One might reasonably expect that equality in the workplace is a given. Sadly, based on our experience, it isn’t.
In the news recently was case brought by Government staffer Sally Rugg against her employer, MP Monique Ryan. Ms Rugg claimed she was required to work unreasonable hours for the MP. The word on the street (and in the papers) is that Ms Rugg accepted a confidential settlement of $100,000 from the Government on a without admissions basis, so we do not know all the finer details, but the story serves as a timely reminder of an employees workplace rights.
The Fair Work Act 2009 (Cth) (“the Act”) offers employees a variety of protections. Perhaps most commonly referenced is the protection against being unfairly dismissed. However, the lesser-known general protections are just as important, with some even being enlivened in advance of employment (during the application process for a role), and the others remaining applicable during an employee’s entire tenure.
Employers, managers, and supervisors have a legal obligation to treat all their job applicants and employees on the basis of their individual merit, without consideration of irrelevant personal characteristics. Importantly, they also have a duty of care to ensure that their employees are not harassing any other job applicants or employees. In the recruitment process, all jobs (including traineeships and apprenticeships) must generally be open to all people.
Once employed, employees are owed the obligation to be treated fairly in respect of salary, training, promotion, and workplace benefits. Irrelevant, or discriminatory considerations (such an employee’s religion, or sick leave they require) should play no role in an employer’s decision in relation to the general treatment of an employee. Sadly, this is not broadly reflected within the workforce.
The Australian Human Rights Commission Annual Report of 2021-2022 revealed that in the relevant period there was a general increase in discrimination related complaints of 86.8%. The increase has not gone unnoticed by the Courts, nor policy makers. The same was reflected by the expansion of grounds for discrimination claims in section 351 of the Act. Relevantly, the grounds noted in the section are as follows:
- sexual orientation
- physical or mental disability
- marital status
- family or carer’s responsibilities
- political opinion
- national extraction
- social origin
The three new additions are breastfeeding, intersex status, and gender. The new additions, aptly added, and one might suggest long overdue, exhibit the growing need to address outdated stigmas which can unfairly categorise employees to their detriment.
These relatively new grounds for discrimination claims have already been utilised in matters before the Fair Work Commission (“the Commission”). Some examples of the new attributes being utilised in general protections claims include:
an employee who is overtly overlooked for a promotion due to their intersex status;
a prospective employee’s gender identity has led to the employee not being offered employment with the employer; and
a manager seeks to take disciplinary action against an employee who was breastfeeding her child on a Microsoft Teams meeting.
Whilst it is interesting to note that the new protections have already been subject of cases before the Commission, the old protections have been in place for some time, and operate to protect employees in a variety of circumstances. For instance, an employer may contravene a general protection if they do any of the following:
- dismiss an employee;
- making disadvantageous changes to an employment contract;
- coerce employees, such as:
- threatening employees to take away benefits;
- threatening to termination employment;
- reassigning duties to the employees disadvantage;
- make representations, for example, providing false details about an employee’s rights, including their right to partake in industrial activity and to be a member of a union; and
- place undue influence or pressure on an employee
In the event that the Commission finds that an employer has contravened a general protection, the Commission may Order that an employee be reinstated (if dismissed) or that an employer pay compensation to an employee. In regards to an Order for compensation, damages for general protections claims are uncapped, unlike claims for unfair dismissal which are capped at 6 months.
Importantly, not only can employers be held liable to employees for discriminatory action, but a Court can impose penalties for such contraventions. Those penalties include a maximum fine of $16,500 per contravention for an induvial, or a maximum fine of $82,500 per contravention for a company.
If you consider that you have been discriminated in the workplace on an unjustified basis, such as those notes at i. to xii. above, we encourage you to contact our Firm for a free consultation. Here at Green & Associates we have recently enjoyed obtaining a range of successful outcomes for clients in employment disputes. As we act for the full range of matters that relate to employment law, we are uniquely placed to advise and act for any person or business.