Discrimination considers when a person is treated less favourably in the workplace. It is in unlawful conduct towards another person. Discrimination can be direct – where a person is treated less favourable because of attribute, or indirect – where a term, condition or practice is imposed in the workplace that is unreasonable to certain persons.
Discrimination can be based on a person’s sex, religion, disability, parental status, age, family responsibilities, political or religious beliefs, trade union activities or pregnancy.
In the workplace an employer must not discriminate in relation to the arrangements for work, who should be offered work, the terms of that work, denying access to training/promotion or by dismissed a person based on an attribute.
Federal and State based laws that prohibit discrimination in the workplace, including the Fair Work Act, Sex Discrimination Act, Disability Discrimination Act, Racial Discrimination Act, Age Discrimination Act and the Anti-Discrimination Act (NSW). In the federal jurisdictions the Australian Human Rights Commission (AHRC) conciliations discrimination complaints.
A person discriminated at work should consult the workplace policies to lodge a complaint. However, this is not always practicable or appropriate. In those circumstances, you should seek legal advice. We often see complaints lodge with the Australian Human Rights Commission or state based tribunals.
The focus is to resolution of the dispute whether by adjustments in the workplace or by way of the payment of compensation. The AHRC cannot order compensation or other workplace adjustments. In the event the parties to do reach agreement, the AHRC will normally issue a Notice of Termination of the complaint.
Court proceedings cannot normally be commenced in a Federal Court until the AHRC has issued the Notice of Termination. Court based actions must be lodged within 60 days of the issue of the notice with payment of the lodgement fee (unless an exemption applies).
In the Court management process parties will be required to attend mediation (or other alternative dispute resolution) before any final hearing.
In the Court proceeding the person bringing the complaint will need to establish what happened to them, what statute they rely on, how was the conduct unlawful discrimination and what damages they suffered. The Court has wide powers to order compensation or require the employer to stop the discrimination or do something to address the complaint.
The defence to each type of discrimination can vary slightly. However, the primary defence to an unlawful discrimination claim is that the employee cannot undertake the inherent requirements of their role or genuine occupational requirement. In relation to disability discrimination, you must also consider whether a reasonably adjustment can be made to the workplace and whether the employer will suffer unjustifiable hardship. Evidence needs to be lead for the defence to be successful.
This Court has the power to orders costs in your favour or against you if you lose. Therefore, it is always important to obtain legal advice about your claim before you commence proceedings and the best course of action.
At Burke Mangan Lawyers we bring many years of experience and understanding of the Discrimination Legislation and the Fair Work Act to successfully protect the interests of employers and employees in relation to discrimination. We have a proven track record to obtain you the right outcome.
General Workplace Protection Claims
In Australia this refers to the protection of employees against adverse actions, such as dismissal or discrimination, that are taken by their employer for exercising a workplace right or engaging in certain activities, as outlined in the Fair Work Act.