Workplace Safety Claims & Discrimination

As an employer, you must not treat any person in your business, including your customers, your employees, other workers or any job applicants, unfavourably or less favourably because they possess particular characteristics that are protected under discrimination law (protected attributes). Protected attributes include a person’s sex, sexual orientation, gender identity, age, disability, and family or career responsibilities. This obligation includes ensuring that your policies and practices do not disadvantage people with a protected attribute because of that protected attribute.

There are also some positive duties that apply to employers to prevent discrimination in the workplace. You must take proactive reasonable and proportionate measures to prevent workplace sexual harassment. Employers in the ACT are also under the additional positive obligations to eliminate discrimination and unlawful vilification in the workplace and, on a case by case basis, to make reasonable adjustments to accommodate another person’s particular needs arising from a protected attribute, for example, reasonable adjustments that allow a worker with disability to successfully perform their job.

Employers should implement, follow, monitor and enforce one or more policies that outline unlawful behaviour under the various applicable discrimination laws.  This might include one Workplace Behaviour Policy, which demands respect for all people in the workplace, including staff, contractors and customers. This can encompass the various obligations on the employer and its workers to refrain from discrimination, harassment, sexual harassment, vilification and victimisation. Alternatively, an employer may wish to adopt an Anti-Discrimination Policy (which covers vilification and victimisation) and a separate Anti-Harassment Policy (which specifically covers sexual harassment).

Yes. Employers can be held liable for workplace discrimination under both federal and state or territory anti-discrimination laws in Australia. Such liability may arise in two main ways: direct liability, where the employer itself discriminates, and vicarious liability, where an employer is held responsible for discriminatory acts committed by its employees or agents in the course of their employment. For example, the Sex Discrimination Act 1984 (Cth) imposes liability on employers for acts of discrimination or sexual harassment by employees or agents done “in connection with their employment”, unless the employer proves it took all reasonable steps to prevent the conduct.

Employers who take proactive steps to reduce discrimination in their workplace are less likely to be held liable for the discriminatory acts of their employees or other workers. They should implement, follow, monitor and enforce anti-discrimination or workplace behaviour policies (aimed at preventing all forms of discrimination, including harassment, sexual harassment, racial vilification and victimisation), organise regular anti-discrimination training, ensure that staff have access to an internal mechanism to make discrimination complaints, manage discrimination complaints swiftly and appropriately, and document each of the steps taken to proactively manage the safety of their workplace.

Employers should deal with discrimination complaints swiftly and appropriately and in accordance with all relevant workplace policies. This will usually require an investigation into the alleged conduct, so that the employer can properly substantiate the alleged behaviour before taking any adverse action. Prior to commencing the investigation, the employer should check the employment contract of the complainant and the person complained about, as well as any applicable award or enterprise agreement or relevant policy, and ensure that the investigation is conducted strictly in accordance with those documents. The investigation must also be conducted appropriately, ensuring procedural fairness for the person alleged to have acted in a discriminatory manner. Before the employer takes any adverse action, the investigation must establish that it is more likely than not that the behaviour complained of took place and any response taken to manage the behaviour must be proportionate to the behaviour, while ensuring a safe workplace. If the employer wishes to keep the investigation report confidential, they should engage an employment lawyer prior to engaging the investigator, as any investigation report requested by the lawyer (rather than directly from the employer) is likely to be covered by legal professional privilege.

Yes. An employee may bring a claim for discrimination in the workplace while still employed. You must not take adverse action against an employee because they make a discrimination complaint or commence a claim. Further, some related claims, such as a stop-bully claim in the Fair Work Commission, require the employee to remain employed for the duration of the claim.

Employers in Australia who breach workplace discrimination laws may face a range of legal consequences, which can include civil penalties, compensation orders, reinstatement of employees, damages for loss or injury, and other remedial orders. The exact penalties and remedies depend on the legislation under which a claim is brought, the nature of the contravention, and the forum in which the matter is decided.

Compensation awarded in workplace discrimination matters can exceed $400,000 where significant economic and non-economic loss is established, particularly in cases involving severe psychological injury or major career impact. For cases involving purely general damages for non-economic loss (pain, suffering, humiliation), compensation can still exceed $100,000.

Each of the bodies that deal with discrimination complaints are set up to be less formal and more accessible than courts. This means that you don’t need a lawyer to defend a discrimination complaint. However, discrimination law is very technical, and there may be ways to successfully defend a discrimination complaint early on technical grounds, including whether the complainant has established all of the elements of a valid discrimination claim. Employers should also be careful not to make any incriminating statements or take any unlawful steps that may be used against them as the complaint progresses. Therefore, it is recommended that you obtain legal advice as soon as you are notified of a complaint. 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.