WORKPLACE DISCRIMINATION AND HARASSMENT
Summary
It is unlawful for there to be discrimination or harassment in the workplace based on, amongst other things, race, colour, national or ethnic origin; sex, pregnancy or marital status; age; disability; religion; sexual preference; trade union activities; or some other characteristic specified under the legislation.
Discrimination occurs where one employee is treated less favourably than another employee.
Harassment occurs where an employee is intimidated, insulted or humiliated.
Discrimination is often direct. For example, an employee is not promoted because she is a woman. Discrimination can also be indirect. For example an employee has difficulty attending early morning meetings because of family responsibilities.
Motive or intention is irrelevant in deciding whether unlawful discrimination has occurred. It is the result that counts.
Not everything adverse that happens to an employee is discrimination or harassment. Employers have the right to direct employees and review their performances. The legislation also provides for specific exemptions to what is otherwise unlawful discrimination.
If an employee believes she has been the subject of unlawful discrimination or harassment she can seek redress from various bodies including the Australian Human Rights Commission or Fair Work Australia.
Nevett Ford can assist both employees and employers to deal with claims relating to workplace discrimination or harassment.
What is unlawful discrimination and harassment?
Discrimination in the workplace can relate to:
- A person not being employed in the first place;
- Whether a person is promoted or given opportunities for training;
- How work is allocated;
- The circumstances in which employment is terminated.
The discrimination can be direct or indirect. An example of direct discrimination is a more qualified and more experienced woman that not being offered a job over another less qualified or less experienced man. An example of indirect discrimination is a requirement that an employee attend regular early morning meetings, which is impossible or impractical for the employee to do as he has family responsibilities that mean he cannot be at work until a time later than the meeting has commenced.
Unlawful harassment occurs in a workplace when an employee is made to feel intimidated, insulted or humiliated because of his race, colour, national or ethnic origin; sex; disability; sexual preference; or some other characteristic specified under anti discrimination legislation.
Unlawful harassment in the workplace can relate to:
- Jokes that insult or deride particular racial groups;
- Sending unsolicited sexually explicit or suggestive emails;
- Displaying offensive or pornographic images;
- Taunting employees about their race or religion;
- Asking intrusive questions about employees’ personal lives, including their sex lives.
The guiding principle of the legislation that makes workplace discrimination and harassment unlawful is less favourable treatment.
Often this involves making a judgment about an employee. If the judgment is based on one of the grounds that the legislation specifies, then the discrimination is unlawful.
Whilst most acts of discrimination or harassment are the result of deliberate or intentional behaviour, the absence of a motive or intention to discriminate is irrelevant: it is the result that counts. So even if the employer “didn’t mean it”, it does not matter; doing or not doing something can still constitute unlawful workplace discrimination or harassment.
What is not unlawful discrimination or harassment
Employers are entitled to review and comment on an employee’s performance.
Sometimes this involves the expression of frank opinions relating to the employee’s standard of work. Employers need to handle such situations with sensitivity and discretion. At the same time, however, negative feedback to an employee is not necessarily an example of discrimination or harassment.
The legislation also provides exceptions to what might otherwise be discrimination.
For example the inherent requirement of the employment may mean that certain people cannot be employed or if they are employed that they bear the consequences of doing so. Therefore if it is made known to an applicant before she accepts employment that early morning meetings and after hours work are expected as part of the employment, she cannot complain afterwards when she is demoted or sacked that her work was affected by her family responsibilities.
What to do about unlawful discrimination or harassment
In Victoria a complaint can be made in writing to either the Australian Human Rights Commission or the Victorian Equal Opportunity and Human Rights Commission.
If termination of employment has occurred as a result of unlawful discrimination an application in relation to general protections can be made to Fair Work Australia.
A complaint to the Commission must be made within twelve months of the discrimination or harassment occurring. An application to Fair Work Australia where termination of employment has resulted must be made within 60 days where a breach of a general protection under the Fair Work Act 2009 is relied on.
The Commission appoints an officer to investigate the complaint, which includes obtaining a written response from the employer. If the Commission decides there is substance to the complaint it will convene a conciliation.
Fair Work Australia will also fix a general protections application for conciliation.
Conciliation is a confidential conference at which the parties may try to reach a resolution of their complaint.
Resolution may involve an apology, reinstatement of employment, a party agreeing to undergo an education or training program, the payment of compensation or a combination of all of these.
If conciliation does not resolve the dispute, a person who complains to the Victorian Equal Opportunity and Human Rights Commission may issue proceedings in the Victorian Civil and Administrative Tribunal and a person who complains to the Australian Human Rights Commission or applies to Fair Work Australia may issue proceedings in the Federal Magistrates Court or the Federal Court.
The remedies normally sought from the tribunal or the court are the payment of compensation or, as far as the courts are concerned, reinstatement of employment.
At Nevett Ford we have a team of experienced lawyers who can guide both employees and employers through the process of resolving a workplace discrimination or harassment claim.