According to its aptly titled 2012 report On the Record, the bulk of complaints in this context received by the Australian Human Rights Commission relate to discrimination in the recruitment process, followed by grievances surrounding dismissals. With pre-employment screening and security checks ubiquitous across the Australian Public Service, these concerns are of heightened relevance to government HR decision-makers.

Courtesy of the Australian Human Rights Commission Act 1986 and corresponding regulations, distinction, exclusion or preference on the grounds of a criminal conviction that "has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation" is considered discrimination. The ACT equivalent, meanwhile, prohibits discrimination on the grounds of a "spent conviction": convictions covered by a legislative scheme granting individuals a limited right of non-disclosure once a specified time period has passed. Although the Commonwealth is not bound by the latter, other Canberra-based employers must consider their obligations under both federal and ACT laws.

The relevant starting point in the APS is that discrimination on the basis of a criminal conviction could give rise to a complaint to the Human Rights Commision. Overlooking a job applicant or refusing to promote an existing employee on the grounds that they have a criminal record is potentially problematic.

The legislation does, however, provide an important caveat: discrimination does not include distinction, exclusion or preference based on the "inherent requirements" of the job. This exception allows an employer significant scope to hire and fire with due regard to a criminal record where that conviction prevents the applicant or employee from properly fulfilling the position's core duties.

The 2012 case of Mr CG v State of NSW (Rail Corporation NSW) is an interesting illustration of these principles. Mr CG had two previous drink-driving convictions when he applied for a market analyst position at RailCorp. Despite being the selection panel's preferred candidate, he was not offered a job "because of his criminal record". Mr CG complained to the commission, and RailCorp relied on the inherent requirements exception in its defence.

After considering the factual circumstances and drawing on High Court authority that inherent requirements are those "characteristic or essential requirements of the employment as opposed to those requirements that might be described as peripheral", the commission's then president, Catherine Branson, found for the complainant. With regard to a range of supporting factors, particularly that the offences had no connection with employment, she held: "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."

Mr CG's victory was largely pyrrhic, though, with the commission's lack of coercive powers very much on display. Branson recommended that RailCorp pay $7500 in compensation, yet RailCorp refused, maintaining it had not discriminated and attacking Mr CG's "lack of candour during the employment application process" (he had failed to disclose one of his convictions). Although it would undoubtedly be embarrassing for a Commonwealth agency to be put in a similar position, ultimately they cannot be compelled to obey commission recommendations. And, of course, people who are dishonest in the recruitment vetting process may be in breach of the APS code of conduct.

While these particular discrimination complaints are one avenue of redress for an aggrieved former employee or rejected job applicant, the commission's toothless nature in this area of its jurisdiction means that many may instead look to employment law remedies. However, Fair Work Act general protections provisions (accessible to both employees and prospective employees) do not include criminal conviction as a protected attribute. Only employees can therefore turn to industrial legislation for help, and even then only to unfair dismissal remedies.

In this regard, the relevant question will be whether the termination of an employee after their conviction and/or the discovery of a previous conviction was harsh, unjust or unreasonable. Although this assessment will be highly fact-specific, a 2010 Fair Work Commission decision provides guidance.

In Leigh v Nestle Australia, a casual employee, Steve Leigh, was no longer offered work after being convicted of several harassment-related offences, some of a sexual nature, including "the forwarding of pictures of a penis to a female at her place of work". Leigh contended that his employer's knowledge of the convictions (which, at the time of hearing, he was appealing against) led to his effective termination.

Senior Deputy President Lea Drake began by warning: "There is no general presumption that a criminal conviction is a valid reason for termination of employment. It is a matter to be decided on the facts of each case. The nature of the employment, the role of the employee and the nature of the offence are all relevant." While Drake was satisfied that the convictions were "a valid reason for the termination", in this case she nevertheless concluded that the dismissal was "harsh, unjust and unreasonable".

Particularly, it was held that Leigh should have been given an opportunity to respond to his employer's concerns and alert it to any mitigating factors. Drake also suggested that, with an appeal pending, it would have been more appropriate to suspend Leigh and then terminate his employment if the convictions were upheld.

Both Mr CG and Leigh highlight the importance of considering situations on their merits, and not applying a blanket rule to job applicants and/or employees with criminal records. Minor convictions incurred in the distant past should not tarnish an otherwise capable current or prospective employee, and legal liability may well follow where it does.

John Wilson is the managing legal director at Bradley Allen Love Lawyers and an accredited specialist in industrial relations and employment law. john.wilson@bradleyallenlove.com.au