Posts: Discrimination

In October 2023, we reported on a decision of the Australian Capital Territory Civil and Administrative Tribunal that found an employer had unlawfully discriminated against an employee because of her breastfeeding responsibilities. The Tribunal has now handed down its decision in relation to the remedies flowing from that contravention.

There are a number of personal attributes that are protected by Australia’s federal and state anti-discrimination laws, such as a person’s race, sex, pregnancy, marital status, family responsibilities, breastfeeding, age, disability, sexual orientation, gender identity or intersex status.

In her usual entertaining and informative style, our Managing Director and Principal, Athena Koelmeyer, will guide employers through the tangled web of legislative obligations they face when dealing with an injured employee.

While the internet has made the world seem smaller and more connected, the ability to have unlimited information at our fingertips carries a risk for employers that what is found on the internet will be used to unlawfully discriminate against people in their employment.

The Federal Circuit Court of Australia (the Court) recently ruled on an application brought by an employee alleging that three respondents had engaged in breaches of the Fair Work Act 2009 (Cth) (FW Act), including sham contracting and dismissing the employee because she was pregnant.

The general protections provisions under the Fair Work Act 2009 (Cth) (FW Act) provide protections against adverse action which is taken for a prohibited reason. Prohibited reasons for taking adverse action include situations where a person has a workplace right and exercises (or proposes to exercise) that right. Workplace rights include the right to utilise leave entitlements under the FW Act.

Discrimination in the workplace is unlawful under a number of Australian laws, including state and federal anti-discrimination legislation (such as the Age Discrimination Act 2004 (Cth)) as well as the Fair Work Act 2009 (Cth) (FW Act).

Australia has long had in place state and federal anti-discrimination legislation which recognises sexual harassment as a form of sex discrimination and makes sexual harassment in the workplace unlawful.

Federal and State anti-discrimination legislation makes it unlawful for employers to discriminate against or harass a person in their employment. The legislation also places liability on employers for the discriminatory conduct of their employees.

It goes without saying that employees should treat each other with respect and courtesy in the workplace. In a recent decision, the FWC was tasked with considering a claim from a dismissed employee who alleged that remarks he made in the workplace were not offensive and did not justify his dismissal.

Racial abuse from fans and/or members certainly falls foul of discrimination laws and can lead to significant questions being asked of clubs and organisations about what steps they took or could have reasonably taken to prevent players from being subject to such behaviour.

Australia’s anti-discrimination legislation imposes positive obligations on employers to make reasonable adjustments in the workplace to accommodate an employee’s disability, unless doing so would cause unjustifiable hardship to the business.

The 76ers are in the spotlight again following recent posts on the Twitter account of Bob Muscala, the father of one of its players.

Small businesses have a litany of rules, regulations and red tape they are required to comply with, including registration and tax compliance, employee minimum entitlements, fair trading, work health and safety and privacy obligations.

Fair Work Ombudsman’s (FWO’s) successful prosecution of a hotel operator and its owner who took adverse action against two employees because of their Chinese race and Malaysian extraction.

Tennis champion Serena Williams as she returned to her first Grand Slam tennis tournament following the recent birth of her daughter.

Settlement agreements, terms of settlement, deeds of release or release and undertakings are all terms which are used interchangeably to refer to the binding and confidential agreements.

Job advertisements should be carefully drafted to ensure that they focus on the essential skills of the position and not any irrelevant or subjective factors.

In a proactive attempt to combat the issue of workplace sexual harassment, Facebook and Google have implemented new policies on dating in the workplace. This new approach adopts a “one strike and you’re out” rule, which states that employees only have one opportunity to ask a co-worker out on a date.

Across the world, issues of equality and justice have taken centre stage recently. We are experiencing a time of increased awareness about the need to redress past discrimination and prejudice towards many minority groups.

There was much conversation last week regarding the certain sections of AFL crowds booing and jeering former Australian of the Year, Adam Goodes. As most people know Adam is a Sydney Swans AFL player, a proud indigenous man and a prominent advocate on behalf of the Australian indigenous community.

In July 2015 the Federal Circuit Court of Australia delivered its judgment in Huntly v State of NSW, Department of Police and Justice (Corrective Services NSW) [2015] FCCA 1827 (Huntly’s case). The Court found that Corrective Services NSW unlawfully discriminated against Huntly and failed to make reasonable adjustments after she was diagnosed with Crohn’s Disease.

The decision of the Northern Territory Anti-Discrimination Commission in Frances Newchurch v Centreprise Resource Group Pty Ltd, Mr Graham Ride and Ms Sarah Ride [2016] NTADComm 1 (Newchurch decision) highlights that employers may be found to be vicariously liable for their employee’s discriminatory conduct where it is not demonstrated that it took “all reasonable steps” to prevent the employee from doing the discriminatory act.

One of the potential dangers to businesses in the recruitment and selection process is to omit an applicant with a name which may indicate their race, descent, national or ethnic origin from the selection process.

In an attempt to reduce the gender imbalance in Melbourne University’s School of Mathematics and Statistics, the University is now advertising three permanent positions exclusively for female applicants only.

There are a range of laws in Australia that protect people who are pregnant from discrimination and most employers are aware that pregnancy related discrimination in the workplace is unlawful. However, assumptions about the capacity of pregnant employees are often made without proper expert advice and unfortunately we are still seeing employers unlawfully act against the interests of pregnant employees.

For the first time in history, there are five generations of Australians participating in the workforce at once, and whilst it’s widely acknowledged that Australia has an aging population, what is less commonly appreciated is the pressure for older Australian’s to remain in the workforce.

At the end of the employee lifecycle, older employees often face ageism where they are perceived to be coming to the “end of the line” and are “ready for retirement” or forced to retire in order to bring in “young blood.”

In the modern day workplace, employers are becoming increasingly reliant on computer systems and introducing new forms of technology and equipment to increase productivity and output. It is often therefore a requirement that employees be proficient in certain computer programs or, at least, that they undergo training to become proficient.

We’ve all heard of “blind” recruiting, particularly in the early phases of the recruitment process, but what about the opposite? Actively recruiting based on a visual medium? Look no further than the “Snaplication.”

The world has been following the NFL with keen interest these past few weeks after President Trump called on NFL owners to fire players who refused to stand for the US national anthem and flag before a game – raising interesting questions for us sports-loving employment lawyers.

Managing workplace behaviour is a balancing act for employers and HR. Some workplace policies provide examples of unacceptable behaviour and how to deal with it, but these policies cannot hope to address all types of behaviour or prescribe every appropriate redress. Employers need to exercise some judgment when they become aware of inappropriate behaviour and consider carefully whether an employee’s conduct will warrant disciplinary action and, if so, what type.

Organisations have obligations to ensure the health and safety of their employees. One way for organisations to manage the risks is by making use of pre-employment medicals (PEMs).

All employers should be aware that discrimination in the workplace on the basis of a “protected attribute” is unlawful. For example, Australia’s anti-discrimination legislation provides that it is unlawful to discriminate on the basis of “race.”