15 February 2024

ACT Government discriminated against public servant due to her criminal history in 'knee-jerk reaction'

| Albert McKnight
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ACAT building in Civic

ACAT has ruled against the ACT Government, finding it discriminated against an employee. Photo: Google Maps.

The ACT Government discriminated against a temporary public servant due to her “irrelevant criminal record”, the Territory’s tribunal has found.

On Tuesday (13 February), the ACT Civil and Administrative Tribunal said the government had determined the woman, whose name was legally suppressed, could no longer have access to its systems, could no longer continue to perform her duties and would not be offered an extension to her fixed-term contract due to this record.

The woman, a single mother with two children who was unemployed when she went to ACAT, represented herself at the hearing while the government fought her claims with a team of lawyers.

Senior Member Lea Drake said the woman had looked for a job from the temporary employment register in February 2021 and had told the government about her criminal record in her application.

“There is no suggestion that the complainant’s disclosure of her criminal record was anything but frank,” she said.

However, after reviewing her record, the government ended her employment on 4 March 2021. She lodged a complaint with the Human Rights Commission, which was resolved and the government’s head of Human Resources, Craig Rose, determined she should still be employed. She began work again in November 2021.

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In March 2023, she was offered a permanent position at a different organisation. But in April 2023, while Mr Rose was on leave, the ACT Integrity Commission told the government police had raided the woman’s home.

“A review of [the woman’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,” the commission said.

Without notice, the person acting in Mr Rose’s position, Magdalena Dreyer-White, removed the woman’s access to the government’s systems, removed her from active work and put her on paid leave until the end of her contract.

“She was advised that her temporary contract would not be renewed,” Senior Member Drake said.

Afterwards, the woman wrote to the government to say, “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”.

She said she had been proud of being a public servant and working full-time but was now without a work placement and was reliving past trauma.

The government argued its actions did not constitute unlawful discrimination, saying she was paid out her contract and had already given notice of resignation for her new role. It also argued the woman’s criminal record was “relevant”.

Senior Member Drake said the woman had met her obligations of disclosure and Mr Rose had behaved properly, while when Ms Dreyer-White received the information from the Integrity Commission, she “immediately leapt into punitive action against the [woman]”.

“It was a quintessential knee-jerk reaction,” she said.

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She said the government did not have to offer an extension of the woman’s employment at the conclusion of her fixed-term contract.

“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,” the senior member said.

“At the very least, a meeting should have been had with the complainant and consideration given to the issues I have drawn attention to.”

The matter was adjourned to 22 February to determine the next steps.

The woman has also claimed the new role she had been offered had been denied to her due to her record, a claim that is progressing in separate proceedings.

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