The Anti-Discrimination Act 1991 says that all employees should be treated fairly in the workplace.
- Promotions, training and transfers
- Workplace complaints and grievances
- Redundancy offers
At Emma's workplace, there's an unwritten rule that all team leaders will work overtime a couple of nights a week. Emma 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.
Emma could complain to the Commission about this situation.
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.
Tony 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 Tony's use of a wheelchair made him unsuitable for the post. Tony 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 Tony's employer believed that if Tony left his established support network, his work capacity would deteriorate. The employer's assumption ignored the fact that Tony had lived independently since leaving his overseas family and did not require the level of support assumed by his employer. Tony's employer apologised and agreed to the transfer.
Workplace complaints and grievances
Employers should establish grievance and complaints procedures for managing 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 (e.g. 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.
Tracey, 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 Tracey 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 Tracey's complaint resulted in financial compensation for lost wages and injury to feelings.
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 options for resolution;
- 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.
Employers and organisations cannot terminate a person's employment because of discriminatory reasons. This means that a worker cannot be sacked because they are 'too old', the wrong sex, have or once had an impairment, become or plan to become pregnant, marry or separate from a partner, join a trade union or political party, are a member of a religious order, are gay, lesbian, heterosexual, transgender or bisexual, a particular race, or because they have a family. Termination of employment must only occur on valid non-discriminatory grounds.
Compulsory retirement (except in very limited circumstances) has been abolished by the legislation. Employers must not sack workers because they are 'too old'. Nor can workers be required to sign agreements that they will retire upon reaching a certain age. People cannot be asked to sign unlawful agreements. An employer should not engage in conduct designed to make someone retire because of his or her age, e.g. the imposition of fixed term contracts, medical assessments or withdrawal of employee benefits such as long service leave for older workers. Such conduct will be unlawful.
When Nick turned 60 years old his office workplace held a celebration party. The next day Nick's supervisor told him it was company policy that because of his age he had to undergo a medical test to determine his continuing work performance capabilities. Although Nick did not think such a test was necessary, he agreed to cooperate because he didn't think the test would show any problems. Shortly after the medical examination Nick was told that he was being put on six monthly reviewable contracts because the test had shown that his physical reaction times had deteriorated slightly. However, Nick's job did not involve physical work and he suspected that his employer wanted him to retire. At conciliation Nick received an apology, compensation and a return to permanent status in his job. The company also agreed to withdraw its policy on age based medical tests and to implement an appropriate workplace anti-discrimination training program.
Redundancies must also be handled in a non-discriminatory way. Employers need to be careful to ensure that decisions about workers being offered a redundancy are not based on direct or indirect discrimination. Often the result of restructuring or financial reorganisation, redundancies provide opportunities for unfair discrimination if not carefully monitored for assumptions and biases. In particular, offering redundancies to workers because of their age, sex, cultural or racial background, or pregnancy etc. will be unlawful discrimination and could be complained about. If discriminatory attitudes inform redundancy decisions employers can be held legally liable.
Laura was the Assistant State Manager for a transport company. After Laura became pregnant she informed her employer and submitted an application for maternity leave for the birth of her child. However, shortly after this, the company merged with another business and was restructured. Laura was then offered a redundancy. In contrast, the recently appointed male Office Manager who had far less experience than Laura was offered the State Manager position. Laura complained of discrimination on the basis of pregnancy and sex and received a financial settlement.