25 Oct 2022
Libby Pallot, Walter MacCallum, Anthony Massaro, Rima Newman, Ben Tallboys, Abbey Burns, Kelly Ralph, Natasha Sim, Ashleigh Warren, Morgan Smithe, Emily Tang and Bianca Saltzman
The recent controversy surrounding the appointment of Andrew Thorburn as the Chief Executive Officer of Essendon Football Club highlights some of the difficulties employers may face in recruitment.
Background
On 3 October 2022, Essendon Football Club announced the appointment of Mr Thorburn as its new CEO. This resulted in public outcry when it was discovered that Mr Thorburn was also the Chair of City on a Hill, a church associated with the Anglican denomination. Sermon recordings on City on a Hill’s website included a statement that “practising homosexuality is a sin” and statements equating abortion to legalised murder.
On 4 October 2022, Mr Thorburn resigned from the role. The Club issued a statement that “this is not about vilifying anyone for their personal religious beliefs, but about a clear conflict of interest with an organisation whose views do not align at all with our values as a safe, inclusive, diverse and welcoming club for our staff, our players, our members, our fans, our partners and the wider community”.
As a result of these events, Essendon Football Club’s recruitment and candidate vetting processes have been criticised. Many have wondered why the Club did not identify the issue, or ask questions about Mr Thorburn’s association with the church earlier on.
A number of commentators have also expressed concerns that individuals who are associated with faith-based organisations may be barred from holding leadership positions in the wider community for similar reasons.
Employers’ obligations in recruitment
This matter highlights the need for employers to strike a balance between protecting their organisational values and complying with their legal obligations in recruiting employees.
Employers are entitled to seek to hire individuals whose conduct aligns with the employer’s values. Generally, during the recruitment process, employers are allowed to ask questions that go to whether a candidate understands and can uphold those values. This is particularly important when an employer is hiring for a leadership position.
However, employers must also take care to comply with their obligations under anti-discrimination laws when hiring new employees.
At a federal level, the Fair Work Act 2009 (Cth) prohibits employers from discriminating against job applicants on the basis of the applicant’s religion. Similarly, at a state level, the Equal Opportunity Act 2010 (Vic) prohibits employers from discriminating against a job applicant on the basis of “religious belief or activity". There is also a prohibition on requesting information from job candidates which could be used to form a basis for unlawful discrimination.
Further, while there is no protection against discrimination on the basis of religious belief per se in the Anti-Discrimination Act 1977 (NSW), employers in New South Wales must not discriminate against job applicants on ethno-religious grounds (e.g. due to an applicant’s status as a Muslim, Sikh or Jew).
A breach of these obligations may allow an unsuccessful candidate to make a claim for compensation against an employer.
Lessons for employers
Employers should take this opportunity to review their recruitment processes for compliance with relevant laws, as well as ensuring that they undertake adequate due diligence with candidates. In particular, employers should ensure that interview questions relate to either the candidate’s ability to perform the duties of the role or to uphold the organisation’s values.
Unless a person’s faith is a central requirement of the role, employers should avoid asking questions about a candidate’s faith.
How we can help?
If you need any advice on this issue, contact a member from our Workplace Relations, Employment and Safety team.
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