Workplace Discrimination
Advice for Employees
Are you a worker and believe you are being discriminated against, harassed or bullied while at work?
The law in relation to discrimination, harassment and bullying in the workplace is complex and constantly evolving. Since November 2023, with the introduction of a code of conduct on managing psychosocial hazards at work in most Australian jurisdictions, workplace regulators are particularly focused on these risks to a workers’ psychological health. In addition, workers have the ability to bring claims in respect of discrimination, harassment and bullying in various jurisdictions, including in the federal courts, the Australian Human Rights Commission, State and Territory anti-discrimination tribunals and the Fair Work Commission. As well as the reputational issues that may result from a discrimination, harassment or bullying complaint, there are also potential work health and safety implications if these issues are not managed appropriately.
MV Law’s employment lawyers are experienced in all aspects of psychosocial health in the workplace, including the particularly complex discrimination laws, work health and safety laws and workers compensation laws. Having acted for both employers and employees in these matters, our employment lawyers have a unique insight into how these matters are best resolved. We can assist you to understand your rights and obligations, assist you to resolve concerns at the workplace level or represent you in a claim brought by or against you. Our support will help you every step of the way in attempting to reach a satisfactory resolution and help reduce the stress associated with these matters.
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Workplace Discrimination Advice for Employees
Workplace discrimination in Australia refers to unfavourable or less favourable treatment of a worker, employee, or job applicant because the person has a particular characteristic that is protected under discrimination law (a protected attribute), which include sex, sexual orientation, gender identity, age, disability, and family or carer responsibilities. Discrimination in the workplace may also occur when a worker is treated the same as others, but such treatment inadvertently causes detriment to the worker because the worker has a protected attribute.
Workplace discrimination can occur whenever a worker or job applicant is treated less favourably than others in the workplace, including when a person’s job application is rejected, when they are overlooked for promotion, when they are denied an opportunity offered to others in the workplace, when their employment is managed through performance processes and workplace investigations and when the person is fired. If these circumstances occur because the person has a particular characteristic that is protected under discrimination law it is likely that the decision will amount to unlawful discrimination.
If you feel you have been mistreated at work for reasons that are not related to poor performance or bad behaviour at work, you may have a claim. This claim may involve discrimination if part of the reason for mistreating you is your background or other personal attributes, such as your disability, caring responsibilities, age or sexual preferences.
Yes, you can. While it may be daunting taking legal action against your boss, your boss must not further mistreat you because you make a complaint or commence a claim. Further, some related claims, such as a stop-bully claim in the Fair Work Commission, require you to remain employed for the duration of the claim.
No. The Fair Work Act prohibits an employer from mistreating an employee because the employee exercises a workplace right. If you make a discrimination complaint against your employer or someone else in your workplace, you are exercising a workplace right, and your employer cannot dismiss you or take any other action that causes you detriment because you have done this.
The amount of compensation available to you if your workplace discrimination claim is successful depends on the harm you have suffered because of the discrimination. This could include compensation for economic loss, such loss of income and increased medical expenses. You are also able to claim non-economic loss, which is compensation for hurt, humiliation and distress. Non-economic loss can amount to tens of thousands of dollars, depending on the extent of the discrimination and the impact on you. Some jurisdictions have caps on the amount of compensation that can be awarded. For example, under the NSW Anti-Discrimination Act 1977, the NSW Civil and Administrative Tribunal (NCAT) may award up to $100,000 in damages for economic and non-economic loss. However, there may be other non financial remedies awarded, such as orders requiring re-employment, orders prohibiting the employer from engaging in further discriminatory acts and orders requiring policy changes or the implementation of programs to eliminate discrimination.
The amount of time you have to make a claim depends on the jurisdiction (ie where) you bring the claim. For example, in NSW there is no set timeframe (otherwise known as a ‘limitation period’) however a complaint may be declined if the conduct complained of occurred more than 12 months before the complaint is lodged. Under Federal anti-discrimination laws, complaints should be lodged in the Australian Human Rights Commission (AHRC) within two years of the alleged discrimination. If that complaint is not settled in the AHRC, you have 60 days from when the AHRC terminates your complaint to commence court proceedings.
In the ACT, complaints should be lodged in the ACT Human Rights Commission (ACTHRC) within two years, otherwise the ACTHRC may close the matter, subject to exceptions for good reason. Despite these statutory timeframes, the Commissions and Courts retain discretion in appropriate cases to allow late applications in special circumstances, considering factors such as length of delay, reasons for delay, and potential prejudice to the respondent.
The Australian Human Rights Commission and the various state human rights commissions
Each Australian state and territory has a body that deals with discrimination complaints. They are:
Australian Capital Territory – ACT Human Rights Commission
New South Wales – Anti-Discrimination NSW
Queensland – Queensland Human Rights Commission
South Australia – Equal Opportunity SA
Tasmania – Office of the Anti-Discrimination Commissioner
Victoria – Victorian Equal Opportunity and Human Rights Commission
Western Australia – WA Equal Opportunity Commission
Northern Territory – Northern Territory Anti-Discrimination Commission
In addition, complaints under Federal anti-discrimination laws are commenced in the Australian Human Rights Commission. These federal laws apply throughout Australia in addition to their state/territory equivalents, so it is important for a complainant to choose the most appropriate law and forum before commencing their complaint.
Each of the bodies that deal with discrimination complaints are set up to be less formal and more accessible than courts. This means that a complainant can lodge and manage their discrimination complaint without a lawyer. However, discrimination law is very technical, and complaints often need to be carefully drafted to establish that all of the elements of a valid discrimination claim are present. These complaints can also be multifaceted, involving multiple provisions under the relevant law. It is also important to carefully consider where to commence your claim and remember that the complaint may need to progress to a court. Therefore, it is recommended that you at least get some preliminary legal advice before you commence your claim. The right employment lawyer on your side can be an important ally in a discrimination claim, even if they simply guide you in the background as the process progresses.
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