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Introduction

Discrimination

AFT Article 2 September 2019

The Fair Work Act 2009 (Cth) (‘the Act’), sets out a floor or workplace rights or ‘general protections’ that employees, employers and organisations must abide by. In defining those rights, the Act describes protections to not only workplace rights, but also including protection from workplace discrimination, including providing relief to workers who have been discriminated against, or ‘adversely affected’ as a result of contravening those general protections.

This article will broadly cover what is and what is not unlawful discrimination and further, what type of action can be taken if unlawful discrimination has occurred in the workplace. The timing of when to commence an action will also depend on whether you have been dismissed from your workplace or whether you are experiencing discrimination at your workplace now. Knowing where to receive help, and what action you can commence on your own is important knowledge for you to be aware of.

If you find yourself in need of specific and detailed advice about a workplace discrimination issue, contact Anderson Fredericks Turner for a free case assessment.

What is Discrimination

In Queensland, discrimination is unlawful in accordance with the Anti-Discrimination Act 1991 (Qld). Discrimination is said to occur in a workplace where an employer treats an employee less favourable than another employee in the comparable circumstances.

You may be directly discriminated against, that is, that you because of a certain ‘attribute’ you have been treated less favourably against another employee who does not have that attribute. Alternatively, you might be indirectly discriminated against where a workplace policy or directive is made that while appears to be in favour of all, actually disadvantages someone because of a particular ‘attribute’.

Attributes that an employee may be unlawfully discriminated against are defined in section 7 of the Anti-Discrimination Act 1991 (Qld) to include:

(a) sex;

(b) relationship status;

(c) pregnancy;

(d) parental status;

(e) breastfeeding;

(f) age;

(g) race;

(h) impairment;

(i) religious belief or religious activity;

(j) political belief or activity;

(k) trade union activity;

(l) lawful sexual activity;

(m) gender identity;

(n) sexuality;

(o) family responsibilities;

(p) association with, or relation to, a person identified on the basis of any of the above attributes.

Of the above list of attributes, I have illustrated some examples of discrimination cases heard in Queensland Tribunals.

Discrimination against impairment?

For example, in a case before the Queensland Civil and Administrative Tribunal ([2019] QCAT 183) a school teacher alleged that direct discrimination had occurred against her on the basis that she had been treated less favourable on the basis of impairments, namely her condition of diabetes and a broken knee cap. The direct discriminatory conduct involved not assigning the teacher to ‘home economics classes’ for health reasons as they could not wear ‘closed-in shoes’ in the kitchen. The Tribunal held that no impairment discrimination had occurred and that while they acknowledged that a person might be poorly treated because of an injury or impairment they have, what they need to demonstrate is that they were ‘treated less favourably’ by their employer than a ‘non-impaired person’.

The take home message here is that while you might believe that you have a discrimination case, it is essential that you are able to show that you have been treated less favourably than another employee in comparable circumstances.

Related: Employment Law: Disciplinary ActionRelated: Employment Law: Disciplinary Action

Discrimination against sex, parental status and family responsibilities?

In an example before the Queensland Industrial Relations Commission ([2019] QIRC 99) the applicant alleged that they had been treated less favourably than a hypothetical comparator male employee, or an employee without children or family responsibilities. Essentially the less favourable treatment was against the employees’ sex, relationship status, parental status and family responsibilities which had resulted in the termination of their employment. The alleged behaviour resulted from the employer disciplining the employee for making a medical error that had caused ‘significant embarrassment’ to the employers professional practice and had the potential to have a serious impact on the medical clinic.

While the Tribunal held that the conduct of the employer could have been ‘softer or more circumspect’ it did not amount to sufficiently demonstrating that the employee had been treated ‘less favourable than any other comparator employee’. Nor was there any basis to demonstrate that this conduct would have been done so because the employee was female and was a single parent status.

On that basis the application was dismissed, and the application for costs brought by the employer was also dismissed.

Applicants need to beware that whilst they are responsible for bearing the costs of their application, they might find themselves in a situation where, upon the finality of the matter in a Tribunal, there may be an order for costs brought against them. While the in the above example, the Tribunal decided against the Applicant having to pay for the Respondents costs of litigation, litigants need to be aware that if their claim is vexatious, there is the possibility of a Tribunal awarding Standard or even Indemnity Costs for the Other party.

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Do you have a case of workplace discrimination?

Understanding what is and isn’t workplace discrimination, is key in determining whether you have an actionable claim to pursue, or not. Section 351 of the Act provides a definition of discrimination to be:

(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 orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

While the above provides a non-exhaustive list of the attributes which an employer cannot discriminate against an employee, the key phrase in the above definition is that the ‘employer must not take adverse action’.s.

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Unlawful discrimination and adverse action?

Section 342 of the Act sets out a table of circumstances where adverse action may be understood to have occurred. The relevant example here is in item 1, which states that an adverse action is taken by an employer against an employee in circumstances where the employer has either done, threatened or organised any of the following in the workplace:

(a) Dismissed the employee; or

(b) Injures the employee in the course of their employment; or

(c) Alters the position of the employee to their disadvantage; or

(d) Discriminates against one employee and another in the workplace.

However, the section goes on to state that adverse action has not occurred in circumstances where an employer stands down an employee who is engaged in:

(a) engaged in protected industrial action; and

(b) employed under a contract of employment that provides for the employer to stand down the employee in the circumstances.

Q: Failing to sign a contract – can adverse action be taken if dismissed?

In a 2017 decision before the Federal Circuit Court of Australia ([2017] FCCA 534) , the Fair Work Ombudsman pursued an application on behalf of a former employee of the Respondent employer. While primarily the application related failing to pay the employee owed entitlements for two (2) weeks of employment, an adverse action claim was pursued. The basis for the claim resulted from two separate instances where the employee had been threatened with termination should they not sign the employment contract, and termination of the employee on the basis that they would not sign the contract.

The court heard that the employee had refused to sign two (2) versions of employee contracts on the basis that the remuneration rates were lower than the National Minimum Wage. When the employee sought clarification of the employment contract, namely whether overtime was expected on top of the weekly wage of $760 per week, the employer terminated the agreement by stating that “technically you don’t’ work for us” and that the employment “was not working out”. They employer had also made misrepresentation as to the interpretation of the Industrial Award stating that the award was merely a ‘guideline’ and that industry practices governed remuneration of employees.

Ultimately, the court found that the Company employer and the individual Manager had contravened the Fair Work Act for threatening to terminate the employees employment and were both ordered to pay total penalty of $51,830 and $20,366 respectively for the part they played in the contraventions of the Act.

What can be gleaned from the above case authority, is that even though employment can be of a short duration – as in the above case of 2 weeks employment – employers cannot unlawfully discriminate against an employee for failing to sign a contract. If you believe that you have been unlawfully discriminated against by your employer, making a complaint to the Fair Work Ombudsman may result in litigation against your former employer.

What is not unlawful discrimination?

As mentioned earlier, an employer is not taken to be unlawfully discriminating against an employee in circumstances where the employee is engaged in protected industrial action and is subsequently stood down by their employer.

However, the Anti-Discrimination Act 1999 (Qld) also provides for a list of general exemptions on occasions where it is not unlawful to discriminate against another. Some examples where it is lawful to discriminate is as follows:

– Providing welfare services – such as offering travel concessions to aged pensioners;

– Promoting equal opportunities for a group of people – such as employing a person for a protected characteristic that was previously discriminated against;

– Adhering to legislative compulsory retirement age – such as Judges whom have a compulsory retirement age of 70 years ;

– From making a decision that is reasonably necessary to protect the health and safety of people at a place of work – such as refusing to hire a pregnant employee with high-risk health concerns, or perhaps employing a person with a criminal record.

How and where to bring an action for discrimination?

So far in the above examples, we have seen that an employee can bring an application against their former employer in the the Queensland Civil and Administrative Tribunal (QCAT) and the Queensland Industrial Relations Commission (QIRC) and lastly an action may be brought by the Fair Work Ombudsman.

Choosing where to start an application for workplace discrimination can be tricky and will vary on a case-by-case basis

The Australian Human Rights Commission

The Australian Human Rights Commission (‘AHRC’) is an avenue in which you may make an enquiry, or complaint of discrimination in your workplace. The Australian Human Rights Commission operates independently from all other commissions that primarily investigates complaints of about discrimination in the workplace based on religion, criminal record, trade union activity, sexual preference, political opinion, social origin as well as complaints of sex, race, disability an age.

The advantages of pursuing an action in the AHRC is that it applies to all Australia employees (compared with the Fair Work Commission that only covers National Recognised Employers), there are no costs associated with bringing an application, there are no limitations placed on the applicants financial position, and there are no capped limits of compensatory remedies. Further, an application must be brought within 12 months of the discriminatory event taking place.

A disadvantage of the complaint process is that should the AHRC find, after investigation of your complaint, that the application would have no reasonable prospects of success, they are within their powers do not proceed to conciliation and/or not issue a certificate or ‘notice of termination’. This then creates jurisdictional issues when applicants want to pursue action via other legal means.

The Fair Work Commission

If you have been dismissed by your employer, and you believe that you have been discriminated against, you may have grounds for an application for a contravention of general protections. There is a specific time limit of 21 days to lodge an application.

Should your employer argue that you were not dismissed, and instead suggested that you, as the applicant have left of your own accord, then the Commission can still hear the application by way of a conference, to assist the parties in mediating the dispute.

Alternatively, if you are an active employee, and you believe that discrimination has occurred int eh workplace, you may be able to pursue an application with the Commission. In these circumstances, the Commission will speak with both parties to see if the complaint can be resolved, however if the one party does not agree to resolving the dispute with the Commission, then an application may be made directly to a Federal Court.

Summary

This purpose of this article is to assist the reader in understanding what options might be available in starting an action for workplace discrimination. I find that each person will have their own personal thresholds of comfort levels when approaching any type of application of this nature.

Should you find yourself in a position where you believe you have been discriminated against in your workplace and need some assistance in navigating the best outcome for your personal needs, contact us at Anderson Fredericks Turner.

The information contained on this page is general in nature and specific advice ought to be obtained from a lawyer before acting on any general information with respect to any legal matter.

Anderson Fredericks Turner has lawyers across Queensland who can provide specific advice with respect to issues involving employment law, including for issues relating to written warnings. Our lawyers operate from local offices in Brisbane, Beenleigh, Maroochydore, Southport, Townsville, although we have the capacity to advise and represent people nationally.

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