Everyone is entitled to feel safe in their workplace

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.

Discrimination

Discrimination is only unlawful if it is done for a prohibited reason

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:

  • Commonwealth anti-discrimination laws;
  • the Commonwealth Fair Work Act (primarily through the adverse action provisions); and
  • under state anti-discrimination laws, such as the Anti Discrimination Act in New South Wales, or the Equal Opportunity Act  in Victoria.

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.

Discrimination under New South Wales Law

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:

  • discrimination on the basis of race and racial vilification
  • discrimination on the basis of sex and sexual harassment
  • discrimination on transgender grounds and transgender vilification
  • discrimination on the grounds of disability
  • discrimination on the grounds of age and prohibition of compulsory retirement on the ground of age
  • discrimination on the grounds of homosexuality
  • discrimination on the grounds of a person’s responsibility as a carer
  • HIV/AIDS vilification

Claims must be commenced within 12 months of the date of the discrimination or other act complained of.

Who can bring a claim?

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.

The process

A claim under the Anti-Discrimination Act generally involves the following steps:

  1. A complaint is made to the Anti-Discrimination Board within 12 months of the action complained.  The Board may elect not to accept the complaint if made after that period.
  2. The Anti-Discrimination Board will investigate the complaint and will arrange a mediation.  The mediation, which seeks a resolution of the complaint, generally occurs within three to six months of the complaint.
  3. In the event the mediation does not resolve the complaint, the complaint may be referred to the New South Wales Civil and Administrative Tribunal (NCAT).
  4. The NCAT will list the matter for directions.  Orders will generally be made for the preparation of evidence and, often, mediation.
  5. The matter will be listed for hearing within about 6 months of the referral from the NCAT.
  6. The hearing will take place before three members of the NCAT.   Witnesses will be cross examined and the NCAT members  will make a decision as to whether discrimination  has taken place, along with  appropriate orders for compensation.  The compensation that may be ordered is limited to $100,000.

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.

Discrimination under Commonwealth anti-discrimination laws

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 Race Discrimination Act which prohibits racial discrimination and racial vilification;
  • The Sex Discrimination Act which prohibits sex discrimination and sexual harassment;
  • The Age Discrimination Act which prohibits age discrimination;
  • The Disability Discrimination Act which prohibits disability discrimination.

The range of protections under Commonwealth law is more limited than under New South Wales law.

Who can bring a claim?

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

The process for a claim under the Australian Human Rights Commission Act is generally:

  1. A complaint should be made to the Australian Human Rights Commission within 6 months of the action complained.  The Commission may elect not to accept a complaint made after that period.
  2. The Commission will investigate the complaint and will arrange a conference.  The conference, which seeks a resolution of the complaint, generally occurs within three to six months of the complaint.
  3. In the event the conference does not resolve the complaint, the complaint will be ‘terminated’.  The termination entitles the complaint to commence court proceedings.
  4. If the complaint elects to do this, proceedings can then be commenced in the Federal Circuit Court or Federal Court.  The proceedings must be commenced within 60 days of the date of the termination of the complaint by the Australian Human Rights Commission.
  5. The Court will list the matter for directions.  Orders will be made for the preparation of evidence, and generally, further mediation.
  6. The matter will be listed for hearing within about 6 months of the commencement of proceedings.
  7. The hearing will take place before a judge in the Federal Court or Federal Circuit Court.  Witnesses will be cross examined and the judge will make a decision as to whether discrimination  has taken place, along with  appropriate orders for compensation.  The compensation is uncapped.

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

Adverse action claims involving termination arise where there a person is dismissed for a prohibited reason

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:

  • a prohibited reason such as sex, race, age; or
  • a person having exercised or proposed to exercise a workplace right;
  • a person having exercised or proposed to exercise an industrial right, such as joined or participated in union activities.

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.

Who Can Bring a Claim?

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

The process for an adverse action claim differs depending on whether the claim involves the termination of employment.

For claims involving termination:

  1. Proceedings must be commenced in the Fair Work Commission within 21 days from the date of termination;
  2. Within about six weeks from filing, the matter will be subjected to a conciliation conference, where the parties will attempt to come up with a negotiated resolution
  3. If there is no negotiated resolution, the Commission will issue a certificate. Following the certificate, the applicant can commence proceedings in the Federal Court or Federal Circuit Court. Alternatively, the parties can agree to have the matter dealt with by the Fair Work Commission.
  4. If the parties elect to have the matter be dealt with by the Fair Work Commission, the matter will be timetabled for hearing in a manner similar to that used for unfair dismissals. This timetable will allow for the preparation of statements by both the employee and employer, an outline of submissions, and potentially the production of documents. A hearing will occur before a member of the Fair Work Commission. Hearings generally take place about 3 to 6 months after the date of termination.
  5. If the applicant elects to commence proceedings in the Federal Circuit Court or Federal Court, the matter will be listed for directions. The directions will cover the preparation of pleadings, evidence (usually in affidavit form), and other steps.  Commonly, Orders for compulsory mediation will be made.  The matter will then be listed for trial. The trial generally takes place about twelve months after the date of termination and witnesses will be examined and cross examined. The judge will then make a decision as to whether adverse action has taken place. If adverse action is found to have happened, the appropriate orders for compensation and penalties will be made as well.
Links and Resources

Bullying

Workplace bullying is a significant problem in Australian workplaces

The Fair Work Act contains provisions that enable the Commission to deal with instances of bullying at work.
What is bullying at work?

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.

What does “repeated unreasonable behaviour” mean?

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.

Must there be damage to health and safety?

There must be a real risk to workers’ health and safety.  There does not need to be actual damage.

Who can make a claim?

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:

  • Employees
  • Contractors or subcontractors
  • Employees of a contractor or subcontractor
  • Employees of a labour hire company who has been assigned to work in the person’s business or undertaking
  • Outworkers
  • Apprentices or trainees
  • Students gaining work experience
  • Volunteers or
  • Person of a prescribed class

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.

What is the process for a claim for anti-bullying?

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

The prohibition against sexual harassment is not limited by gender or sex

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:

  • whether there is any other action being contemplated (if there is, a claim under Commonwealth law will generally be preferred as it can be brought in the Federal Court or Federal Circuit Court)
  • whether the employee is a state public sector employee.  Such employees may not be entitled to bring claims under the Commonwealth law.

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.

Whistleblowing

As whistleblowing comes with risks, it is important to seek legal advice before taking the next step

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.

Occupational health and safety

Both employers and employees stand to benefit from OHS laws and regulations

In Australia, employers are required to comply with occupational health and safety (OHS) laws and regulations for the benefit and welfare of their employees. Workers, likewise, have obligations under OHS laws and regulations, regardless of whether they are an employee, volunteer, or contractor.

The health and safety of employees should always be made a priority. Although some businesses may find this costly at first, not providing a safe work environment and maintaining adequate facilities may result in hefty fines, loss of workers, and even prosecution. OHS laws and regulations do not only ensure that workers are protected, but also that businesses thrive as they are less exposed to costs from work-related health and safety claims.

Occupational health and safety regulations also require that employers provide their employees with adequate training, supervision, and instruction. This is especially necessary when handling and operating large machines and structures.

While each State and Territory has their own set of laws, regulations, and codes, these are practically similar. In NSW, you are encouraged to initially talk to your supervisor, employer, and health and safety or union representative about workplace safety and health concerns before taking legal action. If your complaint has not been acted upon or you are unsatisfied with how it was addressed, you may bring a complaint to SafeWork NSW.

 

 

Segelov Taylor Lawyers have extensive and expert experience in assisting both employers and employees dealing with occupational health and safety issues.

Workplace investigations

Workplace investigations can be challenged in unfair dismissal claims or other legal proceedings

From time to time employers may conduct a workplace investigation into conduct in the workplace. Workplace investigations can arise when:

  1. There are allegations of sexual harassment;
  2. There are allegations of sexual or racial discrimination, or other forms of discrimination;
  3. There are allegations of bullying; and/or
  4. There are allegations of misconduct.

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.

How are investigations run?

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.

What are the alternatives to an investigation?

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:

  • mediation;
  • a more informal fact discovery process.

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.

I am the subject of a workplace investigation. How should I respond?

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:

  • whether or not to seek provision of clear detailed particulars to allegations being made;
  • the extent to which the process provides procedural fairness;
  • whether the best and most appropriate response can or should be provided in writing, or orally; and
  • what context exists for the allegations, including whether the allegations are made in bad faith.

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.

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We offer a free initial case assessment in all matters.

We will obtain preliminary information from you and provide some indicative advice as to:

  • the types of claims that may be available for you;
  • the merits of any claim;
  • the likely value of any claim;
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