AusHRC 48: Mr CG v State of New South Wales (Rail Corporation New South Wales)
2012
Mr CG v State of New South Wales
(Rail Corporation New South Wales)
Report into discrimination in employment on the basis of criminal record
[2012] AusHRC 48
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January 2012
The Hon Nicola Roxon MP
Attorney-General
Parliament
House
Canberra ACT 2600
Dear Attorney
Pursuant to s 31(b)(ii) of the Australian Human Rights Commission Act
1986 (Cth), I attach my report of an inquiry into the complaint made by Mr
CG of discrimination in employment on the basis of criminal record by the Rail
Corporation New South Wales.
I have found that the act complained of constitutes discrimination in
employment on the basis of criminal record.
By letter dated 16 August 2011 RailCorp provided the following response to my
notice of recommendations:
-
RailCorp, with respect, maintains its view that its decision not to offer Mr
CG employment was not conduct that amounted to discrimination for the purposes
of the Australian Human Rights Commission Act 1986. -
In these circumstances, and also having regard to Mr CG’s lack of
candour during the employment application process, RailCorp declines to pay
compensation to Mr CG. - Notwithstanding the above, and as part of RailCorp’s ongoing and
demonstrated commitment to non discrimination and equal employment opportunity,
RailCorp will be undertaking a review of its recruitment procedures with a view
to ensuring that persons are not inappropriately excluded from employment with
RailCorp on the basis of criminal record.
Yours sincerely
Catherine Branson
President
Australian Human Rights Commission
Contents
- 1. Introduction
- 2. Summary
- 3. Outline of complaint
- 4. Conciliation
- 5. Relevant legal framework
- 6. Findings
- 7. Conclusion
- 8. Failure to disclose criminal record
- 9. Power to make recommendations
- 10. RailCorp’s response to the Recommendations
1. Introduction
-
This is a report setting out the findings of the Australian Human Rights
Commission following an inquiry into a complaint of discrimination in employment
on the basis of criminal record made to the Commission by Mr CG. The complaint
was made against the State of New South Wales, Rail Corporation New South Wales
(RailCorp). -
As a result of the inquiry, the Commission has found that Mr CG was
discriminated against on the basis of his criminal record. -
This inquiry has been undertaken pursuant to s 31(b) of the Australian
Human Rights Commission Act 1986 (Cth) (the AHRC Act). - I have directed that the complainant’s identity be protected in
accordance with s 14(2) of the AHRC Act.
2. Summary
-
Mr CG was convicted of driving with a middle range of prohibited consumption
of alcohol in 2001 and driving with a low range of prohibited consumption of
alcohol in 2008. Around June 2009 Mr CG applied for a position as Market Analyst
with RailCorp. Although Mr CG met all the selection criteria and was the
selection panel’s preferred candidate he was advised that he was not
offered employment on the basis of his criminal record. -
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 submits that Mr CG, in light of his criminal record, is unable to
perform the inherent requirements of the Market Analyst job. After carefully
considering all of the material available to me, I am not satisfied that the
exclusion of Mr CG from the job of Market Analyst was based on the inherent
requirements of that job. In reaching this conclusion I found the following
factors persuasive:-
It is not suggested that during Mr CG’s 8 years of previous employment
at RailCorp he behaved in a way that was inconsistent with the inherent
requirements of the Market Analyst job. -
Mr CG’s criminal offences had no connection with his employment; they
did not occur during work hours and he was not driving as part of any work
activity at the time. -
Mr CG is not required to drive as part of his employment with RailCorp;
indeed, it appears that he is not required to engage in any safety critical
activity related to the provision of rail transport services.
-
- I have recommended that RailCorp pay Mr CG $7 500 in compensation for hurt,
humiliation and distress.
3. Outline
of complaint
-
Mr CG made his complaint to the Commission on 21 December 2009. On 30 March
2010 RailCorp provided a detailed response to Mr CG’s complaint. -
A directions hearing was held on 21 September 2010 at which I requested
further information from RailCorp. RailCorp provided further information by way
of submissions on 20 October 2010. -
On 28 January 2011, having formed the tentative view that the act relied on
by Mr CG constituted discrimination, the Commission provided RailCorp with a
further opportunity to make submissions in relation to the alleged act of
discrimination (s 27 and s 33 of the AHRC Act). On 4 March 2011 RailCorp made
further written submissions to the Commission. -
Mr CG provided a written submission to the Commission on 8 May 2011.
-
I consider the following statements about the circumstances which have given
rise to the complaint to be uncontentious:-
Mr CG was employed by RailCorp from 1999-2007 in various roles;
-
from September 2003 to April 2005 Mr CG worked in the Market Analyst role at
RailCorp; -
in or about June 2009 Mr CG applied for a job as a Market Analyst with
RailCorp; -
Mr CG met all essential selection criteria and was the selection
panel’s recommended candidate for the Market Analyst job; -
during the recruitment process, Mr CG was asked by RailCorp to provide
comments about his criminal record; -
Mr CG was convicted of driving with a middle range of prohibited consumption
of alcohol in 2001 and driving with a low range of prohibited consumption of
alcohol in 2008; and -
on 10 September 2009 RailCorp sent Mr CG an e-mail advising that he was not
selected for employment as a Market Analyst with RailCorp because of his
criminal record.
-
- Mr CG alleges that RailCorp’s failure to offer him employment as a
Market Analyst because of his criminal record constitutes discrimination in
employment on the basis of his criminal record. - RailCorp accepts that Mr CG was not offered employment because of his
criminal record. RailCorp disputes, however, that its failure to employ him
amounts to discrimination. It contends that Mr CG, in light of his criminal
record, is unable to perform the inherent requirements of the Market Analyst
job. - RailCorp describes the inherent requirements of the Market Analyst job as
follows:- compliance with its Drug and Alcohol Policy;
- upholding its safety first values; and
- perform the duties faithfully, diligently, carefully, honestly and with the
exercise of skill and good judgment.
4. Conciliation
- The Commission has endeavoured without success to conciliate a settlement of
the complaint.
5. Relevant
legal framework
-
Part II, Division 4 of the AHRC Act confers functions on the Commission in
relation to equal opportunity in employment in pursuance of Australia’s
international obligations under the Discrimination (Employment and Occupation)
Convention 1958 (ILO 111). -
ILO 111 prohibits discrimination in employment on the grounds of race,
colour, sex, religion, political opinion, national extraction or social origin
and other grounds specified by ratifying States. - Section 3(1) of the AHRC Act defines discrimination for the purposes of
s 31(b) as:(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 AHRC 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(d) in connection with employment as a member of the staff of an institution
that is conducted in accordance with the doctrines, tenets, beliefs or teachings
of a particular religion or creed, being a distinction, exclusion or preference
made in good faith in order to avoid injury to the religious susceptibilities of
adherents of that religion or that creed. -
Australia has declared criminal record as a ground of discrimination for the
purposes of the AHRC Act.[1] - Section 31(b) of the AHRC Act confers on the Commission the following
function:(b) to inquire into any act or practice, including any
systemic practice, that may constitute discrimination and:(i) 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; and(ii) where the Commission is of the opinion that the act or practice
constitutes discrimination, and the Commission has not considered it appropriate
to endeavour to effect a settlement of the matters that gave rise to the inquiry
or has endeavoured without success to effect such a settlement--to report to the
Minister in relation to the inquiry;...
- Section 8(6) of the AHRC Act requires that the function of the Commission
under s 31(b) be performed by the President.
6. Findings
1. Relevant
questions to be considered
-
In deciding whether there has been discrimination within the terms of s
31(b) of the AHRC Act, I am required to consider the following questions:-
whether there was an act or practice within the meaning of s 30(1) of the
AHRC Act; -
whether that act or practice involved a distinction, exclusion or preference
that was made on the basis of the complainant’s criminal record; -
whether that distinction, exclusion or preference had the effect of
nullifying or impairing equality of opportunity or treatment in employment or
occupation; and -
whether that distinction, exclusion or preference was based on the inherent
requirements of the job.
-
- I consider that the failure to offer Mr CG employment was an
‘act’ within the meaning of s 30(1) of the AHRC Act. I also consider
that this act involved an exclusion that was made on the basis of Mr CG’s
criminal record and that the exclusion had the effect of nullifying or impairing
equality of opportunity or treatment in employment. RailCorp does not dispute
these findings. - The central dispute between the parties is whether that exclusion was based
on the inherent requirements of the job in question.
2. Relevant
legal principles
(i) International
jurisprudence
-
As outlined earlier, a distinction, exclusion or preference in respect of a
particular job will not amount to ‘discrimination’ under s 3(1) of
the AHRC Act if the distinction etc is based on the inherent requirements of the
job. This exception is based, in substance, on article 1(2) of ILO 111. The AHRC
Act was ‘introduced to be the vehicle by which Australia's obligations
under [ILO 111] are
implemented’.[2] For this reason
paragraph 3(1)(c) should be construed in accordance with the construction given
in international law to article 1(2) of ILO
111.[3] -
The Governing Body of the International Labour Organisation (ILO) 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.[4] - 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: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, 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.[5]
(b) Identifying
inherent requirements
- In Qantas Airways v Christie,[6] the High Court considered the meaning of the term ‘inherent requirements
of the particular position’ in s 170DF(2) of the Industrial Relations Act
1988 (Cth). 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.[7] - In the same case 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.[8] -
Justice Gummow noted that the term ‘inherent’ suggests ‘an
essential element of that spoken of rather than something incidental or
accidental’.[9] - Similarly, in X v The
Commonwealth,[10] 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’.[11]
(c) ‘Based
on’
- In Commonwealth v Human Rights and Equal Opportunity Commission and
Others,[12] Wilcox J interpreted the
phrase ‘based on’ 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.[13] - The Full Court affirmed that approach in Commonwealth v Bradley [14] (Bradley). In particular,
Black CJ discussed the phrase ‘based on’ as follows:Respect for human rights and the ideal of equality –
including equality of opportunity in employment – requires that every
person be treated according to his or her individual merit and not by reference
to stereotypes ascribed by virtue of membership of a particular group, whether
that group be one of gender, race, nationality or age. These considerations must
be reflected in any construction of the definition of
‘discrimination’ presently under consideration because, if they are
not, and a construction is adopted that enables the ascription of negative
stereotypes or the avoidance of individual assessment, the essential object of
the Act to promote equality of opportunity in employment will be
frustrated.[15] - The Chief Justice then held that there must be more than a
‘logical’ link between the inherent requirement of the position and
the exclusion of the applicant. Rather, his Honour held that there must be a
‘tight’ or ‘close’ connection stating: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.[16] - The Chief Justice further observed:
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.[17] - I also note the decision of the Northern Territory Anti-Discrimination
Commission in Wall v Northern Territory
Police.[18] Northern Territory
legislation prohibits discrimination on the basis of ‘irrelevant criminal
record’. In that decision the complainant, Mr Wall, was convicted for
theft when he was 19 years old and sentenced to a six month good behaviour bond.
Twenty-five years later, he applied for a position as a police officer with the
Northern Territory Police. His application was rejected. One of the arguments
raised by the Northern Territory Police was that Mr Wall was unable to meet a
‘genuine occupational qualification’ of the position that all police
recruits maintain the integrity of the Northern Territory Police by being free
of any adult criminal conviction. The Anti-Discrimination Tribunal rejected this
submission, stating:The burden is on the employer to identify the
inherent requirements of the particular position and consider their
application to the specific employee before the inherent requirements
exception may be invoked. There must be a ‘tight correlation’
between the inherent requirements of the particular job and an
individual’s criminal record and there must be more than a ‘logical
link’ between the job and a criminal record.I am not satisfied however that the occupational qualification required of
recruits by police is sufficiently ‘genuine’ to qualify as an
exemption under s 35. This is because the Respondent has not demonstrated a
‘tight correlation’ between the purported inherent integrity
requirement and the Complainant’s spent criminal
record.[19] (original emphasis,
references omitted) - It further observed:
It is not possible to adequately assess the
integrity and honesty, or lack thereof, of a candidate without considering a
whole range of factors and characteristics ... – not just criminal history
(spent or otherwise).[20]
(d) Proof
-
The authorities suggest that ordinarily the concept of ‘onus of
proof’ is not directly applicable in administrative proceedings (see
particularly McDonald v Director-General of Social Security (1984) 6 ALD
6). The position will be otherwise where the legislation being applied by the
administrator specifically places an onus on one or other of the parties to
establish facts upon which the decision-maker's decision depends. -
Further, in Minister for Immigration and Ethnic Affairs v Wu Shan Liang
and Others (1996) 136 ALR 481, Brennan CJ, Toohey, McHugh and Gummow JJ
considered that the use of terms such as ‘balance of probabilities’
and ‘evidence’ provides little assistance in the context of
administrative decision-making and could be misleading. - Nonetheless, in view of the agreed facts in this matter, I can only find in
favour of RailCorp if I am satisfied that the exclusion of Mr CG was based on
the inherent requirements of the
job[21] and that there is a
sufficiently tight connection between the inherent requirements of the job and
the exclusion of Mr CG in the circumstances of this case.
(e) Inherent
requirements
- RailCorp submits that the inherent requirements of the Market Analyst
position that Mr CG applied for include that:- the position holder comply with RailCorp’s Drug and Alcohol Policy;
- the position holder uphold RailCorp’s safety first values;
and - RailCorp have trust and confidence in the position holder to discharge all
of his or her duties faithfully, diligently, carefully, honestly and with the
exercise of skill and good judgment – including that RailCorp has trust
and confidence that the position holder is willing and able to take personal
responsibility for their safe behaviour and that RailCorp has trust and
confidence that the position holder will comply with RailCorp’s Drug &
Alcohol policy and be drug and alcohol free at
work.[22]
- RailCorp, which is constituted under s 4 of the Transport Administration
Act 1988 (NSW), places reliance on s 5 of that Act which states that its
principal objectives are:a) to deliver safe and reliable railway
passenger services in New South Wales in an efficient, effective and financially
responsible manner; andb) to ensure that the part of the NSW rail network vested in or owned by
RailCorp enables safe and reliable railway passenger and freight services to be
provided in an efficient, effective and financially responsible manner. - RailCorp submits that:
RailCorp’s safety first obligations
are also enshrined in railway specific safety legislation. For example, under
the Rail Safety Act 2008 (NSW), and as a condition of our accreditation
as a rail operator in New South Wales, RailCorp is required to develop,
implement, comply with, and periodically review, a comprehensive safety
management system that deals with all facets of railway
operations.[23] -
RailCorp places reliance on the fact that, after the 2005 Waterfall and
Glenbrook train accidents, the Waterfall Special Commission of Inquiry (the
Commission of Inquiry) found that RailCorp had a weak and reactive safety
culture. Since that inquiry, as RailCorp submits, it has undergone a major
transformation of its entire culture so as to prioritise the value of safety. - RailCorp refers to the following statements in their Safety Strategic Plan
dated August 2007 as evidence of its safety first values:- Safety has already been elevated as the top priority at all levels of
RailCorp.[24] - In a truly successful safety culture every employee, contractor and
associate of RailCorp will be a ‘safety ambassador’ and an example
to industry and the travelling public at large. Our safety culture will be based
on the willing acceptance by all RailCorp employees of personal responsibility
for safe behaviours and
practices.[25] - We will work with and involve all our employees in creating a strong, risk
aware safety culture, from the board to the
workplace.[26] - As a fundamental corporate value we aim to put safety first in everything we
do.[27]
- Safety has already been elevated as the top priority at all levels of
- Based on the above information, I accept that safety is a key priority of
RailCorp and that significant effort has been made to create a culture of safety
throughout the organisation. I also accept that to successfully implement a
safety first culture all employees must take personal responsibility for safe
behaviour and practices in their work. I am therefore willing to proceed on the
basis that a requirement that a RailCorp employee be willing and able to take
personal responsibility for their safe behaviour in their work is an inherent
requirement of all jobs at RailCorp. - RailCorp submits that its Drug and Alcohol Policy is a product of its
commitment to building a safer rail network and the broader safety first
culture. The Drug and Alcohol Policy is contained in RailCorp’s Code of
Conduct. - RailCorp’s Drug and Alcohol Policy stipulates
that:[28]RailCorp is a
drug and alcohol free workplace. All employees, consultants and contractors are
required to be drug and alcohol free whilst at work. -
I accept that it is an inherent requirement of the Market Analyst job that
the job holder comply with the Drug and Alcohol Policy and be drug and alcohol
free whilst at work. - I further accept that an inherent requirement of the Market Analyst job is
to perform the duties of the job faithfully, diligently, carefully, honestly and
with the exercise of skill and good judgment. I am also willing to accept that
it is necessary for the employer reasonably to be able to have trust and
confidence in the person holding the position.
(f) Was
the exclusion based on the inherent requirements of the job?
- RailCorp took the view that, having regard to the nature of Mr CG’s
convictions, he was not able to meet the inherent requirements of the Market
Analyst job. The submission made by RailCorp
states:[29]Mr
CG’s two convictions for drink driving make him an unsuitable applicant
for employment with RailCorp for two reasons. Firstly, they call into question
whether he will be able to comply with RailCorp’s Drug & Alcohol
Policy. Secondly, and most importantly, the behaviour underlying the convictions
manifests a disregard for accepted and legislated community safety standards
that is incompatible with RailCorp’s safety first ethos. -
In accordance with Bradley, the issue for consideration is whether
there is a tight or close connection between the inherent requirements of the
job of Market Analyst as set out above and the exclusion of Mr CG from
employment. -
When giving RailCorp the opportunity to make submissions, I advised it of my
tentative view that RailCorp had failed to demonstrate a sufficiently tight
correlation between the decision not to offer Mr CG employment and the inherent
requirements of the job of Market Analyst. - In response RailCorp submited:
RailCorp respectfully disagrees
with this conclusion. We further say the opportunity provided here to respond to
the President’s view is in part illusory given the limited reasons
provided by the President to justify the finding that there was an
insufficiently tight correlation and the lack of any exposition around the issue
of what would constitute a sufficiently tight correlation.In this regard, and centrally, it is not clear to RailCorp whether the
President:(a) accepts that there is a connection between the criminal convictions and
the inherent requirements of the position, but considers there to be an
insufficiently close connection; or whether, alternatively,(b) is of the view that there is no connection between the criminal
convictions and the inherent requirements of the
position.[30] - The question before me is not whether there is a connection between the
criminal convictions and the inherent requirements of the position. The proper
question before me is whether I am satisfied that there is a tight or close
connection between the inherent requirements of the job of Market Analyst and
the exclusion of Mr CG from employment.
- RailCorp further submitted:
it is not a matter for the President
to substitute her view on whether RailCorp should have trust and
confidence in Mr CG. The question is simply whether, as an objective matter,
RailCorp does, or does not, have the requisite trust and confidence. In this
regard we say that RailCorp, in both its words and deeds, has demonstrated that
it does not have trust and confidence in Mr
CG.[31] -
As my conclusions regarding the inherent requirements of the position
reveal, I reject this submission. It would plainly be inconsistent with the
declaration of criminal record as a ground of discrimination for the purposes of
the AHRC Act for employers generally to be able to demonstrate that they lack
requisite trust and confidence in potential employees simply because they have
criminal records. While the absence of a criminal record might be an inherent
requirement of some positions with a limited class of employers, I am not
satisfied that this position of Market Analyst is such a position or that
RailCorp is an employer of this class. - In its submissions, RailCorp raised an additional factor that it asserts I
should consider when assessing whether there is a tight or close
connection:In our view, the President fails, in addressing the
question of sufficiency of connection, to consider the overarching context in
which RailCorp made its decision not to offer Mr CG employment. As referred to
in paragraphs 22, 25, 27 of our First Submission, Mr CG was refused employment
after a competitive selection process in which there was available to RailCorp
another qualified and recommended applicant that did not have criminal
convictions. This is a factor to which the President rightly and reasonably
should have regard in assessing what would constitute a sufficiently close
correlation between the convictions and the inherent
requirements.[32] -
I acknowledge that the decision to refuse Mr CG employment was made after a
competitive selection process undertaken by RailCorp. However, I am of the view
that the competitive selection process is not itself directly relevant to
whether there is a tight or close connection between the inherent requirements
of the job and the exclusion of Mr CG from employment. Mr CG’s ability to
fulfil the inherent requirements of the Market Analyst job ought to have been
assessed according to his individlual merit. Accordingly, the presence of another
qualified applicant does not bear on an assessment of Mr CG’s individual
ability to perform the inherent requirements of the position. - RailCorp relied solely on Mr CG’s criminal record in concluding that
he was an unsuitable applicant for employment. It identified no other reason for
concluding that it was open to question whether, were he to be employed by
RailCorp, he would comply with its Drug & Alcohol policy and uphold its
safety first values. It is therefore necessary to examine carefully the nature
of that record, the circumstances surrounding the events which gave rise to that
record and the nature of the job for which Mr CG applied. It is also appropriate
to give consideration to Mr CG’s previous employment history with
RailCorp. This is because the object of Part II, Division 4 of the AHRC Act is
to ensure that, in employment, individuals are judged on their individual merits
rather than by reference to stereotypical assumptions based on their criminal
records.
(i) Nature of
criminal record
-
Mr CG’s criminal record indicates that he has been convicted of the
following offences:-
26 March 2008 Driving with low range of prohibited consumption of alcohol-
fined $500 and disqualified from driving for 3 months. - 10 October 2001 Driving with middle range of prohibited consumption of
alcohol- fined $600 and disqualified from driving for 9 months.
-
- In relation to his criminal record, RailCorp state as
follows:In deciding not to offer Mr CG employment, RailCorp had
particular regard to the fact that Mr CG had two DUI offences and the most
recent of these offences occurred only about 15 months prior to his application
for the Market Analyst position. RailCorp also had regard to the fact that Mr CG
was a previous RailCorp employee and, as such, would have been schooled in
RailCorp’s ‘Safety First’ ideal. [33]
(ii) Circumstances
surrounding offending
-
In relation to the 2001 offence Mr CG states that he was at his
friend’s birthday party and that he thought he was within the alcohol
limit because he had one drink every hour. After the party he had to drive some
of his friends home when he was pulled over by a RBT and informed he was over
the limit. Mr CG states that he thought he was truly within his range. -
In relation to the 2008 offence Mr CG states that since his 2001 offence he
tends to always watch his alcohol intake. He states he was caught driving on a
low range of alcohol while driving his girlfriend home. Mr CG states that as a
result of these incidents he tends not to drink when he goes out. - I particularly note that neither of these offences had any apparent
connection with Mr CG’s employment. They occurred outside of work hours
and away from his workplace.
(iii) Nature of
Market Analyst job
- RailCorp has provided the position description document for the position of
Market Analyst. The document summarises the role of a Market Analyst as
follows:The Market Analyst provides business and market analysis
service [sic] for CountryLink stakeholders and managers in order to assist them
with their business forward planning requirements & management
responsibilities.The role encompasses combining market intelligence with business intelligence
to provide meaningful insights to stakeholders about the current and likely
future performance of the business based on relevant scenarios. - From the position description document it does not appear that a Market
Analyst will engage in safety critical work or be involved with the provision of
rail services. It does not appear that the position holder would be required to
drive a vehicle as part of the Market Analyst role.
(iv) Previous
employment with RailCorp
-
Mr CG was employed by RailCorp from 1999-2007 in various roles. From
September 2003 to April 2005 Mr CG worked in the Market Analyst role at
RailCorp. - RailCorp makes the following submissions to relation to Mr CG’s
previous employment by
RailCorp.[34]RailCorp
does not keep records of when individual employees are subjected to random
alcohol tests and we are unable to ascertain whether Mr CG was ever tested while
working for RailCorp. In any event, merely because Mr CG was not found to have
breached the D & A Policy while employed by RailCorp does not mean either
that a) he did not breach the policy while so employed or b) that he would not
breach the policy if re-employed.The fact that an employee has not had any adverse safety incidents or has not
been found to have breached the D & A Policy is not necessarily a reliable
indicator of future conduct. For example, and had the question been asked in
February 2008, most observers might have said that given the 6 ½ years
since Mr CG’s last drink driving conviction he was unlikely to re-offend.
He did of course re-offend in March 2008.RailCorp was strongly criticised for its reactive safety culture by Waterfall
Commissioner McInerney. In response, RailCorp has put in place measures designed
to effect an entire transformation of this culture.That Mr CG previously discharged the duties of other positions in RailCorp
without reported safety incidents does not, in RailCorp’s submission, lead
to a conclusion that he can be trusted to uphold and be an agent of
RailCorp’s new ‘Safety First’ culture. In forming a view about
whether Mr CG can be so trusted we say that we are entitled to take into account
Mr CG’s disregard for legislated safety standards, as manifested in his
criminal behaviour. - In summary, RailCorp is of the view that Mr CG’s compliance with the
Drug and Alcohol Policy when he was previously employed by RailCorp cannot be
definitively established and, even if it can be, RailCorp does not accord any
weight to his previous compliance.
7. Conclusion
-
I commend RailCorp for its commitment to implementing the recommendations of
the Commission of Inquiry Report. It would appear that following the tragic
Glenbrook and Waterfall rail accidents RailCorp has undergone a significant
transformation to create a culture of safety throughout the organisation in
order to deliver safe and reliable railway passenger services. - In its submissions RailCorp argued:
The President gives
insufficient weight to the nature of criminal offending at paragraphs 53 to 55
and at paragraph 66 of the Tentative View. We suggest the President’s
comments might be seen as downplaying or minimising the seriousness of Mr
CG’s criminal conduct. This would be unfortunate given that there remains
a view in some parts of the community that drink driving is only really criminal
conduct if you are caught.The President also downplays, in our view, the connection between the
criminal offending and the inherent requirements. In this regard, the President
particularly notes that the criminal offending occurred outside of the
workplace. RailCorp says that this is not to the point and that RailCorp is
entitled to, and does consider, the criminal conduct to be a cogent
manifestation of Mr CG’s attitude to mandated alcohol limits and
legislated safety standards.[35] -
I am conscious of the serious nature of drink-driving and the devastating
effects this behaviour can have on the community. However, the purpose of this
inquiry is not to assess the gravity of the offences of which Mr CG has been
convicted. The purpose of this inquiry is to determine whether Mr CG was
discriminated against in employment on the basis of his criminal record. -
As noted above, RailCorp has submitted that Mr CG’s exclusion from
employment was based on his inability to perform the inherent requirements of
the job for which he applied. -
My conclusions with respect to the inherent requirements of the position for
which Mr CG applied are set out in [48], [51] and [52] above I am not willing to
conclude that the mere fact of having two convictions within the preceding
period of eight years is necessarily inconsistent with these inherent
requirements. -
I note that Mr CG was previously employed by RailCorp for eight years.
Nothing before me suggests that during this period Mr CG behaved in a way that
was inconsistent with RailCorp’s Drug and Alcohol Policy or the safety
first values. Nothing before me suggests that Mr CG has ever been under the
influence of alcohol whilst in employment. Furthermore, nothing before me
suggests that Mr CG failed to perform his duties faithfully, diligently,
carefully, honestly and with the exercise of skill and good judgment. The
drink-driving convictions aside, RailCorp has not identified anything that calls
into question Mr CG’s ability to comply with its Drug and Alcohol Policy
or that suggests that he shows a disregard for accepted and legislated community
safety standards. Nor has it been suggested that RailCorp did not have trust and
confidence in Mr CG’s ability to perform his duties during his eight years
of employment. -
The following factors regarding Mr CG’s drink-driving offences are, in
my view, relevant to my consideration of whether the decision to exclude Mr CG
was based on the inherent requirements of the Market Analyst role:-
the offences had no connection with Mr CG’s employment; they did not
occur during work hours and he was not driving as part of any work activity at
the time. -
the most recent of the offences was driving with a low range of prohibited
consumption of alcohol and the relatively short period of suspension (3 months)
expired one year before Mr CG applied for the Market Analyst job. It seems to me
to be harsh in the circumstances to conclude, as RailCorp appears to have done,
that this conviction, which came nearly 6.5 years after the earlier conviction,
represents more than a one-off error of judgment from which Mr CG is likely, as
he claims, to have learnt a lesson. - were it not for the more recent of the offences, the first offence would be
irrelevant for present purposes because of its age.
-
- Finally, I note that Mr CG is not required to drive as part of his
employment with RailCorp. In fact, it appears that he is not required to engage
in any safety critical activity related to the provision of rail transport
services. - For the above reasons I am not satisfied that there is a sufficiently tight
correlation between the inherent requirements of the job of Market Analyst and
the exclusion of Mr CG on the basis of his two drink driving
convictions.
8. Failure
to disclose criminal record
-
RailCorp states that Mr CG did not disclose his 2001 conviction in his
application for the position of Market Analyst (Mr CG only disclosed his 2008
conviction). RailCorp submits that this lack of candour would, of itself,
arguably disentitle him for any claim to the position. -
I accept that an inherent requirement of most jobs is honesty and
trustworthiness, and the failure to make a relevant disclosure may demonstrate
dishonesty. The Commission may decline a complaint of the present kind if it
finds that the act of the employer was based on dishonesty only, not on the
criminal record. - However, from the information before the Commission, it appears that the
decision not to offer Mr CG employment was based on his criminal record and not
because of dishonesty in failing to disclose the 2001 conviction. The
possibility that Mr CG could have been denied the position because he
failed to disclose the 2001 conviction is irrelevant. What is relevant is that
RailCorp did not offer Mr CG employment because he had been convicted of two
drink-driving offences.
9. Power
to make recommendations
-
Where, after conducting an inquiry, the Commission finds that an act or
practice engaged in by a respondent constitutes discrimination, the Commission
is required to serve notice on the respondent setting out its findings and
reasons for those findings.[36] The
Commission may include in the notice any recommendation for preventing a
repetition of the act or a continuation of the
practice.[37] -
The Commission may also recommend:
-
the payment of compensation to, or in respect of, a person who has suffered
loss or damage; and - the taking of other action to remedy or reduce the loss or damage suffered
by a
person.[38]
-
-
Mr CG has requested that I make the following recommendations:
-
Railcorp should practice (sic) their own policies which are already in place
instead of just advertising that they are an employer which offers Equal
Employment Opportunities (EEO). Make sure that there is clear communications
amongst their own HR departments to prevent such cases of discrimination to
occur again in [the] future.molecular gastronomy - Financial compensation for the loss of money, time, as well as injury to
feelings and injury to self-confidence/esteem in applying for other positions to
the amount of $30,828.81.
-
9.1. Policy
- I recommend 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.
9.2. Compensation
-
I am of the view that compensation should be paid to Mr CG for loss and
damage suffered. I consider that compensation in the sum of $7 500 is
appropriate. I therefore recommend payment to him of $7 500. In assessing the
sum recommended, I have taken into account the matters discussed below. -
In considering the assessment of a recommendation for compensation in cases
of this type, the Federal Court has indicated that tort principles for the
assessment of damages should be
applied.[39] I am of the view that
this is the appropriate approach to take in the present matter. For this reason,
so far as is possible by a payment of compensation, the object should be to
place the injured party in the same position as if the wrong had not
occurred.[40] - In relation to any loss or harm suffered Mr CG submitted:
I have
been affected by the outcome of this whole event as I have now been neglected a
chance to enter back into employment with RailCorp and I am somewhat affected
mentally as I now feel that I should not apply for any other roles within
RailCorp (as per the emails no longer suggesting that I should seek any further
employment opportunities with RailCorp) and for that matter, I feel that I
should probably not apply for any other roles within the public service at
all.I feel that I have lost the opportunity at entering a job which gives me a
higher salary than I am currently earning and know that I would be entirely
competent and proficient in performing as I have previously performed the role
for CountryLink/RailCorp before.I have lost a bit of confidence in applying for work as I now feel that this
criminal record will forever loom in the back of my mind and make me wonder
whether this in fact should affect [sic] my chances in applying for other roles,
not just for RailCorp but for any other workplace.I also feel that I have missed the opportunity to enter back into a workplace
with which I am familiar with and had dedicated 8 years of my career with, and
am familiar with a great deal of the employees of this company I’d also
made a lot of leway [sic] in order for myself to go to and attend all these
different hiring tests and interviews for RailCorp and in the process have had
to make up time at work and take days in annual leave
etc.[41] - RailCorp submits that it is not appropriate to recommend compensation
because of Mr CG’s lack of honesty when he failed to disclose his 2001
conviction in his application for the position of Market
Analyst:Where Mr CG has not come to the Commission with clean
hands, and where the President seems to accept that this lack of honesty would
have entitled RailCorp to deny him the position without having regard to his
criminal convictions, the President will not consider it appropriate to
recommend the payment of compensation to Mr
CG.[42]
(a) Hurt,
humiliation and distress
-
Compensation for Mr CG’s hurt, humiliation and distress would, in tort
law, be characterised as ‘non-economic loss’. There is no obvious
monetary equivalent for such loss and courts therefore strive to achieve fair
rather than full or perfect
compensation.[43] - I am satisfied that Mr CG suffered hurt, humiliation and loss of
self-confidence as a result of being discriminated against on the basis of his
criminal record. I am not willing to treat his failure to disclose his 2001
conviction as a basis for refusing or limiting compensation otherwise payable to
him. I do not regard Mr CG’s conduct as analogous to contributory
negligence nor do I believe that the equitable principle of ‘clean
hands’ has any relevant application. No other principle has been
identified as providing support for RailCorp’s submission in this regard.
I regard payment to Mr CG of a sum of $7 500 as appropriate compensation for
hurt, humiliation and loss of self-confidence.
(b) Loss
of earnings
-
Mr CG seeks compensation for economic loss for the period September 2009 to
May 2011. Mr CG seeks the difference in salary between the Market Analyst job at
RailCorp and his current position. - I note that Mr CG has not been out of employment since he was refused
employment at RailCorp, nor have I been provided with any evidence that Mr CG
applied for roles at the same level as the Market Analyst job at RailCorp.
Accordingly, I do not recommend that any compensation for economic loss be paid
to him.
10. RailCorp’s
response to the Recommendations
-
By letter 28 July 2011, RailCorp was requested to advise the Commission by
12 August 2011 whether it had taken or is taking any action as a result of my
findings and recommendations and, if so, the nature of that action. -
By letter dated 16 August 2011 RailCorp provided the following response to
my notice of recommendations:-
RailCorp, with respect, maintains its view that its decision not to offer Mr
CG employment was not conduct that amounted to discrimination for the purposes
of the Australian Human Rights Commission Act 1986. -
In these circumstances, and also having regard to Mr CG’s lack of
candour during the employment application process, RailCorp declines to pay
compensation to Mr CG. - Notwithstanding the above, and as part of RailCorp’s ongoing and
demonstrated commitment to non discrimination and equal employment opportunity,
RailCorp will be undertaking a review of its recruitment procedures with a view
to ensuring that persons are not inappropriately excluded from employment with
RailCorp on the basis of criminal record.
-
- I report accordingly to the Attorney-General.
Catherine Branson
President
Australian Human Rights
Commission
January 2012
[1] Australian Human Rights
Commission Regulations 1989 (Cth), reg
4(a)(iii).
[2] Commonwealth v
Bradley (1999) 95 FCR 218 at 235 [35] (Black
CJ).
[3] Commonwealth v Human
Rights & Equal Opportunity Commission and Hamilton (2000) 180 ALR 635,
642 [31] and following.
[4] Ibid,
644 [36].
[5] (1987) 70 ILO
Official Bulletin, Ser B, Supp
1.
[6] (1998) 193 CLR
280.
[7] Qantas Airways v
Christie (1998) 193 CLR 280,
284.
[8] Ibid,
295.
[9] Ibid,
318.
[10] (1999) 200 CLR
177.
[11] Ibid,
208.
[12] (1998) 158 ALR
468.
[13] Ibid,
482.
[14] Commonwealth v
Bradley (1999) 95 FCR 218 at 235 [35] (Black
CJ).
[15] Ibid, 235
[36].
[16] Ibid, 235-6
[37].
[17] Ibid, 237
[40].
[18] Unreported, Northern
Territory Anti-Discrimination Commission, Commissioner Fitzgerald, 22 April
2005.
[19] Ibid
[5.3.5].
[20] Ibid
[5.3.8].
[21] Above n 3, [61].
[22] Letter from RailCorp to
President Catherine Branson dated 4 March 2011, p
2.
[23] Letter from RailCorp to
President Catherine Branson dated 20 October 2010, p
2.
[24] RailCorp’s Safety
Strategic Plan 2005-2010, (3rd version dated August 2007), p 2.
[25] Ibid, p
5.
[26] Ibid, p
21.
[27] Ibid, p
22.
[28] RailCorp Policy: Drug
and Alcohol, 1 May 2006, p
2.
[29] Letter from RailCorp to
Jodie Ball dated 30 March 2010, p
3.
[30] Letter from RailCorp to
President Catherine Branson dated 4 March 2011, p
3.
[31] Ibid, p
5.
[32] Ibid, p
3.
[33] Letter from RailCorp to
President Catherine Branson dated 20 October
2010.
[34] Ibid, p 9.
[35] Letter from RailCorp to
President Catherine Branson dated 4 March 2011, p
5.
[36] Australian Human
Rights Commission Act 1986 (Cth), s
35(2)(a).
[37] Australian
Human Rights Commission Act 1986 (Cth), s
35(2)(b).
[38] Australian
Human Rights Commission Act 1986 (Cth), s
35(2)(c).
[39] Peacock v
Commonwealth (2000) 104 FCR 464, 483 (Wilcox J)
[55].
[40] See Hall v A &
A Sheiban Pty Limited (1989) 20 FCR 217, 239 (Lockhart
J).
[41] Original complaint made
by Mr CG to the Australian Human Rights Commission dated 21 December
2009.
[42] Above n 35, p
6.
[43] Sharman v Evans (1977) 138 CLR 563, 589 (Gibbs and Stephen JJ).