President of the Australian Human Rights Commission Catherine Branson QC has found that the Rail Corporation of NSW (RailCorp) discriminated against a job applicant when it decided not to give him a position because of his criminal record.
The Report of the complaint, Mr CG v State of NSW (RailCorp NSW), was tabled in federal Parliament today.
Mr CG had been convicted for a middle range drink driving offence in 2001. He was also convicted in 2008 for a low range drink driving offence.
However when Mr CG applied for a position as a Market Analyst with Railcorp in 2009 he was advised he was not offered the position on the basis of his criminal record, despite meeting all the selection criteria and being the selection panel’s preferred candidate.
RailCorp denies that the decision not to offer Mr CG employment as a Market Analyst because of his criminal record constitutes discrimination in employment.
RailCorp says that Mr CG’s criminal record made him unable to perform the inherent requirements of the Market Analyst job.
However Ms Branson found that Mr CG was not excluded from the Market Analyst position due to the inherent requirements of that job.
Ms Branson considered that during Mr CG’s previous eight years of employment with RailCorp there had been no suggestion he had behaved in a way inconsistent with the inherent requirements of the Market Analyst position.
She found that Mr CG’s criminal offences had no connection with his employment, and had not occurred during work hours. She also found that he had not been driving as part of any work activity at the time.
Ms Branson found that driving was not part of his employment with RailCorp and in fact he was not required to provide any rail transport services in which safety was a critical concern.
The Commission recommended that RailCorp pay Mr CG $7, 500 in compensation for hurt, humiliation and distress.
The Commission also recommended that RailCorp ensure that its human resources and management staff involved in employment decisions undertake anti-discrimination training to prevent discrimination on the basis of criminal record occurring again.
RailCorp did not accept the Commission’s findings and declined to pay compensation to Mr CG.
RailCorp has said however that it will review its recruitment procedures with a view to ensuring that persons are not inappropriately excluded from employment with RailCorp on the basis of criminal record.
As this decision can be reviewed under the Administrative Decisions (Judicial Review) Act, this is the only statement the Commission will be making on this matter.
Mr CG v State of NSW (RailCorp NSW), is online at http://www.humanrights.gov.au/legal/humanrightsreports/AusHRC48.html
Media contact: Louise McDermott (02) 9284 9851 or 0419 258 597
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