Tech company Data#3 says it won’t pay sacked worker $76,000 in compensation after Human Rights Commission rules he was discriminated against

Technology company Data#3 has said it will not follow a recommendation by the Human Rights Commission to pay a former worker $76,000 in compensation, after he brought a discrimination complaint against the company when his employment was terminated over previous drug charges.

The Human Rights Commission’s report, released this week, details the case of worker Mr AW, who was hired by Australian Securities Exchange-listed Data#3 in December 2013. In January 2014 the business discovered he had a previous criminal conviction in New Zealand for selling the drug MDMA, according to the inquiry report.

The worker’s employment was then terminated during his six-month probation window, and the employee subsequently lodged a complaint with the Human Rights Commission in May 2014, claiming he had been discriminated against on the basis of his criminal record.

The employee said he had asked representatives from the company in the interview process whether he was required to undertake a security or criminal record check in order to commence employment and claims he was told this was not a condition of his employment.

Data#3 responded to the complaint by telling the Commission it had a right to terminate the employment “for any reason” within the six-month probationary period, and “Mr AW’s recent and serious criminal actions are inconsistent with Data#3’s core values”.

Human Rights Commissioner Gillian Triggs ultimately found the dismissal amounted to discrimination on the basis of a criminal record, after considering a number of factors, including whether the record of the employee was based on the “inherent requirements” of the job being performed.

Based on this finding, the commissioner recommended Data#3 pay the employee compensation for economic loss to the value of $71,639 and $5,000 for hurt and humiliation caused.

However, Human Rights Commission recommendations are not legally binding and while the company agreed to additional recommendations that its training and recruitment approaches be reviewed, it has declined to pay the worker compensation.

Read more: Hinch’s concerns prompt McDonald’s to revamp hiring policies but experts say SMEs should take care when checking employees’ criminal histories

Where to from here?

Employment lawyers told SmartCompany this morning that while the case could still be taken further by the applicant by pursuing damages in a forum other than the Human Rights Commission, exactly how that would be done is complicated and not clear at this stage.

While not commenting on this case directly, McDonald Murholme managing director Alan McDonald said it is important for businesses to understand that anti-discrimination legislation can still apply when employees are within their probationary period.

“They can’t avoid merely by saying the employee is on a probationary period,” he says.

“It’s not even ‘dicey’ – it’s clear that the anti-discrimination laws apply not just to people in probationary and trial periods, but also for people when applying for work.”

The purpose of these legal frameworks are broader than just the success of an individual business, says McDonald, so managers should always keep this in mind when making decisions.

“They need to bear in mind that there are broader economic reasons why they enforce these laws – in Australia, we want people contributing,” he says.

When asking employees about their criminal pasts, companies should consider whether a conviction relates to the work.

“For example, if an employee is handling money – it would be wise to check that the employee does not have a criminal record for theft,” says McDonald.

SmartCompany contacted Data#3 this morning for further comment on the case, but did not receive a response prior to deadline.