Discrimination in Employment

Employment

The Anti-Discrimination Act 1991 says that all employees should be treated fairly in the workplace.

Case study

At Linda’s workplace, there’s an unwritten rule that all team leaders will work overtime a couple of nights a week. Linda has just been promoted to team leader, and is reluctant to work after hours as she has three young children. She raises the issue with her manager, and makes a few suggestions about how the work could be managed differently.

One suggestion involves re-organising the work so overtime isn’t necessary, but her manager says it’s much easier to leave things as they are, and she’ll have to make her own arrangements so she is available for the overtime. He also says she should have told him she couldn’t do the overtime when she was interviewed for the job. He says if he’d known that, he wouldn’t have offered her the job.

Linda could complain to the Commission about this situation.

What about promotions, training and transfers?

Decisions about promotion and advancement, access to training opportunities and transfers must not be based on discrimination. Refusing to promote workers, denying training and forcing or refusing transfers because of irrelevant considerations based on one of the attributes covered by the legislation, is unlawful discrimination and employers can be held legally liable. Anybody who is subjected to unfair discrimination at work can complain.

Case study

Jacques applied to be transferred from his Brisbane based position to a vacancy at the same level in a remote area of Queensland. His application was refused by his employer on the basis that Jacques’ use of a wheelchair made him unsuitable for the post. Jacques complained that he was discriminated against on the basis of his impairment because the job involved the same duties as his Brisbane position, the remote workplace had sufficient wheelchair access and no other adjustments were necessary to make the workplace suitable for workers with impairments. Conciliation revealed that Jacques’ employer believed that if Jacques left his established support network his work capacity would deteriorate. The employer’s assumption ignored the fact that Jacques had lived independently since leaving his overseas family and did not require the level of support assumed by his employer. Jacques’ employer apologised and agreed to the transfer.

What should I do about workplace complaints and grievances?

Employers should establish grievance and complaints procedures for dealing with complaints of discrimination, sexual harassment and vilification. This maximises the possibility of internal resolution and can help foster employee confidence that concerns will be taken seriously. It can also help to minimise legal liability. Such procedures can be formal, informal or both. For larger employers and organisations, formal procedures go a long way towards fulfilling their duties and responsibilities. Smaller employers also benefit but are often restricted to more informal procedures, especially in workplaces with only a few staff. In such circumstances employers should seek to ensure that employees are informed of their discrimination and sexual harassment responsibilities (eg verbal information, provision of brochures and posters, training etc). Further information, suggestions and assistance for small business can be obtained from the Commission and relevant business and employer agencies.

Case study

Felicity, a young apprentice hair stylist, complained of offensive sexual comments from the manager of the salon where she was employed. She told her employer that this was happening on a daily basis and that it was causing her distress. However, after talking to her employer Felicity found that the other salon staff and the manager then began to criticise her 'attitude' and work performance and soon after she was dismissed. Conciliation of Felicity’s complaint resulted in $7000 in compensation for lost wages and injury to feeling.

Regardless of the size of an organisation, several principles need to be observed for complaint handling and grievance procedures. As far as possible they should:

be clearly documented and accessible to all employees
offer formal and informal options
guarantee timeliness, confidentiality and objectivity
be based on principles of natural justice
be administered by trained personnel
provide clear guidance on investigation procedures and record keeping
give an undertaking that employees will not be victimised or disadvantaged for making a complaint
be regularly reviewed for effectiveness

Employers and organisations must take complaints of discrimination, sexual harassment and vilification seriously. Failure to do so may result in increased legal liability as well as worker dissatisfaction and decreased efficiency and effectiveness.

index of Discrimination in Employment