Today’s question is not really an emergency law question even if the employee is looking to join, or rejoin, one of the emergency services. IT’s an employment law question so somewhat out of my scope but I’ll give some brief thoughts. The question is:
What is the legal status of an organisation, such as [a non-government emergency service] creating a blacklist of ex-employees or failing to re employ ex-employees, is this discrimination? Is an organisation required to indicate why they consistently fail to shortlist or employ people despite meeting selection criteria and qualifications for a position advertised?
To discriminate is to make a choice – it is ‘recognition and understanding of the difference between one thing and another’. Employers discriminate between candidates every time they create a merit list of potential employees and some are ranked lower than others and some are considered ‘not appointable’. Discrimination per se is not illegal. Discrimination, making a choice, based on some irrelevant grounds is. Those grounds, under Commonwealth law, are: race, sex, disability and age (see Racial Discrimination Act 1975 (Cth); Sex Discrimination Act 1984 (Cth); Disability Discrimination Act 1992 (Cth); and Age Discrimination Act 2006 (Cth)).
These grounds, and others, are also reflected in state and territory legislation: Discrimination Act 1991 (ACT) (which includes a prohibition on discrimination on the grounds of ’employment status’); Anti-Discrimination Act 1977 (NSW); Anti-Discrimination Act 1992 (NT); Anti-Discrimination Act 1991 (Qld); Equal Opportunity Act 1984 (SA); Anti-Discrimination Act 1998 (Tas); Equal Opportunity Act 1984 (WA).
One would need to look at those state and territory Acts in detail to see if one could frame an argument, but I wouldn’t be confident that is going to work. Employers have to discriminate and the fact that a person has proved themselves as ‘not a good fit’ is surely something that cannot be ignored. If it had to be ignored, a person could be sacked, resign in a huff or disgrace on Friday, and reapply for their job on Monday; but no-one could seriously argue that their past behaviour had to be ignored.
Some legislation such as the Human Rights Act 2004 (ACT) provides for a ‘right to work’. It says (s 27B(1)) that ‘Everyone has the right to work, including the right to choose their occupation or profession freely. The practice of a trade, occupation or profession may be regulated by law’. But a person’s right to work in their chosen trade or occupation does not give rise to an obligation in someone else to employ them.
In thinking of this answer I looked a number of websites
- HR Advance; Recruitment: Summary for Employers
- Australian Public Service Commission Recruitment: Guidelines
- Personnel Today; How Do Recruiters Choose the Best Candidates?
- Fair Work Ombudsman; A guide to hiring new employees
None of those suggest a legal obligation against identifying that someone who used to work in a business should not work there again for whatever reason. And of course, a candidate may think they are perfect for the job with skills ‘meeting selection criteria and qualifications for a position advertised’ but it doesn’t mean the recruiter’s see their CV, or their application, in the same way.
This question is not an emergency law question. It’s an employment question. The fact that the employer is a private provider of emergency services does not change that fact. I answered it out of courtesy and because writing to explain why I couldn’t answer it took as much work as writing this answer. For a definitive answer however the question has to be directed to an employment lawyer but from what I have been able to find I would suggest that, at least in the private sector an employer is entitled to employ whoever it thinks is the best candidate provided they do not discriminate on prohibited grounds.
Discriminating on the basis that the person is on ‘a blacklist of ex-employees’ or is a former employee would not appear to be such discrimination and would not, therefore, be unlawful. Further I can see no legal obligation that requires a potential employer to ‘indicate why they consistently fail to shortlist or employ people despite meeting selection criteria and qualifications for a position advertised’.