In Australia, the law provides protections for employees who are subjected to unlawful discrimination, bullying, victimisation and adverse action. More generally, through work health and safety legislation the law provides an obligation on employers and others to to take all reasonable steps to ensure that the workplace is safe and not a risk to health.
Relevant legal claims involve:
Workplace investigations, generally, take place before any legal action is taken. It is important to know your rights, possible risks, and how the process works if subjected to a workplace investigation.
Contact us if you need help and for a free initial assessment of your claim.
The law prohibits unlawful discrimination against employees and agents.
A number of specific laws, many with different features, processes and remedies, operate. These laws include:
Discrimination is only unlawful if it is done for a prohibited reason. Common classes of prohibited reasons are sex, race, age and disability. Some anti-discrimination laws, for example, the NSW Anti-Discrimination Act contain a wider span of what is prohibited. It is, however, important to recognise that discrimination is only unlawful if it is for a prohibited reason. Discriminating against an employee for an non-prohibited reason (such as for example, simple because of a personality conflict) may involve bad employment practices, and may on occasion be unlawful for other reasons, but will not usually amount to unlawful discrimination.
Many anti-discrimination laws recognize both “direct discrimination” and “indirect discrimination“. Direct discrimination involves treating a person less favourably because of the prohibited reason while indirect discrimination involves the imposition of a rule or requirement that has a different impact on people because of a protected quality. For example, a requirement that employees be more than 6ft tall would indirectly discriminate against women, as men are disproportionately more likely to be more than 6ft tall.
The primary anti-discrimination law in New South Wales is the Anti-Discrimination Act. The Anti-Discrimination Act prohibits a very broad range of discrimination in employment, as well as in the provision of services and government action. Other states have similar protections, although they do not contain precisely the same protections.
The specific protections provided by the Anti-Discrimination Act include protections against:
Claims must be commenced within 12 months of the date of the discrimination or other act complained of.
All employees, along with potential employees and subcontractors are entitled to bring a claim under the Anti-Discrimination Act. There is no threshold for a minimum period of employment or as to earnings. However, there may be some instances where claims cannot be brought under the state Act and must be brought under Commonwealth law.
A claim under the Anti-Discrimination Act generally involves the following steps:
Generally, each party pays their own costs although there is some capacity for orders to be made requiring one party to pay some or all of the costs of the other side.
There are series of Acts that prohibit discrimination under Commonwealth law. These Acts are organised under the Australian Human Rights Commission Act. The specific Acts include:
The range of protections under Commonwealth law is more limited than under New South Wales law.
Most employees, along with potential employees and subcontractors, are entitled to bring a claim under the Australian Human Rights Commission Act. Some state government employees are not entitled to bring a claim under the Commonwealth laws. There is no threshold for a minimum period of employment or as to earnings.
The process for a claim under the Australian Human Rights Commission Act is generally:
Generally, the losing party pays 50-70% of the successful party’s costs.
Segelov Taylor Lawyers have extensive and expert experience in assisting clients in claims for unlawful discrimination.
Adverse action claims are claims brought under the Fair Work Act. Adverse action claims involve allegations that a person has been treated unfairly (including by having their employment terminated) as a result of:
Adverse action claims are more significant and costlier than unfair dismissal claims. Unlike unfair dismissal, there is no cap on the amount of compensation that can be recovered. Compensation can also be recovered, if appropriate, for pain and suffering.
Adverse action claims must be commenced within 21 days of the termination of employment or 6 years if there is no allegation of termination.
All employees, potential employees, and subcontractors are entitled to bring an adverse action claim. There is no threshold for a minimum period of employment or threshold as to earnings.
The process for an adverse action claim differs depending on whether the claim involves the termination of employment.
For claims involving termination:
Under the Fair Work Act, bullying at work is defined as repeated unreasonable behaviour towards a worker or a group of workers that creates a risk to health and safety. Reasonable management action carried out in a reasonable manner (including disciplinary action) is not bullying.
While there is no specific number of incidents required for a case to be classified as workplace bullying, there generally needs to be more than one incident. It is not necessary, however, that the same specific behaviour is repeated.
The Commission will apply an objective test in determining whether behaviour is unreasonable or not – that is, whether a reasonable person, having regard to the specific circumstances, would consider such behaviour as unreasonable. In the context of bullying, conduct such as shouting, mocking, social exclusion or singling-out an employee is often considered unreasonable behaviour. Bullying can often be difficult to identify.
There must be a real risk to workers’ health and safety. There does not need to be actual damage.
Workers can make an application to the Fair Work Commission for an Order to stop the bullying. The Work Health and Safety Act 2011 (Cth) defines workers to include the following:
A worker must still be employed or working as one of the above for the claim to succeed. If the worker has been dismissed, then they have to make a different application, such as one for unfair dismissal.
An anti-bullying application may be commenced in the Fair Work Commission by a person who believes that they have been subject to bullying.
The application normally names both the employer of the bullied person, and each of the individuals it alleges to have engaged in bullying behaviour. The law does not require that the bullies must have the same employer as the bullied person.
Once the application has been commenced, the Fair Work Commission will send copies to the employer, and to each of the named persons. The employer is required to provide a response, while the named persons may also do so.
The matter is then scheduled for a mediation conference. This conference, which is required to occur as soon as practicable, attempts to resolve the dispute by negotiation.
If the matter is not resolved by mediation, then it will be set down for hearing before a member of the Fair Work Commission. The parties will all be asked to prepare written statements and submissions.
Following the hearing, the member of the Fair Work Commission will determine if bullying occurred. If it did, they may make orders to stop the bullying.
They are not permitted to make an Order for payment of compensation.
Segelov Taylor Lawyers principal, David Taylor, is an accredited specialist in Employment and Industrial Law and can advise on workplace bullying and assist workers make an Anti-Bullying application.
Sexual harassment is unwelcome conduct of a sexual nature. It does not need to involve repeated acts, although repeated acts often assist in demonstrating that conduct was unwelcome.
The law in relation to sexual harassment is very similar under state and Commonwealth law. The decisions as to which regime to commence a complaint under is made by reference to:
Both men and women can be sexually harassed, by either a man or a woman. However sexual harassment of women by men remains by far the most common.
If you have experienced sexual harassment in the workplace, Segelov Taylor Lawyers can advise you on your legal options. Our principal, David Taylor, is an accredited specialist in employment and industrial law and has 20 years experience in handling employment and harassment matters.
Whistleblowers play an important role in protecting the public from misconduct by both government and private companies. However, publicising confidential information can expose an individual to adverse consequences, including potential criminal prosecution.
Although there are laws to protect whistle blowers, the extent of the protection offered will depend a number of factors, including whether the relevant law to be applied is state or Commonwealth, the organisation involved and the nature of the information exposed. Generally, whistleblowers must have followed certain procedures or meet certain requirements in exposing the information in order to be covered by whistleblowing protection laws. From January 2020, it will also be compulsory for public companies and large proprietary companies to have a whistleblower policy.
It is important to seek legal advice if you are considering exposing information about misconduct. Segelov Taylor Lawyers principal, David Taylor is an accredited specialist in Employment and Industrial Law and can advise on the legal rights and obligations of employees and employers handling confidential information.
From time to time employers may conduct a workplace investigation into conduct in the workplace. Workplace investigations can arise when:
It is important that all participants in workplace investigations – employers, as well as employees who have made allegations, or against whom allegations have been made – are aware of their rights, responsibilities and potential exposure.
There are no legal requirements as to the conduct of workplace investigations. Employers may elect to conduct the investigation internally (with varying degrees of formality), by a lawyer (which may then create some confidentiality through legal professional privilege) or by an external investigator. The type of investigation should be determined by reference to the subject matter and the size and capacity of the organisation.
However, if principles of procedural fairness are not afforded to each of the participants, the findings of the investigations may be more vulnerable to challenge in unfair dismissal or other legal proceedings.
At the preliminary stage an employer will be generally faced with a series of allegations or conduct from which allegations need to be drawn. Conducting a formal investigation may be an option at this point. Other options that should be considered are:
Workplace investigations are generally only able to make a determination of what occurred. Decisions as to the consequences of what occurred is a separate and distinct matter. Mediation can often be useful as the focus is on future conduct more than assessment of past events. Often, particularly where the allegations are more about interpersonal relationships than misconduct, a mediated outcome may achieve more with less damage to the organisation.
As the subject of an investigation, it is important to carefully consider the appropriate approach to participation. This will require a consideration of the potential outcomes of the investigation.
Key issues to be determined include:
Segelov Taylor Lawyers have extensive and expert experience in assisting clients undergoing investigations in the workplace. Segelov Taylor principal, David Taylor, has over 20 years of experience in handling employment law matters.
Hello David,
Thank you again for helping me through this challenging time and for delivering the best possible outcome on my behalf. I am grateful for your support, professionalism and excellent advice throughout.
This has been a very difficult time for my family and it has helped immensely to have your guidance throughout this process. Without your assistance, we would certainly be in a more precarious situation.
Most of all, thank you for your caring approach.
Kind Regards,
J
There are not enough superlatives to describe the brilliant representation provided by David Taylor at Segelov Taylor.
David recently helped me achieve a fair and just outcome for my termination of employment matter. His wise counsel and expert advice guided me through a difficult process of negotiation with my former employer. David’s easy to deal with, friendly, practical and down to earth and importantly kept his costs to a minimum.
David’s great legal skills as well as the right amount of feistiness got me a fantastic result! I thoroughly recommend Segelov Taylor for anyone who’s seeking a compassionate and expert advocate to redress an unfair employment situation.
I approached David to help me with an extremely stressful and difficult situation at work. David provided professional advice and guidance and I was glad he was there to reassure me in my time of need. It was great having him in my corner and a great outcome too, I would highly recommend Segelov Taylor Lawyers.
M
David performed great work helping me with my unfair dismissal claim.
I could never have obtained the result I did without his hard work on my behalf.
J
I had a difficult issue with work. David was able to provide advice that cut through the uncertainty and to provide strategic alternatives which in the end delivered a favourable outcome despite unlikely odds. I recommend him for employment law matters both simple and complex.
B
I was very stressed by how I was being treated at work. It felt overwhelming. David was able to provide calm and straightforward advice. He started a number of claims for me, and as a result I got to leave my job with a payment, my dignity and reputation protected. I now have a new job and am much happier.
K
I approached David regarding an issue that I thought I would have difficulty winning as the company we were dealing with is large and well-funded.
After the first consultation, I felt reassured after the first meeting with the other companies’ solicitor I knew I had made the right decision in having David represent me and glad David was on my side, I even felt slightly sorry for the other solicitor for about one second as David berated him and pursued him regarding the matter at hand.
I got everything I wanted and felt vindicated, having David in my corner made the difference although mild mannered and seemingly placid, once the discussion began, a dogged, fierce and aggressive person took over, coming out punching.
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David provided an extremely professional, thorough and friendly service in what was a lengthy and complex employment matter. I would highly recommend Segelov Taylor Lawyers.
A
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