Job applications – be wary of what you ask for

In an informative decision for employers, the Queensland Civil and Administrative Tribunal found that Woolworths’ online job application was discriminatory by requiring prospective employees to provide their gender, date of birth and to establish their right to work in Australia.

In Willmott v Woolworths Ltd [2014] QCAT 601, the content of Woolworths’ online job application was scrutinised after a job applicant made a complaint about having to complete mandatory fields in the form which he considered to be discriminatory.  The job applications could not be submitted until all mandatory fields had been completed by the candidate.

The Applicant’s case

Mr Willmot argued before the Tribunal that it was unnecessary for Woolworths to ask questions about his date of birth and gender, and further, that it was unnecessary for it to ‘require him to provide the documentary information to prove his right to work in the initial online application, which would require him to upload confidential information’. 

Mr Willmot claimed that the information that Woolworths required to establish his right to work in Australia would also breach discrimination legislation by providing unnecessary information about his age and gender.

The response by Woolworths

By the time the hearing took place, Woolworths had made some changes to its online form.

However, Woolworths still argued that the ‘information sought by it in the online application was reasonably required by it so it could comply with its obligations as a potential employer and also to comply with Commonwealth legislation’. 

Woolworths argued that the date of birth requirement was necessary as some positions could only be performed by persons aged 18 years or older.

It argued that this was also relevant to determining what prospective employees might be paid, given the reduced pay rates that can apply to junior employees.  Further, Woolworth’s said that given the enormous size of its workforce, the information allowed it to differentiate between employees of the same name.

Woolworths also ran the argument that the gender information was required so that it could comply with the national workplace gender reporting requirements.

In terms of collecting the ‘right to work’ information it referred to the Migration Act and the requirement that employer’s not employ ‘unlawful citizens’.

Woolworths utilised these reasons as the basis of its defence pursuant to section 124(3) of the Anti-Discrimination Act 1991 (Qld) which provides:

“It is a defence to a proceeding for a contravention of subsection (1) if the respondent proves, on the balance of probabilities, that the information was reasonably required for a purpose that did not involve discrimination.”

Findings of the Tribunal

Senior Member Richard Oliver said that in relation to the request for the Applicant’s date of birth, ‘a simple question on the form asking if the applicant is over 18 would probably suffice, together with an explanation on the application form as to why the question was being asked and why an answer was necessary’.

The Senior Member considered that framing a query in that manner would have allowed Woolworths to access the section 124(3) defence.

The Senior Member said that the justification from Woolworths that it required the information to determine entitlements was not accepted as that information was not necessary until a position was offered or at least when discussing with the applicant the entitlements associated with the position.

In terms of the request for the gender of applicants, the Senior Member considered the Commonwealth’s workplace gender reporting requirements.  The Senior Member rejected the argument that the reporting requirements required an employer to obtain this information from all prospective employees.  He stated that ‘[i]t is reasonable to supposed (sic) that the name of the applicant could, in many cases, give an indication of gender from which Woolworths could make a reasonable estimate of the gender of the applicant for the purposes of complying with the WGE instrument.”

The Senior Member rejected Woolworths’ reliance on the Migration Act to justify the request for particular documents from applicants containing the confidential information of the applicants.  On this issue, the Senior Member stated:

“Again, the sensible approach now taken is to simply ask an applicant to nominate the basis upon which an applicant has a right to work in Australia. Then, if an interview is undertaken, the relevant documentation can be produced for sighting by a recruitment officer. This avoids the result that thousands of documents containing confidential information remain stored in Woolworths’ database, or I suppose ‘the cloud’.”

Finally, the Senior Member rejected Woolworth’s argument that the Anti-Discrimination Act 1991 was inconsistent with the Commonwealth’s Migration Act or Privacy Act. 

Compensation

In determining damages to be awarded to Mr Willmott, the Senior Member made the following comments:

“Mr Willmott’s evidence on how the actions of Woolworths have affected him is rather limited. He said in his statement that he was ‘sickened beyond belief’ at Woolworths disregard for the anti-discrimination laws in Australia. I infer from this statement that he was embarrassed and humiliated in being compelled to provide the offending information before his application could progress.

Because of this, he did not proceed with the application and therefore was not considered for the position. He is a local resident of the community in which the position of console operator was advertised and he believes he would have had prospects of being successful. He submits, therefore, he has suffered financial loss.”

The Senior Member noted that Mr Willmot did not provide any evidence that he had applied for any other position or any evidence on which he could approximate a value of his loss.  The Senior Member contemplated that compensation could only be limited to the loss of a chance that he may have been successful in his application.  The Senior Member therefore awarded Mr Willmott $5,000 in compensation for loss of the chance to be employed as well as for hurt and humiliation suffered as a result of the discrimination.

Lessons for Employers

This decision should serve as a useful reminder for employers to review their pre-employment processes and, in particular, whether their job application forms or even interview questions contain any requests for information that may be considered discriminatory by job applicants.

Undoubtedly, a well-drafted job application form is a great tool to assist employers to make initial decisions about the suitability of job candidates.  However, care needs to be exercised in relation to the content of the information requested.

Aitken Legal regularly reviews pre-employment documents for our clients and we are happy to assist you with getting this important step of the pre-employment process right.