Claims alleging discrimination are brought under the general protections provisions of the Fair Work Act, and are generally known as “adverse action” claims.
Under the Fair Work Act, the prohibited reasons are extended from personal attributes (race, age, sex, etc.) to also include workplace rights and industrial rights.
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 and compensation can 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 (other than state government employees), along with potential employees and subcontractors are entitled to bring an adverse action claim. There is no threshold for a minimum period of employment or as to earnings.
The process for an adverse action claim differs depending on whether it involves the termination of employment.
For claims involving termination:
- Within 21 days of the termination, proceedings must be commenced in the Fair Work Commission.
- Within about a six weeks of filing the matter will be subject to a conciliation conference which will attempt find a negotiated resolution
- In the event 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.
- 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 submission 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 termination.
- 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 in the matter will take place about twelve months after the termination. Witnesses will be cross examined and the judge will make a decision as to whether adverse action has taken place and the appropriate orders for compensation, penalties etc, that may arise.