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Discrimination, Sexual Harassment and Workplace Bullying

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.

If you are looking for an employment lawyer in Sydney, or for further information in relation to any employment law needs, please do not hesitate to contact any member of our Employment Law Team.

  • What is discrimination?

    Discrimination is when a person is treated less favourably than another person in a similar situation because of a particular attribute or characteristic of that person that is protected by law.

    The characteristics which are protected from discrimination under State and Federal anti-discrimination law include:

    • sex (including pregnancy and breastfeeding)
    • marital or domestic status
    • caring and family responsibilities
    • race, colour, descent or national or ethnic origin,
    • disability
    • age
    • homosexuality
    • transgender status

    Discrimination can be direct or indirect. Direct discrimination occurs when a person is treated differently because of a protected characteristic. An example of direct discrimination would be a rule that women cannot hold the position of director of a company. Indirect discrimination occurs where a requirement that applies to everyone unfairly affects people with a protected characteristic.  An example of indirect discrimination would be a rule that all staff must attend a weekend training session, which unfairly affects some staff who have parental responsibilities making attendance at that weekend training session impossible.

  • Sexual Harassment

    A person sexually harasses another person if the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, or engages in other unwelcome conduct of a sexual nature. Examples of sexual harassment may include, intrusive questions about a person’s private life or unwanted requests to go out with someone or have sex, leering or unwelcome touching, displaying images of pornography or other sexual images in a workplace.

    Sexual harassment is unlawful in certain public places, including workplaces. Employers have a responsibility to prevent sexual harassment in the workplace and may also be held responsible for an employee who sexually harasses another employee.

  • What is workplace bullying?

    Workplace bullying is covered under both work, health and safety law, and the Fair Work Act.

    Workplace bullying is repeated and unreasonable behaviour directed towards a worker or a group of workers that 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 sexually harassed, discriminated against or bullied?

    If an employee believes that they are the subject of bullying or unlawful discrimination or sexual harassment in the workplace, they should in the first instance approach a supervisor, human resources manager, or designated WHS or contact person. Most workplaces will have a policy and grievance procedure that should be followed, so it is important that staff understand the procedures and 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 human resources advisor to investigate the complaint and to make recommendations to resolve the issue. Atkinson Vinden often helps with these types of investigations, and our involvement can assist in achieving a quick and fair resolution of the matter. In serious cases, the outcome of a complaint may result in the discipline or dismissal of the perpetrator of the unlawful behaviour.

  • Can employees commence court proceedings for discrimination and sexual harassment?

    Yes, employees can sue for discrimination relating to their employment conditions, termination of employment for a discriminatory reason, or even for refusing or failing to employ a person for a discriminatory reason. To succeed in a discrimination or sexual harassment claim, an employee needs to prove that discrimination was only one of a number of factors that has led to termination of employment or some other type of adverse treatment in relation to their employment. 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 (ADB) in NSW or the Australian Human Rights Commission (AHRC) to lodge a complaint. The ADB or AHRC will then investigate the complaint and encourage conciliation. Conciliation will require an employer to respond to allegations of unlawful discrimination or sexual harassment, which may require a need to justify that appropriate workplace policies have been implemented and other measures adopted (training of staff, fair investigation of complaints) so that the employer can establish it has taken all reasonable measures to avoid discrimination or sexual harassment in the workplace.

    While most matters resolve at conciliation, those that don’t may proceed to a contested hearing in the Federal Court (AHRC complaints) or the NSW Civil and Administrative Tribunal (NCAT – for ADB complaints) – where various orders can be made including for the payment of compensation, damages, and legal costs.

    It is therefore important to obtain legal advice early, not only to avoid costly litigation, but to avoid protracted disharmony within your workplace or your business.

  • Can an employee litigate or complain to an external body and seek relief for workplace bullying?

    Yes, employees can either:

    • 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. The FWC however cannot makes orders for compensation or other financial payments.
    • lodge a complaint at SafeWork NSW to commence an investigation – which can result in court prosecution for breaches of the Work, Health and Safety Act 2011 (NSW).
    • lodge a workers’ compensation claim with their employer if they have suffered an injury as a result of the workplace bullying.

    Serious cases of workplace bullying resulting in significant injury may also warrant investigation by the police and could result in criminal prosecution.

  • What’s the process when a formal complaint of discrimination or sexual harassment 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 Anti – Discrimination division of the NSW Civil and Administrative Tribunal (NCAT) 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 – although compensation is capped at NCAT. Legal Costs can also be awarded in favour of a successful party.

  • 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: Level 3, 175 Pitt Street, SYDNEY NSW 2000,  : 1300 369 711 – www.humanrights.gov.au

    Fair Work Ombudsman: 13 13 94 – www.fairwork.gov.au

    Fair Work Commission: 1300 799 675 – www.fwc.gov.au

  • Our advice for you

    We advise on bullying, discrimination and sexual harassment, and general protections / adverse action cases all the time. Sometimes it is an employee who feels unsafe at work due to the actions of others and needs someone strong to stand up for them. In other situations, we are approached by business owners who are wanting to intervene to stop employee 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.

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Protecting your reputation starts with simplifying the complex. This handy checklist should quickly point you in the right direction and help you understand whether you have a case, and where to start to secure the best possible outocme.