up to date information to customers on Adelaide casino facilities
and promotional packages - ensure the provision
of service standards that develop and encourage repeat business - efficiently respond
to customer complaints.
The key accountabilities
of the position are also stated to include a variety of tasks associated
with the provision of a food and beverage service.
The Casino noted that
particular aspects of bar attendant duties are:
- Cash handling duties,
including collecting money from customers, transporting money from register/till
areas for lock up. Counting the cash float. - Maintaining alcoholic
beverage stocks. Transporting stocks from storage areas to bars.
I am of the view that
the position of bar attendant entails the provision of high quality customer
service to customers of the Casino including the provision of a food and
beverage service and the handling and maintenance of money and beverage
stocks in association with that service.
What are the inherent
requirements of that job?
In its letter to the
Commission of 19 February 2001 the Casino stated that, "It is not necessarily
an inherent requirement for the absence of a criminal record but rather
the details of Ms Christensen's charge presented particular concern to
both Management and Security representatives."
It stated that Casino
Act 1997 indicated that the Casino as licensee must not permit a person
to occupy or work in a position of responsibility unless the person is
approved as a suitable person to work in a position of responsibility
of the relevant class.
It stated trustworthiness
and good character are inherent requirements of the position.
It is my view that
having regard to regard to the tasks to be performed in the position of
bar attendant, trustworthiness and good character are inherent requirements
of that job.
Was the exclusion
on the basis of criminal record based on the inherent requirements of
the job?
The Adelaide Casino
has formed the view that, having regard to the circumstances surrounding
Ms Christensen's conviction, she is not a person who is trustworthy and
of good character. The relevant submissions made on behalf of the Casino
stated:
... our client disagrees
with the view that her conduct (again, the preliminary finding refers
to the larceny offence rather than the conduct, which our client considered,
and still considers, to be the relevant matter) did not indicate that
the complainant was not trustworthy. The fact is that Ms Christensen
acknowledged that she had stolen. Trust is a matter difficult to gain,
and readily lost. The circumstances of her acknowledgement of stealing
were such that our client was not prepared to place trust in her. Our
client does not consider that it has to wait until it catches someone
stealing from it before it can form a legitimate view that an individual
is not trustworthy. Nor did our client consider that the circumstances
disclosed by Ms Christensen indicated that she was of good character.What was relevant
was that Ms Christensen has demonstrated that she was prepared to be
dishonest and untrustworthy.
In accordance with
Bradley's case, discussed above, the issue for consideration is
whether there is a tight or close connection between the inherent requirements
of the job and the relevant distinction, exclusion or preference. That
is, is there a tight or close connection between the requirement that
the holder of the position of bar attendant be trustworthy and of good
character and the exclusion, distinction or preference that I have found
was applied to the complainant on the basis of her criminal record?
In my view the connection
was not sufficiently close. There was information available to the respondent
regarding Ms Christensen's trustworthiness and ability to perform the
inherent requirements of the job. Ms Christensen's conviction occurred
some seven or eight years before she made her application for employment
with Adelaide Casino. She was about 15 years of age at the time of her
conviction. I note there were factors the Casino didn't take into account
that would seem to me far more relevant to, and probative of, the question
of whether she was trustworthy and of good character, than her criminal
record. Those factors include the following: subsequent to the conviction
she has worked in positions of trust in the hospitality industry; she
states she has experience with bar management and has handled large amounts
of money in previous employment; her previous position was as a bar manager/waitress;
and, her application for employment noted that she was a 'responsible
person' for the purposes of the Liquor Licensing Act 1997 (SA).
There has been no suggestion that she has been anything but trustworthy
and honest in these positions and, I note that in her application she
has provided the names of three character references, two of whom are
bar managers. In addition, she informed the Adelaide Casino of the offence
without hesitation.
I am of the view that
in the circumstances of this complaint the connection between the rejection
of Ms Christensen's application on the basis of her criminal record and
the inherent requirements of trustworthiness and good character is not
tight or close and therefore the test in Bradley's case is not satisfied.
11.
Conclusion
For the reasons set
out above, I am therefore of the view that Ms Christensen has been discriminated
against on the basis of her criminal record.
12.
Recommendation
Having found that Ms
Christensen was discriminated against, I recommend pursuant to section
35 of the HREOC Act that the respondent apologise to Ms Christensen for
having rejected her application for employment as a bar attendant because
of her juvenile conviction and not further exclude her from applying for
employment because of that conviction.
13. Actions
taken by the respondent as a result of the findings and recommendations
Under s.35(2)(e) of
the HREOC Act the Commission is required to state in its report to the
Attorney-General whether the respondent has taken or is taking any action
as a result of its findings and recommendations.
On 22 March 2002 the
Commission wrote to the respondent to seek its advice at to what action
it had taken or proposed to take as a result of the findings and recommendations.
On 11 April 2002 Minter Ellison, Lawyers, the solicitors for the respondent
replied:
Thank you for your
letter dated 22 March 2002.The Casino has considered
the findings of the President in relation to the complaint of Ms Christensen.With great respect,
the Casino maintains its stance that there was no inappropriate discrimination
in the Casino's treatment of Ms Christensen.The Casino maintains
its stance that it sees nothing inappropriate with expecting employees
to be trustworthy and of good character. The Casino regards that as
consistent with its statutory obligations.While the Casino
agrees that trustworthiness and good character are inherent requirements
of the position of Bar Attendant, the Casino's view is that the circumstances
disclosed by Ms Christensen were inconsistent with those inherent requirements.In that light the
Casino maintains the view set out in our letter of 15 November 2001.
Accordingly, it does not propose taking any action as a result of the
findings and recommendations of the President.
1. In
Commonwealth of Australia v Human Rights & Equal Opportunity Commission
and Hamilton (2000) 180 ALR 635 (Hamilton's case) Katz J at 638 [9] said
"As contemplated by subpar (b)(ii) of the definition of "discrimination",
regulations have been made (under s 50 of the Act) declaring certain distinctions,
exclusions or preferences that have the effect of nullifying or impairing
equality of opportunity or treatment in employment or occupation, additional
to the distinctions, exclusions or preferences set out in par (a) of the
definition, to constitute "discrimination" for the purposes of the Act:
see the Human Rights and Equal Opportunity Commission Regulations (Cth)
("the Regulations"). Among such distinctions, exclusions or preferences
are (and have been since 1 January 1990: see reg 2 of the Regulations)
those "made ... on the ground of ... age": see subpar 4(a)(i) of the Regulations.
(It is not clear to me why that provision uses the word "ground" instead
of the word "basis", the latter word being the one which is used at the
equivalent point in par (a) of the definition of "discrimination" in subs
3(1) of the Act. For present purposes, I will proceed on the basis (or
ground (!)) that the words were intended to be interchangeable."
2. Section
30(1) provides:
"(1) In this Division-"act" includes an act done-
(a) by or on behalf
of a State or an authority of a State;
(b) under a law of a State;
(c) wholly within a State; or
(d) partly within a State, to the extent to which the act was done within
a State;"practice" includes a practice engaged in-(a) by or on behalf
of a State or an authority of a State;
(b) under a law of a State;
(c) wholly within a State; or
(d) partly within a State, to the extent to which the practice was or
is engaged in within a State."
3. Section
9(1) provides:
9(1) It is unlawful for a person to do any act involving a distinction,
exclusion, restriction or preference based on race, colour, descent or
national or ethnic origin which has the purpose or effect of nullifying
or impairing the recognition, enjoyment or exercise, on an equal footing,
of any human right or fundamental freedom in the political, economic,
social, cultural or any other field of public life.
4. That
construction is consistent with the recommendations made by the Australian
Law Reform Commission ("the ALRC") in Spent Convictions Report, 1987,
No 37 AGPS p.53 [78]. In that report the ALRC recommended that the Regulations
cover "discrimination" on the ground of criminal record, or of facts relating
to a conviction. The Explanatory Statement accompanying the Regulations
makes clear that the Regulations were intended to implement that recommendation.
See also Woodward Stores (British Columbia) Ltd v McCartney (1983) 4 CHRR
D/1325 at D/1327 where British Columbia legislation dealing with criminal
record discrimination was given a similarly wide construction, pursuant
to which "charge" was taken to mean "the things specified in the information
and the circumstances surrounding them" rather than simply "the nature
of the offence charged".
5. (1999)
95 FCR 218 at 235 [36]
7. Hamilton's
case at 642 [31] and following
9. (1987)
70 ILO Official Bulletin, Ser B, Supp. 1
11.
Hamilton's Case at 652 [61]
Last
updated 25 September 2002.