Discrimination

Authentic workplaces are the most productive. Central to creating workplace loyalty and commitment is respecting difference and encouraging diversity. Value the people, give them the training, and honour their efforts.

A sure sign that there is something dysfunctional in any workplace is the presence of bullying, harassment, or acts of discrimination. This page will provide some introductory information on the legal issues arising from such behavior, but every situation is different, and we urge workers and employers to engage our help if you have concerns about your workplace.

Steps to take when you’re being bullied in the workplace

  • What is discrimination?

    Discrimination is treating one class of people less favourably because of the special attributes of that group. For example, having a policy of not employing people with tattoos would be a form of discrimination. However, not all forms of discrimination are unlawful. Using the tattoo example, there is no law stating that discriminating against a person because they wear a tattoo is unlawful, and so being treated less favourably due to having tattoos is not legally actionable.

    The main forms of discrimination which are considered unlawful under State and Federal law include:

    • sex (gender)
    • marital status
    • pregnancy or a potential pregnancy
    • caring and family responsibilities
    • race, colour, ethnicity or religious background, descent or nationality
    • disability
    • age
    • HIV/AIDS status
    • homosexuality
    • transgenderism (i.e. anyone who lives, has lived or wants to live as a member of the opposite gender to their birth).

    Discrimination can be direct or indirect. Direct discrimination is making a rule that says that the discriminated group cannot have the same benefit that others outside of that group have. An example of direct discrimination would be a rule that women cannot hold the position of director of the company. Indirect discrimination occurs where the same rule applies to all, but because of the particular attributes of the group being discriminated against, they are adversely affected by that rule. An example of indirect discrimination would be a rule that all staff must attend a weekend training session, where some staff have parental responsibilities that would make attendance at that weekend training session impossible.

  • What is workplace bullying?

    The laws on bullying in the workplace are found in the Fair Work Act 2009. That law says that bullying at work occurs when:

    • a person or a group of people behaves unreasonably and repeatedly towards a worker or a group of workers while at work, and
    • the behaviour creates a risk to health and safety.

    Bullying does not include reasonable management action carried out in a reasonable manner.

    Often discrimination and bullying are related, and the terms may both accurately describe the same set of events.

  • What can employees do if they feel they are being discriminated against or bullied?

    If an employee believes that they are the subject of unlawful discrimination in the workplace, they should in the first instance approach a supervisor, human resources manager, or designated workplace harassment contact officer or an appropriate coordinator in the workplace. It is important therefore that staff understand the chain of command for making such complaints.

  • How should companies handle these complaints?

    Complaints of this sort should be handled sensitively and proactively, because if they are not, events can escalate quickly and lead to serious conflict and polarization of staff. Often companies will hire an outside HR advisor to come in to investigate the complaint, and to make recommendations for the best way forward. Atkinson Vinden often helps with these investigations in an effort to bring a quick and fair resolution of the matter. In serious cases, the outcome of a complaint may be the discipline or even termination of the perpetrator of the unlawful behaviour.

  • Can you sue for discrimination?

    Yes, workers can sue for discrimination. To succeed in a discrimination claim, a worker needs to prove that discrimination was only one of a number of factors that has led to termination. Employers therefore need to be vigilant regarding discrimination in the workplace, and develop a sound policy to enforce proper standards.

    An aggrieved employee can contact the NSW Anti-Discrimination Board or the Australian Human Rights Commission (depending on the standing of the employee). They will then be provided with a complaint form to complete and return and the Board or Commission will investigate and endeavour to conciliate the complaint. This would involve your company providing input on the complaint and possibly the need to justify company policy.

  • Can you sue for workplace bullying?

    Yes, workers can apply to the Fair Work Commission for an order that the bullying stop, together with any other orders that are necessary to protect the worker. There is legal help for workplace bullying, and suing for workplace bullying is possible. Employee rights about bullying are found in the Fair Work Act. For example, there might be an order made that the employee is only ever to be spoken to about disciplinary matters if the meeting is to be recorded, or in the presence of a support person for the worker. However, usually anti-bullying applications do not result in monetary awards.

  • What’s the process when a formal complaint of discrimination has been made?

    The focus of legal procedure in discrimination is upon conciliation to attempt a resolution of the complaints made by an individual or groups of individuals. The conciliation process is confidential between the parties and focuses on:

    • trying to clarify the complaint and ascertain whether any breach of the legislation can be identified;
    • trying to resolve the differences between the parties by structuring a resolution that may include compensation, reinstatement, an apology, or a change in policy or practice.

    If the conciliation breaks down or is not possible, several options are possible. In the case of the Anti-Discrimination Board, the President can refer the matter to the Administrative Decisions Tribunal for determination. In the case of the Australian Human Rights Commission, the aggrieved employee can commence proceedings in the Federal Court. If a claim is successful in either of these jurisdictions, the aggrieved employee can expect to receive an award of damages which include an amount as compensation for the distress and humiliation suffered and a further amount for any wage loss suffered.

  • Workers Compensation Issues

    There is often an overlap between workplace bullying and discrimination and workers compensation. If a person suffers a psychological injury at work, it will entitle that person to claim workers compensation unless the injury was caused by the reasonable management action of the employer. It is difficult to imagine unlawful discrimination and bullying as ever being the reasonable management action of an employer, and so these cases, where serious, will usually lead to an insurance claim. This provides yet another good reason for workers and employers to deal with these disputes effectively and proactively.

  • Where to get further information

    NSW Anti-Discrimination Board: Level 17/ 201 Elizabeth St. Sydney 02 9268 5544
    www.lawlink.nsw.gov.au/adb
    Australian Human Rights Commission (HREOC): 9284 9600
    HREOC Complaints Infoline: 1300 656 419, www.humanrights.gov.au

  • Our advice for you

    We advise on bullying and discrimination cases all the time. Sometimes it is a worker who feels unsafe at work due to the actions of others, and they need someone strong to stand up for them. In other situations, we are approached by business owners who are wanting to intervene to stop workers mistreating one another, or to help respond to an allegation or claim. Because we have lots of experience working for both employees and companies, we are able to provide balanced and sensible advice that leads to swift and practical outcomes.

  • Get help

    As a society, we are much more aware these days of the seriousness of mental health issues, and what can go wrong if human conflict is not well managed. Due to the serious nature of these cases, we encourage anyone affected by bullying or discrimination, or companies seeking to manage issues in this area, to contact us immediately on (02) 9411 4466.