Discrimination
How can I protect my company against discrimination claims?
State and Federal laws do not tolerate discrimination in the workplace. To succeed in a discrimination claim, an employee 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.
Unlawful discrimination occurs when a person is discriminated against on the following grounds:
- Sex
- 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 (ie. anyone who lives, has lived or wants to live as a member of the opposite gender to their birth).
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 your staff understand the chain of command for making such complaints.
If this does not provide a satisfactory resolution, there is a risk the aggrieved employee will 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.
Most importantly, 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.
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
Advice recommended
A discrimination claim in the workplace can have tremendously damaging affect of staff morale. It can also cause a decline in productivity. Employers should obtain urgent legal advice to contain a discrimination claim if possible.
We welcome your enquiries regarding unfair dismissal claims. Please contact Ann Mary Edwards, Rod Berry or Teresa Dodaro for further information on (02) 9411 4466.
