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Discrimination, Sexual Harassment and Bullying

  • Employees have protections against discrimination when they are applying for a job, while they are working and if they lose their job. The Fair Work Act 2009 (Cth) also protects employees against discrimination at work.
  • You can apply to the Fair Work Commission if your employer has taken adverse action against you because of a protected attribute.
  • Making a discrimination, sexual harassment or bullying complaint can be complex. People are often unsure about the difference between unfair treatment and unlawful discrimination. Make sure to speak to a workplace relations lawyer to understand your rights.

Discrimination

Discrimination in the workplace is where a particular person is treated differently because of a particular characteristic or circumstance, less favourably than a person who does not have that particular characteristic or is not in the same circumstance.

It is unlawful to discriminate against certain attributes of a person including gender, race, sexual preference, age, physical disability, mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, ethnicity or social origin.

Direct Discrimination

Direct discrimination takes place where a person is treated less favourably on the basis of the abovementioned characteristics. This can include making offensive jokes, expressing negative stereotypes, judging a person on characteristics, denying access to premises, not hiring an applicant or firing a person because of a particular characteristic.

Indirect Discrimination

Indirect discrimination takes place when a rule or practice is implemented in the workplace that appears neutral on the surface but has a high proportion of people of a particular characteristic who cannot comply.

Sexual Harassment

Sexual harassment is an unwelcome sexual advance or request for sexual favours. It can also include display of offensive material and remarks with sexual connotations. Sexual harassment may be a criminal offence. The Sex Discrimination Act 1984 (Cth) makes sexual harassment unlawful in some circumstances.

Sexual harassment can take many different forms – it can be obvious or indirect, physical or verbal, repeated or one-off and perpetrated by either men or women against people of the same or opposite sex.

Workplace Bullying

Under the Fair Work Act, workplace bullying is when:

  • An individual repeatedly behaves unreasonably towards a worker at work; and
  • The behaviour creates a risk to health and safety.

Repeated and Unreasonable Behaviour

Bullying must be persistent for it to be considered repeated behaviour. This does not mean that a single incident of workplace bullying should be ignored. All employers have a duty of care and obligation to ensure the health, safety and welfare of employees in the workplace. Unreasonable behaviour is behaviour that is unwarranted in the eyes of a reasonable person in the circumstances.

Examples of Workplace Bullying

  • Threatened or actual physical attacks
  • Offensive, insulting or abusive language
  • Teasing or frequently making someone the target of practical jokes
  • Language or behaviour that causes fear or humiliation or which demeans another person
  • Interfering with a person’s belongings

Key Considerations

  • Making a complaint about discrimination, sexual harassment and bullying can be complex – it is best to speak to a workplace relations lawyer to understand your rights.
  • If bullying is based on a discriminatory ground (e.g., age, race, religion, disability, etc.), you can make a complaint to the State or Commonwealth authorities.

In the Workplace

If employees are being discriminated or sexually harassed at work, they can take some steps to rectify the situation.

Lodging a Complaint

Most external agencies and organisations are unlikely to accept a bullying complaint unless the complainant has tried to resolve it in their workplace first. This can be achieved either through an informal or formal process.

Australian Human Rights Commission

The Australian Human Rights Commission investigates and resolves complaints of discrimination and harassment. This can be based on a person’s sex, disability, race, age and criminal record.

Fair Work Commission

The Fair Work Commission (FWC) is the national workplace relations tribunal that aims to resolve a range of collective and individual workplace disputes through conciliation, mediation and in some cases arbitration.

Frequently Asked Questions about Discrimination, Sexual Harassment and Bullying

Q: What is vilification?
A: Vilification is inciting hatred or serious contempt or severe ridicule of someone because of their race, religion, sexuality or gender identity.

Q: What is the Fair Work Ombudsman?
A: The Fair Work Ombudsman is an independent statutory agency that serves as the central point of contact for free advice and information on the Australian national workplace relations system.

Q: Can I be discriminated for being pregnant?
A: Pregnancy discrimination is when your employer treats you badly or differently in a way that affects you adversely, because of your pregnancy. Parental discrimination is when your employer:

  • treats you badly because you need to look after your children
  • unreasonably insists on work conditions that you cannot comply with because of your children, such as working full-time hours.

How can LegalVision help me?

LegalVision assists businesses and individuals with tailored online legal advice for a fixed-fee, including advice on understanding employer and employee rights in the workplace. Call LegalVision today on 1300 544 755.

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