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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


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:

  1. 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.

  2. 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.

  3. 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

  1. 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).

  2. As a result of the inquiry, the Commission has found that Mr CG was
    discriminated against on the basis of his criminal record.

  3. This inquiry has been undertaken pursuant to s 31(b) of the Australian
    Human Rights Commission Act 1986
    (Cth) (the AHRC Act).

  4. I have directed that the complainant’s identity be protected in
    accordance with s 14(2) of the AHRC Act.

2. Summary

  1. 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.

  2. 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.
  3. I have recommended that RailCorp pay Mr CG $7 500 in compensation for hurt,
    humiliation and distress.

3. Outline
of complaint

  1. 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.

  2. 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.

  3. 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.

  4. Mr CG provided a written submission to the Commission on 8 May 2011.

  5. 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.

  6. 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.

  7. 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.

  8. 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

  1. The Commission has endeavoured without success to conciliate a settlement of
    the complaint.

5. Relevant
legal framework

  1. 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).

  2. 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.

  3. 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.

  4. Australia has declared criminal record as a ground of discrimination for the
    purposes of the AHRC Act.[1]

  5. 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;

    ...

  6. 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

  1. 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.

  2. 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.

  3. 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
  1. 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]

  2. 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]

  3. 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.

  4. 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
  1. 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]

  2. 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]

  3. Justice Gummow noted that the term ‘inherent’ suggests ‘an
    essential element of that spoken of rather than something incidental or
    accidental’.[9]

  4. 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’
  1. 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]

  2. 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]

  3. 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]

  4. 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]

  5. 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)

  6. 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
  1. 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.

  2. 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.

  3. 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
  1. 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]
  1. 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; and

    b) 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.

  2. 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]

  3. 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.

  4. 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]

  5. 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.

  6. 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.

  7. 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.

  8. 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.

  9. 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?
  1. 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.

  2. 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.

  3. 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.

  4. 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]

  5. 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.
  1. 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]

  2. 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.

  3. 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]

  4. 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.

  5. 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
  1. 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.

  2. 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
  1. 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.

  2. 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.

  3. 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
  1. 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.

  2. 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
  1. 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.

  2. 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.

  3. 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

  1. 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.

  2. 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]

  3. 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.

  4. 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.

  5. 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.

  6. 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.

  7. 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.

  8. 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.

  9. 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

  1. 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.

  2. 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.

  3. 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

  1. 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]

  2. 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]
  1. 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

  1. 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

  1. 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.

  2. 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]

  3. 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]

  4. 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
  1. 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]

  2. 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
  1. 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.

  2. 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

  1. 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.

  2. By letter dated 16 August 2011 RailCorp provided the following response to
    my notice of recommendations:

    1. 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.

    2. 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.

    3. 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.

  3. 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).