Employers in Australia have a range of responsibilities to their staff.
- Providing a safe working environment.
- Offering adequate training.
- Providing necessary equipment to perform their employment duties.
- The right to do their job free of discrimination, bullying or harassment.
Discrimination law can be a very tricky area to navigate and is often misunderstood. As an employer, it is important that you understand what is (and isn’t) workplace discrimination. This will help you avoid unlawful action without preventing you from making necessary business decisions.
What is workplace discrimination?
Workplace discrimination is when an employer takes adverse action against an employee based on certain prescribed attributes of the employee. These attributes are:
- sexual orientation;
- physical or mental disability;
- marital status;
- family or carer’s responsibilities;
- political opinion; and
- national extraction or social origin.
What is adverse action?
Adverse action is defined in the Fair Work Act 2009. It occurs where an employer threatens, organises or actually does any of the following:
- Dismisses an employee.
- Injures an employee in the course of their employment.
- Alters an employee’s position to their detriment (for example, demoting them).
- Refuses to employ a prospective employee.
- Discriminates against a prospective employee on the terms and conditions of their employment.
- Discriminates between one employee and others.
If the action is taken due to one of the attributes listed above, it is deemed an unlawful discrimination.
What is an employee?
For the purposes of discrimination law, the term ‘employee’ includes:
- Full-time, part-time and casual employees;
- Probationary employees;
- Individuals employed for defined periods or certain tasks; and
- Prospective employees.
What is not deemed discrimination?
Unlawful discrimination does not apply if the adverse action is not based on one of the listed attributes.
Sometimes, an employer will need to treat one employee differently. A worker with performance management issues, for example, might need to be supervised more closely. Sometimes you may need to reassign duties or reduce the workload of a particular employee. Or a candidate for a job may have fewer qualifications than his or her competitors but still might be the best choice for the role.
However, while some action might not be deemed discriminatory, it might still be construed as bullying or harassment. An employee who experiences bullying or harassment, that is not linked to one of the prescribed attributes, may have a valid work health and safety claim.
What happens if I face a discrimination claim?
An employee who believes they have been discriminated against can lodge a claim with the Fair Work Commission and/or Fair Work Ombudsman.
An investigation will be launched and if Fair Work finds there to be evidence of discrimination, you may face enforcement actions. These actions can include financial penalties of up to $66,600 for a corporation or $13,320 for an individual. The court may also make orders for reinstatement of employment, compensation or other restitution.
If an employee lodges a claim against you, seek legal help as soon as possible. It is important that you can show a non-discriminatory reason for your action (or prove that the alleged action did not occur).
You may also want to get in touch for advice on other employment issues. Many employers benefit from guidance on how to develop their employment policies. This is especially true for issues around performance management and professional development. A proactive approach can help you avoid the appearance of discrimination should it arise down the track.
If you are facing a discrimination claim or want help with your employment procedures, get in touch with us on (03) 9592 3356 or via email at firstname.lastname@example.org.