Complainant DT232023 v The Australian Capital Territory represented by the Community Services Directorate (Discrimination)
[2024] ACAT 17
•13 February 2024
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
COMPLAINANT DT232023 v THE AUSTRALIAN CAPITAL TERRITORY represented by the COMMUNITY SERVICES DIRECTORATE (Discrimination) [2024] ACAT 17
DT 23/2023
Catchwords: DISCRIMINATION – discrimination in the workplace on the basis of a protected attribute, irrelevant criminal record – reasonableness of the respondent’s determination that the complainant’s criminal record was not irrelevant – imposition of a removal from access to workplace systems and a suspension from the performance of work on paid leave as well as a determination that no extension to the complainant’s fixed term contract would be offered
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 39
Discrimination Act 1991 ss 7, 8, 10, 70
Human Rights Commission Act 2005 ss 53A, 53C, 53CA
Tribunal:Senior Member L Drake
Date of Orders: 13 February 2024
Date of Reasons for Decision: 13 February 2024
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) DT 23 /2023
BETWEEN:
COMPLAINANT DT232023
Applicant
AND:
THE AUSTRALIAN CAPITAL TERRITORY REPRESENTED BY THE COMMUNITY SERVICES DIRECTORATE
Respondent
TRIBUNAL:Senior Member L Drake
DATE:13 February 2024
ORDER
The Tribunal finds that:
The respondent discriminated against the complainant by acting to the detriment of the complainant on the basis of an irrelevant criminal record by determining that she could no longer have access to the respondent’s systems, could no longer continue to perform her duties and would not be offered an extension to her fixed term contract in contravention of Part 3 of the Discrimination Act 1991.
The Tribunal orders that:
The Tribunal makes an order pursuant to section 39 of the ACT Civil and Administrative Tribunal Act 2008 to make the complainant’s identity private.
This matter will be listed on Thursday, 22 February 2024 at 10:00am for further directions to determine the next steps to be taken in the proceedings including the Orders the Tribunal must make pursuant to section 53C of the Human Rights Commission Act 2005.
………………………………..
Senior Member L Drake
REASONS FOR DECISION
This is an application concerning alleged discrimination under the Discrimination Act 1991 (the Discrimination Act). The complainant alleges that, whilst she was still in employment, the respondent removed her access to its network and placed her on paid leave for the last seven weeks of her temporary contract. It also informed her that an extension to her contract would not be offered to her.
It is not disputed that the respondent took this action as a result of its perception of the applicant’s criminal record, which it did not consider to be an irrelevant criminal record. This conclusion was based on correspondence received from the ACT Integrity Commission (the Integrity Commission).
The parties
The complainant is a single female with two dependent children. At the time of making this complaint, she was unemployed.
On 5 July 2023, this complaint was referred to the Tribunal by the ACT Human Rights Commission, pursuant to section 53A of the Human Rights Commission Act 2005 (the HRC Act). The ground of discrimination was identified as “[i]rrelevant criminal record, subjection to domestic or family violence and association with someone with a protected attribute.”[1] The area of discrimination was identified as employment.
[1] Exhibit A1 – Referral from the Human Rights Commission dated 5 July 2023
The respondent is the Australian Capital Territory (represented by the Community Services Directorate).
The hearing
The application was listed for hearing in Canberra on 27 November 2023.
The complainant appeared on her own behalf before the Tribunal. She provided and relied upon the following documents:
(a)the referral from the Human Rights Commission;[2]
(b)Particulars of Discrimination;[3]
(c)a statement of the complainant dated 28 September 2023;[4]
(d)an email dated 27 November 2023;[5]
(e)a report of the complainant’s psychiatrist dated 23 July 2023;[6]
(f)correspondence from Ms Dreyer-White to Jessica Miller dated 21 June 2023;[7] and
(g)a document produced by the respondent dated 1 November 2023.[8]
[2] Exhibit A1
[3] Exhibit A2
[4] Exhibit A3
[5] Exhibit A4
[6] Exhibit A5
[7] Exhibit A6
[8] Exhibit A7
The complainant did not seek to cross examine any witnesses. She relied upon her oral address and the documents listed above.
The respondent was represented by Ms K Weir of counsel instructed by Mr M Quincy O’Neill and Ms S Medved from the respondent. It provided and relied upon the following documents:
(a)a Response to Particulars of Discrimination 31 August 2023;[9]
(b)Submissions;[10]
(c)an Index of Documents dated 24 November 2023;[11]
(d)a statement of Magdalena Dreyer-White dated 23 November 2023;[12]
(e)Supplementary Submissions dated 23 November 2023;[13]
(f)a statement of Ms Anita Perkins dated 30 October 2023;[14]
(g)a statement of Rene Cutripi dated 30 October 2023;[15]
(h)a Tender Bundle;[16]
(i)a document extracted from a subpoena to the respondent;[17] and
(j)a bundle of authorities provided to the Tribunal subsequent to the hearing.
[9] Exhibit R1
[10] Exhibit R2
[11] Exhibit R3
[12] Exhibit R4
[13] Exhibit R5
[14] Exhibit R6
[15] Exhibit R7
[16] Exhibit R8
[17] Exhibit R9
The respondent did not seek to cross examine the complainant.
Role of the Tribunal
The Tribunal’s role in this application is to determine if the respondent breached its obligations under the Discrimination Act and, if so, whether it is liable to pay damages to the complainant or take other actions to remedy that breach.
Factual background
The complainant sought employment from the temporary employment register on 22 February 2021. She notified the respondent of her criminal record in her application. There is no suggestion that the complainant’s disclosure of her criminal record was anything but frank.
On 4 March 2021, the applicant’s temporary contract was brought to an end by the respondent after its consideration of her criminal record.
The complainant lodged a complaint with the Human Rights Commission. That notification was resolved after a conciliation conference with the respondent’s head of Human Resources, a Mr Craig Rose. The applicant’s evidence is that:
I explained my record and what I’ve been through, and we came to the conclusion that I would be able to get put back on the temporary register, and in doing so, I was called, I think, a month or two months later and asked to commence a position and on that new starter pack I disclosed, as Craig advised me, to just write that Craig Rose is aware of my criminal history and if there’s any concerns, to call him.[18]
[18] Transcript of proceedings dated 27 November 2023, page 21, lines 27-33
Terms were entered into. Mr Rose determined that the respondent would employ the applicant despite her criminal record and that is what happened.
The complainant commenced employment on 4 November 2021 after having disclosed, on her new employee information pack, “I do have a history. Please contact Craig Rose. He knows all about it.”[19] The complainant also offered to provide further details if required.
[19] Transcript of proceedings dated 27 November 2023, page 24, lines 35-36
In her subsequent employment with the respondent, the complainant has had access to the respondent’s systems, as required, and has had a satisfactory performance record, although the higher position sought by the complainant would involve a greater level of access than her previous roles. There have been no allegations of misconduct against her.
The applicant has performed her role as a temporary employee on rolling contracts.
In March 2023, the complainant sought a permanent position at the Canberra Institute of Technology (the CIT). On 30 March 2023, the applicant received an offer of a permanent employment with the CIT commencing on 26 April 2023.
On 11 April 2023, the respondent received correspondence from the Integrity Commission. Mr Rose was on leave. Ms Dreyer-White was performing that role when the correspondence was received and is still performing that role.
The correspondence indicates that the ACT police had executed a search warrant at the complainant’s home and identified her as an ACT government employee. They do not indicate that the complainant was the subject of the search warrant. The police provided the complainant’s criminal record to the Integrity Commission in case she had not been frank as to her criminal record on her pre‑employment documents.
The Integrity Commission correspondence stated:
A review of [the complainant’s] criminal history shows criminal convictions in the ACT and NSW for violence, dishonesty and drug related offences including a very serious drug related offence dating as far back as 2017 but as recent as 2020.[20]
[20] Exhibit R8 – ‘Respondent’s Tender Bundle’ filed 2 November 2023 – ‘ACTIC Letter’ dated 11 April 2023, pages 53-55
On 12 April 2023, without notice to the applicant or any consultation, Ms Dreyer‑White removed the complainant’s access to the respondent’s systems, removed her from active work, and placed her on paid leave until the end of her contract. She was advised that her temporary contract would not be renewed. She was not provided with the information provided by the Integrity Commission.
The respondent accepts that the action complained of by the complainant arose as a direct result of the information received from the Integrity Commission.
Following notification to the complainant of the decision made by Ms Dreyer- White, the complainant made lengthy submissions to the respondent’s officers, putting the history of the negotiated outcome with Mr Rose and her personal circumstances and history. She provided supportive material from her psychiatrist. She actively sought a reconsideration of Ms Dreyer- White’s decision.
The respondent was not persuaded by her submissions. Indeed, the respondent barely responded to any issues of merit put by the complainant in her requests for a reconsideration.
Neither did the respondent agree to a conciliation before the Human Rights Commission, an unusual response from an ACT directorate.
The applicant had resigned her role to take up the position offered by the CIT. It is alleged by the complainant that that role has also been denied to her on the basis of her criminal record. That complaint is before the Tribunal in separate proceedings.
The statutory framework
The Discrimination Act protects persons with certain “protected attributes” – as defined in section 7 of that Act (protected attributes) – from direct or indirect discrimination – as defined in 8 of the Act – in certain areas of public life, including employment. One of the protected attributes is an irrelevant criminal record. It is not in dispute that the complainant has a criminal record. Section 8 of the Discrimination Act defines direct discrimination as follows:
8 Meaning of discrimination
(1) For this Act, discrimination occurs when a person discriminates either directly or indirectly, or both, against someone else.
(2) For this section, a person directly discriminates against someone else if the person treats, or proposes to treat, another person unfavourably because the other person has 1 or more protected attributes.[21]
[21] (emphasis added)
An act will only be unlawful under the Discrimination Act if it occurred in a protected area of public life. The workplace is one such area, as per section 10:
10 Applicants and employees
…
(2) It is unlawful for an employer to discriminate against an employee—
(a)in the terms or conditions of employment that the employer affords the employee; or
…
(d)by subjecting the employee to any other detriment.[22]
[22] (emphasis added)
As I understand the applicant’s submission, she alleges that she was directly discriminated against, as per section 8(2) of the Discrimination Act.
The HRC Act establishes who bears the onus of proof in discrimination proceedings, such as this, more generally:
53CA Onus of establishing complaint about discrimination etc
(1) This section applies to a discrimination complaint, referred to the ACAT under this division, about discrimination by a person against another person by—
(a)treating, or proposing to treat, the other person unfavourably because of a protected attribute of the other person (direct discrimination);
(2) It is a rebuttable presumption that discrimination has occurred if the complainant—
(a)establishes that—
(i) for a complaint about direct discrimination—the treatment or proposed treatment is unfavourable; and
(ii)… and
(b) presents evidence that would enable the ACAT to decide, in the absence of any other explanation—
(i)for a complaint about direct discrimination—that the treatment or proposed treatment is because of a protected attribute of the other person; or
(1) The presumption under subsection (2) is rebutted if the person complained about establishes that—
(a)for a complaint about direct discrimination—the treatment is not because of a protected attribute of the other person; or
…
Note The onus of establishing an exception or exemption to discrimination is on the person seeking to rely on it (see Discrimination Act 1991, s 70).[23]
[23] (emphasis added)
Additionally, section 70 of the Discrimination Act sets out who bears the onus of establishing an exception under that Act:
70 Onus of establishing exception etc
If, apart from an exception, exemption, excuse, qualification or justification under this Act, conduct would be an unlawful act, the onus of establishing the exception, exemption, excuse, qualification or justification lies on the person seeking to rely on it.[24]
Submissions of the complainant
[24] (emphasis added)
The complainant submitted that she has been traumatised by the sequence of events engaged in by the respondent. She submits that the situation in which she is now placed has been brought about by the questionable actions of persons who underestimated the impact of their decisions on her well-being. This situation has enlivened much unnecessary trauma concerning her past and her lengthy relationship involving domestic violence. She has lost trust and hope in a fair deal for people like her.
In correspondence responding to the notification of Ms Dreyer-White’s decision, the complainant submitted to the respondent that she had already disclosed her criminal record in full. She said:
The challenging circumstances of my life contribute greatly to the fact that I now have a criminal record. When applying for jobs I have never withheld any relevant information and have always made a full disclosure of my past.
Following a very traumatic, abusive and neglected childhood, and a partnership in which I was a victim of additional extreme domestic violence, I am now the recipient of counselling and am a very different, stronger, healing person who is a devoted mother to my two children and very determined to be a trustworthy, dependable, and hard-working employee is given the opportunity to prove myself. I have documentation which outlines the childhood, (see attached) and later years’ abuse, which I can share in confidence, and which will provide details of experience as a child, and as an adult, which led to my diagnosed PTSD.
I am articulate, committed to my workplace, experienced in Administration and Customer Service and hold a Working with Vulnerable People authorisation. I acknowledge that I am on paid leave and will remain an employee of the Directorate until close of business on me 31 May, 2023. On reflection, I take some consolation in the fact that I expressed my current position following an interview, because my demonstrated work ethic, integrity and commitment. My referee report supported my successful application.
I appreciate your facilitation in this project to provide support to me during this negative experience.[25]
[25] Email – ‘Placement on other paid leave’ dated 19 April 2023
The applicant submitted that she had been proud of being a public servant and working full-time. She had been hoping that her hard work would pay off, and she would be able to gain permanent employment. She was demonstrating to her children what it was like to live a normal life. She is now without a work placement and is reliving past trauma.
Submissions of the respondent
The respondent submits that its actions do not constitute unlawful discrimination under the Discrimination Act for two reasons.
Firstly, the respondent’s actions in removing the complainant’s access to its network and placing her on paid leave do not constitute unfavourable treatment as is understood pursuant to the Discrimination Act.
The complainant did not suffer any loss or detriment because she was paid out her contract, in circumstances where she had already given notice of resignation, for unrelated reasons.
The respondent’s actions were not causative of any detriment. Ms Weir described the complainant’s resignation as essentially being the “causative intervening event”.[26]
[26] Transcript of proceedings dated 27 November 2023, page 19, line 16
Secondly, the respondent submits that the complainant does not possess a protected attribute – i.e. an irrelevant criminal record. The respondent considers the complainant’s criminal record to be a relevant criminal record.
Consideration
The respondent bears the onus to establish that the applicant’s criminal record is not irrelevant. It must determine that matter. The respondent cannot delegate the determination of that issue.
The Integrity Commission provided information to the respondent. It is not the decision maker as to the relevance or irrelevance of the claimant’s criminal record. In fact, it did no more than inform the respondent of the applicant’s criminal record, reflecting the police concern, having identified her as a government employee, that she may not have done so herself. This was not the case. The concerns of the police regarding non-disclosure, conveyed by the Integrity Commission, were not warranted.
Ms Weir suggested that this information, having been conveyed by the Integrity Commission, was somehow weightier. It added “[a]nother layer of seriousness”.[27] I am not persuaded that the input of the Integrity Commission adds anything to the consideration of this issue required of the respondent.
[27] transcript of proceedings dated 27 November 2023, page 25, lines 29-30
Whilst Ms Dreyer-White was not personally aware of the applicant’s criminal record before receiving the correspondence from the Integrity Commission, the applicant had, in fact, complied with her obligations on commencement of employment and had informed the respondent. She had met the obligation of disclosure. She then engaged in negotiations with the head of Human Relations in conciliation.
Mr Rose behaved in a proper manner when reaching his conclusion as to the relevance of the complainant’s criminal record. He met with her in conciliation. He listened to her submission. He weighed the circumstances and context of her criminal record and made a considered decision.
Ms Dreyer-White received the correspondence of the Integrity Commission and immediately leapt into punitive action against the complainant. She received the letter, immediately suspended the complainant from all active employment, and determined that she would not be employed on an extension of her temporary contract. All without speaking to the complainant. So far as the Tribunal is aware, she did so without speaking to Mr Rose or examining the past file. It was a quintessential knee-jerk reaction.
Ms Dreyer-White made this decision with no background information whatsoever. She did not meet with the complainant. She did not seek submissions from her before making her decision. She did not seek any information regarding the circumstances surrounding the search warrant referred to by the police. Neither Ms Dreyer-White nor Mr Henderson appear to have given the complainant’s circumstances any real consideration.
Conciliation was rejected even though it was an opportunity to consider and weigh the background and circumstances of the complainant, including her satisfactory performance and conduct in employment, against her criminal record in a neutral environment.
A criminal record may appear by its bald statement to be significant and highly likely to be relevant. That bald statement cannot be decisive of the issue. To determine if a criminal record is irrelevant an employer must consider all the circumstances surrounding the applicant’s employment. In this case, some of those factors would have included the respondent’s previous determination to employ her with her acknowledged criminal record, her satisfactory performance to date and the absence of any acts of dishonesty during her employment which might have been otherwise anticipated in someone with her criminal record. Also, her personal circumstances.
Ms Weir raised the possibility that Ms Dreyer-White would have been concerned, not only about the seriousness of the criminal record itself, but whether the complainant would be subject to the influence of other persons. She has in the past been led astray. She might well have been concerned. That concern would have been a good reason to meet and discuss the applicant’s circumstances directly.
The fact that the complainant applied for full-time employment elsewhere does not prevent a finding being made of a detriment to the complainant arising from the respondent’s conduct in removing her access to its systems, placing her on paid leave, and its immediate pre-emptive decision not to extend her contract.
The respondent ceased to provide the complainant with work. The respondent submits that this is not a detriment. It submits it did not treat her unfavourably because it paid her. This is too narrow a definition of detriment.
I am not persuaded that the payment of money negates the detriment that arises from removal from access to the respondent systems, the absence of real work, and the decision not to offer her any work in the future. Placing the applicant on paid or gardening leave and not allowing her to continue in active employment is a detriment. Employment requires the performance of work. The provision of gardening leave is not the performance of an employer’s obligation to provide employment. Removal of the opportunity to perform work is a detriment. A decision made, without consultation, to refuse to extend the complainant’s contract, whether or not she intended to avail herself of that opportunity, is a detriment.
The respondent was never bound to offer an extension of the applicant’s employment at the conclusion of her fixed term contract. That is clear from the Commencement of Employment documents executed and accepted by the complainant. However, I am satisfied that it is direct discrimination to determine that no such employment will be offered on the basis of an ill-considered conclusion by the respondent based on mere knowledge of the existence of the criminal record itself, with no other information or context.
I have considered the complainant’s family and domestic background, her current circumstances, and the context of her criminal record, including the material outlined by the complainant’s psychiatrist. These are matters that should have been considered by the respondent before the outcome decided upon by Ms Dreyer-White was determined. At the very least, a meeting should have been had with the complainant and consideration given to the issues I have drawn attention to.
Finding and conclusion
I am satisfied and find that the respondent directly discriminated against the complainant in her employment based on her criminal record that, I am satisfied, was, in the all the circumstances, an irrelevant criminal record.
The matter will be listed for directions to determine the steps to be taken in the proceedings.
………………………………..
Senior Member L Drake
| Date of hearing: | 27 November 2023 |
| Complainant: | Self-represented |
| Counsel for the Respondent: | Ms Katie Weir |
| Solicitor for the Respondent: | Mr Michael Quinsey O’Neill, ACT Government Solicitor |
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