Employment Discrimination and Criminal Records: The Case of Ms Jessica Smith v Redflex Traffic Systems Pty Ltd [2018] AusHRC 125

Feb 104 min read

Introduction

Discrimination in employment on the basis of a criminal record is a growing issue in Australia, raising serious questions about fairness, rehabilitation, and workplace integrity. The case of Ms Jessica Smith v Redflex Traffic Systems Pty Ltd [2018] AusHRC 125 provides a crucial example of how employers must properly assess criminal history checks and comply with anti-discrimination laws.

This case was heard by the Australian Human Rights Commission (AHRC), which found that Redflex Traffic Systems Pty Ltd (Redflex) unlawfully discriminated against Ms Smith by withdrawing a conditional job offer due to her past criminal record. The decision highlights the importance of making individualised assessments in recruitment rather than implementing blanket exclusions.

At 1800ADVOCATES, we support workers facing workplace discrimination and advocate for fair treatment in employment. This case demonstrates the need for employers to ensure their hiring practices align with human rights protections.

Employment Discrimination and Criminal Records: The Case of Ms Jessica Smith v Redflex Traffic Systems Pty Ltd [2018] AusHRC 125

The Case: Ms Jessica Smith v Redflex Traffic Systems Pty Ltd

Ms Jessica Smith applied for a position as a Mobile Speed Camera Operator (MSCO) with Redflex in September 2016. She successfully completed the interview process and was offered the job on a conditional basis, subject to a criminal history check and medical assessment.

Ms Smith disclosed that her National Police Check (NPC) would likely reveal disclosable offences and requested that the check be conducted before her medical assessment. A few weeks later, Redflex withdrew her job offer, citing her criminal record as the reason.

Ms Smith sought clarification from Redflex and requested an opportunity to discuss her circumstances. Redflex did not respond, prompting her to lodge a complaint with the AHRC, alleging discrimination on the basis of her criminal record.

Ms Smith’s Criminal Record

Ms Smith’s criminal history included:

2004 – Assault occasioning actual bodily harm (Community service order, 80 hours)
2007 – Possession of a prohibited drug (marijuana) (Fined $150 plus court costs)

Redflex’s Justification for Withdrawing the Offer

Redflex argued that:

The MSCO role required candidates to pass a criminal history check.
The contract with Roads and Maritime Services NSW (RMS) required Redflex to ensure all employees were fit and proper persons.
Ms Smith’s criminal record indicated she was unsuitable for the role, as it involved dealing with the public in potentially volatile situations.

Legal Issues Considered by the AHRC

The AHRC examined whether:

Redflex’s decision constituted an exclusion from employment on the basis of a criminal record.
The exclusion impaired Ms Smith’s equality of opportunity in employment.
Redflex could justify the exclusion based on the inherent requirements of the job.

Findings of the AHRC

The AHRC found that:

Redflex discriminated against Ms Smith by rescinding her job offer based solely on her criminal record.
The exclusion was not justified under the inherent requirements of the role.
Ms Smith’s past offences did not automatically disqualify her from employment.
Redflex failed to conduct an individualised assessment, relying instead on broad assumptions about Ms Smith’s character.
There was no evidence that RMS required Ms Smith’s exclusion, as Redflex had not referred her case to RMS for review.

Recommendations by the AHRC

The AHRC recommended that Redflex:

Pay Ms Smith $2,500 in compensation for the hurt, humiliation, and distress caused.
Revise its recruitment policies to align with AHRC guidelines on criminal record discrimination.
Train HR and recruitment staff on fair assessment of criminal history in employment.

To Redflex’s credit, the company accepted the recommendations, implemented an anti-discrimination policy, and provided training for its staff.

What This Case Means for Workers and Employers

For Workers: Understanding Your Rights

This case highlights important protections for individuals with a criminal record:

A past conviction does not automatically disqualify you from employment.
Employers must justify exclusions based on a criminal record by demonstrating that the conviction directly impacts the job’s inherent requirements.
You have the right to request an individualised assessment and to explain your circumstances before an employer makes a final decision.
If you believe you have been discriminated against, you can lodge a complaint with the Australian Human Rights Commission.

For Employers: Best Practices in Hiring

Employers should:

Assess criminal records on a case-by-case basis, ensuring a direct connection between the conviction and the job’s requirements.
Avoid blanket policies that automatically exclude candidates with any criminal history.
Ensure recruitment decisions align with anti-discrimination laws.
Follow the AHRC’s On the Record: Guidelines for the Prevention of Discrimination in Employment on the Basis of Criminal Record.
Engage with candidates about their history rather than making assumptions.

Balancing Workplace Integrity with Human Rights

While employers must ensure workplace integrity and safety, they must also balance this obligation with fair and lawful hiring practices. The AHRC emphasised that an exclusion based on a criminal record should only occur where there is a tight correlation between the offence and the job’s requirements.

In this case, Ms Smith’s past convictions—one for a minor drug offence and another for an assault committed over a decade prior—did not necessarily impact her ability to perform the MSCO role. The AHRC found that Redflex’s decision was based on assumptions rather than a fair assessment of her individual merits.

How 1800ADVOCATES Supports Workers Facing Discrimination

As employment and human rights advocates, 1800ADVOCATES is committed to assisting workers who experience discrimination. While we do not provide legal representation, we can:

Help you understand your rights under Australian law.
Assist in preparing complaints to the Australian Human Rights Commission or Fair Work Commission.

If you believe you have been unfairly treated in the workplace due to a criminal record, contact 1800ADVOCATES for general information and guidance.

Final Thoughts: Fair Employment for All

The case of Ms Jessica Smith v Redflex Traffic Systems Pty Ltd serves as a crucial reminder that workers should not be unfairly judged on their past, and that employers must ensure their hiring practices comply with human rights principles. Employment discrimination laws exist to provide equal opportunity for all Australians, including those with prior convictions.

At 1800ADVOCATES, we are committed to ensuring that every worker has a fair chance at employment, free from unlawful discrimination. If you need support regarding workplace discrimination, reach out to 1800ADVOCATES today.

Disclaimer

The following article provides general information only and is not intended as legal advice. 1800ADVOCATES is not a law firm, and we do not provide legal representation. We are employment and human rights advocates committed to supporting workers in understanding their rights. If you require legal advice, we recommend consulting a qualified solicitor or legal service provider.