Your Right to Freedom from Discrimination and Harassment at Work
There are a number of federal and South Australian laws which prohibit various types of discrimination in workplaces.
In South Australia, it is unlawful for employers to discriminate against employees on the basis of their:
- race, colour or nationality
- social origin
- sexual orientation
- disability (physical or mental)
- marital status
- pregnancy or caring responsibilities
- political opinion
Who is protected from workplace discrimination?
All employees – including full time, part time, casual, fixed-term, probationary and prospective employees, trainees and apprentices are protected from discrimination at work.
What is workplace discrimination?
Workplace discrimination can include a number of things, including any of the following, when based on the above attributes:
- dismissing an employee
- not interviewing or hiring a prospective employee
- depriving an employee of their legal entitlements
- offering an employee different terms and conditions of employment compared to other employees, or otherwise treating an employee differently to other employees
- denying an employee promotion, training or transfer, or another employment benefit
- requiring an employee to comply with terms and conditions which they are unable to comply with as a result of one or more of the above attributes
- changing an employee’s job, to their disadvantage
Who is protected from workplace harassment?
Most workers, including work experience students, contractors and subcontractors, and volunteers, are protected from workplace bullying.
What is harassment in the workplace?
Harassment is covered by discrimination law however there are additional protections for people who experience sexual harassment in the workplace.
There are two types of sexual harassment covered by the legislation.
The first of these is harassment attached to a benefit or detriment to an employee’s position. This includes where a person tells an employee or implies to an employee that in order to receive a promotion or pay rise, or so as to not lose their job, they must submit to a sexual advance.
The second type of harassment under the legislation is ongoing, unwelcome conduct which impacts an employee’s ability to do their job or creates an uncomfortable, intimidating, offensive or abusive work environment.
It is also generally unlawful for employers to fail to protect employees from sexual harassment by other employees. In these cases, employers may be held vicariously liable for their employees’ sexual harassment.
What to do if you’ve been discriminated against or harassed at work
How you respond to and challenge workplace discrimination or harassment depends on the type of discrimination you have been subjected to.
If you have been dismissed, you can make an application to the Fair Work Commission for unfair dismissal or unlawful termination. It is important that you seek legal advice immediately if you are dismissed, as you must make this application within 21 days of your dismissal.
If your employer has otherwise discriminated against or harassed you, or failed to stop another employee from harassing you, you can request assistance from the Fair Work Ombudsman or make an application to the Fair Work Commission, the Equal Opportunity Commission or the Human Rights Commission.
The legislation sets out a number of remedies for employees who can show that they have been discriminated against or harassed at work. The possible remedies include reinstatement, compensation and injunctions to prevent a person’s employment from being terminated.
The legislation also provides for penalties to be imposed on an employer who engages in unlawful discrimination. The maximum penalty is currently $63,000 for corporations and $12,600 for individuals, for each contravention.
What is bullying in the workplace?
Workplace bullying occurs where a person (or people) repeatedly acts unreasonably towards another person (or people) at work which creates a risk to workplace health and safety.
Bullying can include:
- aggressive behaviour
- pressuring a worker to act inappropriately
- playing practical jokes
- excluding a worker from work events
- putting unreasonable work demands on a worker
However, bullying generally does not include any behaviour which may be characterised as ‘reasonable management action’ carried out in a reasonable way, such as taking disciplinary action against a worker or directing the way in which a worker is to carry out their work.
What to do if you’ve been bullied at work
If you feel like you are being bullied at work, generally the first thing you should do is speak with someone at work, particularly your manager, supervisor or health and safety representative, if you feel comfortable to do so. It can also be useful to speak to your union representative.
If your employer and/or union are unable to resolve the bullying, you can take legal action in the Fair Work Commission to stop the bullying.
It is important that you get legal advice before making a claim so that you understand the process you are engaging in, get an idea of your chances of success, and are aware of the potential remedies that may be available to you.
Johnston Withers Lawyers: Employment Lawyers you can trust
If you are dismissed as a result of discrimination it is important that you get legal advice as soon as possible, as strict time limitations apply. We can also help if you are experiencing discrimination or harassment or bullying at work, and we have a wealth of experience in advising and representing employees in relation to discrimination, bullying and harassment claims.
If you would like our help, please contact us on (08) 8231 1110 or get in touch online.