Workplace Discrimination

Employment Law Handbook

In a society where acceptance and respect are becoming a growing emphasis and priority, it is still a common occurrence for one to be treated differently and less favourably due to certain characteristics or circumstances. Such situations often occur in the workplace, where an employer may favour one employee over another due to that employee’s race, or where a prospective candidate is not hired due to their sex.

The Australian legislative framework has developed statutory instruments at the Federal, State and Territory levels to provide for protection from discrimination, not only in the workplace, for all individuals.

What is workplace discrimination?

Unlawful discrimination occurs where a person is treated less favourably than another person due to their background or other certain personal characteristics. As the name suggests, workplace discrimination is therefore unlawful discrimination which occurs in one’s workplace, and it may be inflicted by an employer or even another employee.

Workplace discrimination may be covered and dealt with by numerous legislative authorities. Section 351 of the Fair Work Act 2009 (Cth) (“the Act”) protects employees and prospective employees from employers taking adverse action against them because of their race, colour, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin. Under section 342 of the Act, “adverse action” may include unlawful actions taken for a discriminatory reason such as dismissing an employee, injuring an employee, altering an employee’s position to their detriment, discriminating between one employee and other employees, refusing to employ a prospective employee and discriminating against a prospective employee on the terms and conditions in the offer of employment.

In addition to protection provided for employees and prospective employees from discrimination under the Act, individuals in general are protected from discriminatory treatment in any given context, not just limited to the workplace. Under the federal jurisdiction, the Commonwealth Government has enacted four main general statutes in accordance with its foreign affairs power to uphold Australia’s international obligations in respecting and implementing certain human rights. These statutes include:

Racial Discrimination Act 1975 (Cth)
Sex Discrimination Act 1984 (Cth)
Disability Discrimination Act 1992 (Cth)
Age Discrimination Act 2004 (Cth)

Furthermore, each State and Territory has its own anti-discrimination legislation in place:

Anti-Discrimination Act 1977 (NSW) in New South Wales
Equal Opportunity Act 2010 (Vic) in Victoria
Anti-Discrimination Act 1991 (Qld) in Queensland
Equal Opportunity Act 1984 (WA) in Western Australia
Equal Opportunity Act 1984 (SA) in South Australia
Anti-Discrimination Act 1998 (Tas) in Tasmania
Discrimination Act 1991 (ACT) in the Australian Capital Territory
Anti-Discrimination Act 1992 (NT) in the Northern Territory

The abovementioned anti-discrimination laws aim to promote the fundamental principle of equal opportunity by proscribing discrimination on the basis of certain characteristics.

What should you do when you experience discrimination in the workplace?

Where someone has been subjected to discriminatory conduct in their workplace, they may bring an action on the basis that their employer has acted in contravention of section 351 of the Act. When this is the case, the employee or prospective employee has the option to either apply to the Fair Work Commission (“FWC”) to deal with the dispute, or may alternatively make a general protections application to the Federal Court of Australia or the Federal Circuit and Family Court of Australia. It should be noted that, where an action for workplace discrimination under the Act involves the adverse action of dismissal, the procedure may differ.

Alternatively, a victim of workplace discrimination may seek to lodge a complaint to the Australian Human Rights Commission (“AHRC”) if it is the case that the discriminatory conduct they had been subjected to is prohibited under the four federal statutes as mentioned above. Interestingly, one of the most common complaints lodged to the AHRC currently is in relation to sexual harassment pursuant to the Sex Discrimination Act 1984 (Cth). Unfortunately, the workplace is a venue where sexual harassment, or any form of harassment or vilification for that matter, can frequently occur.

Each State and Territory has its own investigatory agency similar to the AHRC, exercising powers imposed upon it by its respective State or Territory legislation. However, it should be noted that once a complaint has been lodged under one jurisdiction, it is generally not possible to commence simultaneous proceedings in another.

What remedies are available?

There are a broad range of remedies that may be sought and ordered to a successful complainant in workplace discrimination matters. Such remedies may include:

Declaration that the employer or respondent has committed unlawful discrimination
Restraining the employer or respondent from repeating or continuing such discrimination
Requiring the employer or respondent to perform any reasonable act to redress any loss or damage suffered
Requiring the employer to hire or reinstate the complainant
Requiring the employer or respondent to pay compensation for any loss or damage suffered because of their conduct

Compensation is by far the most common remedy. Aside from actual economic loss, a complainant may also be awarded compensation for any distress or humiliation suffered. Especially in the area of sexual harassment, the Courts have acknowledged that the evolution of society demands recognition that damage to one’s feelings and hurt or humiliation as a result of sexual harassment simply cannot be mathematically calculated, allowing for higher amounts of compensation awarded.

Useful Resources

Fair Work Act 2009 (Cth)
Racial Discrimination Act 1975 (Cth)
Sex Discrimination Act 1984 (Cth)
Disability Discrimination Act 1992 (Cth)
Age Discrimination Act 2004 (Cth)
Anti-Discrimination Act 1977 (NSW)
Equal Opportunity Act 2010 (Vic)
Anti-Discrimination Act 1991 (Qld)
Equal Opportunity Act 1984 (WA)
Equal Opportunity Act 1984 (SA)
Anti-Discrimination Act 1998 (Tas)
Discrimination Act 1991 (ACT)
Anti-Discrimination Act 1992 (NT)
Fair Work Commission at https://www.fwc.gov.au/
Fair Work Ombudsman at https://www.fairwork.gov.au/

Park & Co Lawyers Employment Law Experts

Our team of Employment Law Experts at Park & Co Lawyers are strong advocates for the correct treatment of employees in any circumstance. We understand the immense toll that workplace discrimination can have on you and your wellbeing.

Should you require any assistance in relation to making a complaint regarding workplace discrimination, please do not hesitate to get in contact with our team.