What is workplace discrimination?
Discrimination under the Fair Work Act 2009 (Cth)
Unlawful workplace discrimination occurs when an employer takes ‘adverse action’ against an employee or prospective employee because of a personal attribute that is protected from discrimination:
- sexual preference
- physical or mental disability
- marital status
- family or carer’s responsibilities
- political opinion
- national extraction or social origin
These ‘general protections’ from workplace discrimination are set out in section 351 of the Fair Work Act 2009 (Cth), which relevantly states:
(1) An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
Note: This subsection is a civil remedy provision (see Part 4‑1).
(2) However, subsection (1) does not apply to action that is:
(a) not unlawful under any anti‑discrimination law in force in the place where the action is taken; or
(b) taken because of the inherent requirements of the particular position concerned; or
(c) if the action is taken against a staff member of an institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed–taken:
(i) in good faith; and
(ii) to avoid injury to the religious susceptibilities of adherents of that religion or creed.
The fact this law is a ‘civil-remedy provision’ means that corporations and individuals are liable to court-imposed fines for breaching the law, as well as other orders such as injunctions to stop discriminatory conduct, reinstatement or compensation orders for those affected.
Other anti-discrimination laws
The Commonwealth government has a number of anti-discrimination laws that operate across Australia:
- Age Discrimination Act 2004 (Cth)
- Disability Discrimination Act 1992 (Cth)
- Racial Discrimination Act 1975 (Cth)
- Sex Discrimination Act 1984 (Cth)
State and territory governments also have anti-discrimination laws that can apply to discrimination that occurs in a workplace context:
- Anti-Discrimination Act 1977 (NSW)
- Equal Opportunity Act 1984 (WA)
- Equal Opportunity Act 1984 (SA)
- Anti-Discrimination Act 1991 (QLD)
- Discrimination Act 1991 (ACT)
- Anti-Discrimination Act 1992 (NT)
- Equal Opportunity Act 1995 (VIC)
- Anti-Discrimination Act 1998 (TAS)
Anti-discrimination laws may be breached by discriminatory conduct in a workplace, even if it does not constitute ‘adverse action’ under the Fair Work Act 2009 (Cth). As such, a person who suffers discrimination may also seek redress in a human rights or anti-discrimination commission, such as the Australian Human Rights Commission (AHRC) or Queensland Human Rights Commission (QHRC).
Examples of unlawful discrimination
The term ‘adverse action’ is defined in the Fair Work Act 2009 (Cth) and includes an employer discriminating against an employee by:
- dismissing an employee;
- injuring an employee in his or her employment;
- altering the position of the employee to the employee’s prejudice; or,
- discriminating between the employee and other employees.
The following three examples of unlawful workplace discrimination and the financial consequences that can result are based on the concepts of ‘discrimination’ and ‘adverse action’ under the Fair Work Act 2009 (Cth):
- Discriminatory action based on pregnancy resulted in a $61,000 pecuniary penalty order against an employer, as well as compensation of $164,097 for loss suffered and $10,000 for distress, hurt and humiliation (Sagona v R & C Piccoli Investments Pty Ltd & Ors  FCCA 875).
- Dismissing an employee who was “always sick” resulted in a $16,500 pecuniary penalty against the employer, as it was found to constitute disability discrimination (Pavolvich v Atlantic Contractors Pty Ltd  FMCA 1080).
- Dismissing an employee who took carer’s leave to take his daughter to a doctor resulted in a $10,000 pecuniary penalty against the employer, as well as a $10,000 compensation order, as it was found to be discrimination based on family or carer’s responsibilities (Transport Workers’ Union of Australia v Atkins  FCCA 1553).
The above examples of unlawful workplace discrimination show the seriousness of employers acting contrary to the general protections of employees.
Who can be liable for discrimination?
Unlawful workplace discrimination under the Fair Work Act 2009 (Cth) covers most employers, employees, independent contractors, people who have entered into a contract for services with an independent contractor, and industrial associations. It also includes prospective employers, prospective employees, and people proposing to enter into a contract for services with an independent contractor.
This means that it is not just employers who can face discrimination claims for adverse action under the Fair Work Act 2009 (Cth), employees can also be liable for discriminatory acts against their employer in certain circumstances. Other anti-discrimination laws in Australia extend liability to companies and individuals in ways that are broader than unlawful workplace discrimination under the Fair Work Act 2009 (Cth).
Contesting unfair discrimination claims
When a person makes a general protections claim as a result of unlawful workplace discrimination under the Fair Work Act 2009 (Cth), it is presumed that the respondent took the action for the discriminatory reason or intent alleged unless the respondent proves otherwise. The rebuttable presumption is set out in section 361 of the Fair Work Act 2009 (Cth):
Reason for action to be presumed unless proved otherwise
(a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b) taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
(2) Subsection (1) does not apply in relation to orders for an interim injunction.
So, for example, if it is alleged by an employee that they were dismissed because they were pregnant, once the employee establishes that they were (1) dismissed, and (2) pregnant at the time, it is presumed the employer dismissed the employee for the reason alleged unless the employer proves otherwise. An employer may prove the dismissal was motivated by a valid reason by producing evidence, such as letters, notes, or other records.
While the rebuttable presumption may be thought to make it ‘easier’ for someone to make an allegation of unlawful workplace discrimination, the reality is it is the person who makes the decision (e.g. an employer who dismisses an employee) ought to have the knowledge as to why they took the action they did and are in the best position to produce evidence of it. It does mean that contesting unfair discrimination claims can be more burdensome for respondents than other types of claims because it is not only the applicant that may have to ‘prove’ facts.
What rights exist for respondents?
People do not always want to file a complaint with an anti-discrimination commission, human rights agency, or a court or tribunal. In some cases, complaints are raised as a grievance in the workplace, which may prompt a workplace investigation or disciplinary process.
The rights that exist for respondents to allegations of workplace discrimination may be influenced by industrial awards, enterprise agreements, employment contracts, as well as workplace policies and procedures. Responses may also be influenced or managed by professional or regulatory bodies. In the context of workplace investigations that may follow a grievance about alleged discrimination, respondents typically have rights relating to the following:
- procedural fairness
- reasonable accommodations
- employee support
- health and safety rights
- self-incrimination privilege
- confidentiality considerations
People may ask, what does an unfair investigation or disciplinary process look like ? Common concerns include:
- Bias or perceived bias from the investigator / decision-maker;
- Conflicts of interest between participants and the investigator / decision-maker;
- Failure to follow relevant policies, procedures and industrial instruments;
- Vague, unclear and unparticularised allegations;
- Changes to the allegations or investigation without explanation;
- Lack of transparency regarding the evidence gathered;
- Failure to disclose the workplace investigation report;
- Failure to give adequate notice before responses are required;
- Directions to not communicate with potential witnesses;
- Denial of access to a support person;
- Delays in progressing or finalising the investigation; and,
- Omission to investigate issues raised by a respondent.
If you are dealing with an allegation of discriminatory conduct and seek to obtain legal advice, contact Anderson Legal for a fixed-price initial consultation to get personalised advice about your situation.