FAQs - your questions answered
Direct workplace discrimination is being dismissed, demoted, disadvantaged or treated badly at work because of your:
- disability or impairment
- family or carer's responsibilities
- marital status
- union or industrial activity
- sexual orientation
- political belief or activity
- personal association with someone who has, or is assumed to have, one of the above characteristics, or
- having made a complaint or inquiry about your employment.
Indirect discrimination occurs where a condition, requirement or practice is imposed on you that disadvantages you because of an attribute you have. For example, the requirement that you regularly attend staff meetings outside of school hours if you are known to have family or caring responsibilities could amount to indirect discrimination.
In some circumstances your employer may have a positive obligation to accommodate you. For example, your employer might have an obligation to accommodate you if you have a disability, impairment or injury, in order to assist you to do your job. These obligations can extend to employers allowing flexible working arrangements to accommodate carer's responsibilities. For example, if you are a parent or carer your employer might have an obligation to allow you to work from home on particular days. If your employer refuses, it could amount to workplace discrimination.
To prove workplace discrimination you must prove that you have been treated unfairly or differently from your colleagues and show that the treatment is linked to one of the above direct workplace discrimination attributes.
Types of conduct that might constitute less favourable treatment include:
- refusing to employ someone
- setting unfair terms of employment
- denying access to a training program
- refusing or limiting access to opportunities for promotion, transfer or other employment benefits, or
In addition to seeking legal advice, you can also do a number of simple things which may assist. They include:
- Keep a diary. Take notes of all the workplace bullying and harassment that happens to you, when it happens and who the perpetrator is.
- Be informed. Make sure you have a copy of your contract of employment, enterprise agreement and workplace policies and procedures that deal with occupational health and safety and harassment.
- If you are a union member, contact your union. Many unions are experienced in dealing with workplace bullying and harassment. If the workplace bullying and harassment is affecting a number of employees there are advantages to addressing it collectively.
- Speak to your OH&S representative. Get advice about procedures in your workplace.
- Address the situation early. Employees who are subject to workplace bullying and harassment often put the issue to one side and wait before it gets really bad before addressing it. By this time the employee may have already suffered a work related stress injury and if this is the case, they may not be able to continue working.
- Make a complaint. Employees who make a complaint or inquiry in relation to their employment are protected from adverse action under the Fair Work Act 2009. It is better if the complaint is in writing because this will be easier to use as evidence should the need arise. When writing a complaint be concise and stick to the key points.
- Take care of your health. Your mental and physical health is very important. If workplace discrimination, bullying or harassment is affecting you, make sure you see your doctor about it.
- Seek advice. Working out which legal or practical decisions to make can be difficult with workplace discrimination cases. We can provide support and advice on a range of legal and personal matters.
If you have made a complaint, brought proceedings or acted as a witness in someone else's claim for workplace discrimination, it is unlawful for any person including your employer to victimise you or terminate your employment.