Employment law is a complex area of law and there are many laws relating to employment which can be overwhelming for both employers and employees.
The law surrounding discrimination in the workplace can be tricky to correctly interpret so we recommend both employers and employees seek the assistance of specialised employment lawyers (or workplace lawyers) who can assist with all employment law matters, particularly workplace disputes.
This article covers some of the basic principles regarding workplace diversity, discrimination and dismissal which are so often intertwined.
Laws protecting diversity in the workplace
The laws protecting diversity in the workplace in Queensland and New South Wales include:
- the Age Discrimination Act 2004;
- the Disability Discrimination Act 1992;
- the Racial Discrimination Act 1975;
- the Sex Discrimination Act 1984;
- the Fair Work Act 2009;
- the Anti-Discrimination Act 1977 (NSW); and
- the Anti-Discrimination Act 1991 (QLD).
The Fair Work Act 2009 takes into account the remainder of the anti-discrimination legislation set out above in the context of the workplace. In particular, the laws which are referred to as ‘general protections’ laws.
Discrimination and employment laws
The general protections laws make it illegal to take adverse action against an employee, or prospective employee, because of a protected attribute.
The protected attributes include a person’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
There are a variety of actions which are considered ‘adverse action’, including:
- injurious treatment (e.g. reduction of rank or reduction of pay);
- altering the employee’s position to the employee’s prejudice; and
- discriminating between the employee and other employees.
Discriminating between employees can sometimes be hard to detect and hard to prove. For example, the Australian workplace drug testing laws make it legal to drug test certain employees at certain times, but employers should not discriminate when selecting who to drug test.
Favouritism in the workplace may also be considered as adverse action and the legality of it depends on the reason the person is being favoured (e.g. favouring a person due to their sex is illegal). Favouritism can also work in reverse such as in the case of an unfair demotion.
The general protections also prohibit employers from taking adverse action against an employee because the employee has exercised a workplace right. There are many workplace rights that employees have, including the right to take sick leave or to make a formal complaint to the employer. Often, the employer could be unaware that their actions are viewed by the employee as taking place as a result of them exercising a workplace right. A common example of this is an employee feeling that they missed out on something at work because they took sick leave. It may be that the employer has not considered that and has assigned the task to another employee for other reasons, but these types of miscommunications can result in costly general protections claims.
Employment law harassment and bullying
The laws against harassment in the workplace can also be encompassed in the realm of discrimination if the person is being harassed as a result of a one of the protected attributes.
Whether the harassment is a result of one of the protected attributes has bearing on general protections claims but, even where it is not for one of those reasons, there are anti-bullying orders which can be obtained from the Fair Work Commission where appropriate.
Employment law wrongful dismissal
As workplace lawyers, the most common employment disputes we see are when an employee has been dismissed. Often times, the employee believes they have been dismissed because of one of the protected attributes or because they exercised a workplace right. Although it is possible to make a claim for Unfair Dismissal, claims under the general protection laws are often more appropriate and have the ability to yield a higher amount of compensation for the employee.
Upon application, the Court or Fair Work Commission has the ability to:
- Order that the employment be reinstated (including an order for lost wages for the period between dismissal and reinstatement);
- If reinstatement is inappropriate, give an order that the employee be paid compensation; and/ or
- Other appropriate orders.
There is no maximum compensation for general protections claims and employees may also claim compensation for hurt, humiliation and distress (if applicable).
Employers should also be aware of the penalties that they may be subject to for breaches of the Fair Work Act 2009, which can be as high as $63,000 per breach.
If you are an employer and an employee has made an employment related claim against you, it is vital that you seek immediate advice from workplace lawyers who can assist you to fulfill your obligations your employees, avoid claims by employees and avoid heavy penalties.
If you are an employee and your employer has taken adverse action taken against you that you feel is wrong or discriminatory in some way, it probably is. If you’d like to know your rights and what you can do about the way you have been treated, contact a workplace lawyer for some initial advice. Be aware that time frames apply so it is important to get advice as quickly as possible.