Employees and prospective employees now have the option to pursue discriminatory behaviour by employers under industrial legislation.
Under the Fair Work Act, an employer must not take ‘adverse action’ against an employee or a prospective employee because of the person’s race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
Previously, Industrial legislation only protected employees who were dismissed for a discriminatory reason. However, the meaning of adverse action is quite broad. Adverse action includes dismissal, altering the position of the employee to the detriment of the employee, discriminating between employees, refusing to employ a prospective employee or discriminating against the prospective employee in the terms or conditions offered to them.
An application to Fair Work Australia must be filed within 60 days of the ‘adverse action’ occurring. A compulsory conference is then held between the parties and Fair Work Australia. A general protections application to the Federal Magistrates Court or the Federal Court must be made within 14 days after the certificate is issued.
Alternatively, you can lodge a complaint with the Fair Work Ombudsman who can investigate the matter. The Fair Work Ombudsman can initiate legal proceedings against an employer. Penalties can be ordered of up to $6,600 for individuals and $33,000 for corporations.
The Fair Work Act requires that the employer must prove that the adverse action was not taken because of a prohibited reason (for example, discrimination) and it is possible that a finding of adverse action will be made if the prohibited reason was only one of the reasons for the adverse action. There is no requirement that it must be a dominant or substantial reason for the adverse action as is the case with Discrimination Legislation.
If the matter proceeds to the Federal Magistrates Court or the Federal Court the following orders can be made:
· Reinstatement
· Compensation
· Injunction
The employer can also be fined.
If you believe you have been discriminated against in the workplace, contact one of our employment lawyers to discuss your options. Remember, applications to Fair Work Australia must be made within 60 days of the adverse action occurring.
