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President reports on TM v Linfox Australia Pty Ltd [2014] AusHRC 81

Legal Legal

The President of the Australian Human Rights Commission, Professor Gillian Triggs, has found that Linfox Australia Pty Ltd discriminated against TM on the basis of his criminal record.

While working with Linfox through a labour hire company, TM was approached by the Operations Manager at the Linfox site and requested to convert his employment directly to Linfox. TM consented to the request and completed the necessary paperwork including a consent form for Linfox to get a police check. In that paperwork he indicated he did have ‘adult convictions or findings of guilt, which are over 10 years old,’ the details of which he said were “AS PER CRIMINAL HISTORY CHECK.”

Linfox claim that in a later conversation with the Operations Manager, TM gave false information about the nature of his criminal record and failed to provide full and accurate disclosure of his criminal convictions. However, Professor Triggs found that in light of the declarations in the paperwork completed by TM and the circumstances of the conversation, he did not mislead Linfox as to his criminal history.

A few days after Linfox received TM’s criminal record check, TM’s work with Linfox was terminated. TM claims that Linfox’s decision was made on the basis of his criminal record. Linfox claim that it was on the basis of TM not providing truthful disclosure of his criminal convictions. Professor Triggs found that the exclusion of TM was made on the basis of his criminal record.

Linfox also submitted that its exclusion of TM was based on the inherent requirements of TM’s job of linehaul driver, which include integrity and trust, and that as TM did not provide truthful disclosure of his criminal convictions he was not offered the position.

Professor Triggs accepted that integrity and trust were inherent requirements of the role of linehaul driver. However, Professor Triggs found that in the circumstances of TM’s complaint, any failure to provide full disclosure of his criminal record in his discussion with the Operations Manager did not mean that TM is unable to comply with the inherent requirement of ‘integrity and trust’. TM had signed a consent form authorising Linfox to obtain a criminal record check. He had also stated on the paperwork required by Linfox that he had a criminal record and to refer to his criminal record check for details. Professor Triggs was not satisfied that TM was unable to perform the inherent requirements of the role of linehaul driver.

Professor Triggs recommended that compensation of $11,048 be paid to TM for hurt and humiliation, and economic loss, and that Linfox make a written apology to TM.

As this decision can be reviewed under the Administrative Decisions (Judicial Review) Act 1977 (Cth), this is the only statement the Commission will be making on this matter.

A copy of this report: TM v Linfox Australia Pty Limited is available online.

Media contact: Sarah Bamford (02) 9284 9758 or 0417 957 525.