Workplace Discrimination and Victimisation

Both the Fair Work Act 2009 (FWA) and the Industrial Relations Act 2016 (IRA) contain provisions that make it unlawful for an employer to take adverse action against an employee or prospective employee because of an attribute of that person. If adverse action is taken under such circumstances, it becomes workplace discrimination.

Who does the FWA and IRA cover?

In Australia, the FWA covers most employees and employers. In Queensland, the FWA covers national system employees and employers (that is, employees and employers in the private sector).

Employees and employers of the Queensland Government, as well as local councils are generally covered by the IRA.

What is unlawful workplace discrimination?

Under the FWA, unlawful workplace discrimination arises when an employer takes adverse action against an employee or prospective employee because of the person’s:

• race;
• colour;
• sex;
• sexual orientation;
• age;
• physical or mental disability;
• marital status;
• family or carer’s responsibilities;
• pregnancy;
• religion;
• political opinion; and/or
• national extraction or social origin.

What is adverse action?

The term ‘adverse action’ is broad and generally, for unlawful workplace discrimination matters, includes an employer doing, threatening and organising any of the following:

• Dismissing an employee, injuring them, altering their position to their prejudice or discriminating between them and other employees.
• Refusing to employ a prospective employee or discriminating against them in the terms or conditions of employment offered.

When will action not constitute unlawful workplace discrimination?

Action will not constitute unlawful workplace discrimination if the action:

• is not unlawful under any anti-discrimination law in force in the place where the action is taken;
• is based on the inherent requirements of the particular position concerned (for example positions involving national security may have exemptions);
• is taken against a staff member of a religious institution in good faith and to avoid injury to the institution’s religious beliefs.

It is important to remember that action will only constitute unlawful workplace discrimination if the action is taken because of a person’s attributes (listed above).

What can a person do if they have been the subject of unlawful workplace discrimination?

A person who has been dismissed due to unlawful workplace discrimination can lodge an application to deal with the dismissal (a general protections dismissal application) at the Fair Work Commission (FWC). This must be done within 21 calendar days of the dismissal taking effect.

If a person has not been dismissed, they can lodge an application at the FWC up to six years from the day the alleged contravention occurred. Alternatively, they can also apply directly to the Federal Court or Federal Circuit Court.

What about State employees?

The IRA generally covers employers and employees to whom the FWA does not apply, such as employees of the Queensland Government and local councils. As with the FWA, that are similar protections in the IRA.

Get help

It can often be difficult for a person to understand whether they have been the subject of unlawful workplace discrimination and matters of this kind can be complex and difficult. Strict time limits apply to those who wish to seek remedies in circumstances where they have been dismissed.

Should you wish to obtain legal advice in relation to a workplace discrimination matter, you should contact a Gilshenan & Luton employment lawyer who will assist you.