Posts: Discrimination

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Employer unlawfully discriminated against employee with breastfeeding responsibilities

It’s a tent-s situation

There are a number of personal attributes that are protected by Australia’s federal and state anti-discrimination laws, such as a person’s race, sex, pregnancy, marital status, family responsibilities, breastfeeding, age, disability, sexual orientation, gender identity or intersex status.


Managing Injured Employees - A Guide for Employers

In her usual entertaining and informative style, our Managing Director and Principal, Athena Koelmeyer, will guide employers through the tangled web of legislative obligations they face when dealing with an injured employee.


Criminal records and employment

Off the record

While the internet has made the world seem smaller and more connected, the ability to have unlimited information at our fingertips carries a risk for employers that what is found on the internet will be used to unlawfully discriminate against people in their employment.


Court finds multiple breaches of general protections provisions

Direction needed

The Federal Circuit Court of Australia (the Court) recently ruled on an application brought by an employee alleging that three respondents had engaged in breaches of the Fair Work Act 2009 (Cth) (FW Act), including sham contracting and dismissing the employee because she was pregnant.


Employee dismissed for exercising workplace right to take leave

Diamonds are not a girl’s best friend

The general protections provisions under the Fair Work Act 2009 (Cth) (FW Act) provide protections against adverse action which is taken for a prohibited reason. Prohibited reasons for taking adverse action include situations where a person has a workplace right and exercises (or proposes to exercise) that right. Workplace rights include the right to utilise leave entitlements under the FW Act.


Court finds rescinded job offer was not age discrimination

The rooster and the sunrise

Discrimination in the workplace is unlawful under a number of Australian laws, including state and federal anti-discrimination legislation (such as the Age Discrimination Act 2004 (Cth)) as well as the Fair Work Act 2009 (Cth) (FW Act).


Sexual harassment and work health and safety

New guidance material released by Safe Work Australia

Australia has long had in place state and federal anti-discrimination legislation which recognises sexual harassment as a form of sex discrimination and makes sexual harassment in the workplace unlawful.


“All reasonable steps” and vicarious liability

You're a liability

Federal and State anti-discrimination legislation makes it unlawful for employers to discriminate against or harass a person in their employment. The legislation also places liability on employers for the discriminatory conduct of their employees.


Employee dismissed for offensive remarks in the workplace

What did you say?

It goes without saying that employees should treat each other with respect and courtesy in the workplace. In a recent decision, the FWC was tasked with considering a claim from a dismissed employee who alleged that remarks he made in the workplace were not offensive and did not justify his dismissal.


Why clubs need to regulate fan and member behaviour at sporting events

Have a seat and take a stand

Racial abuse from fans and/or members certainly falls foul of discrimination laws and can lead to significant questions being asked of clubs and organisations about what steps they took or could have reasonably taken to prevent players from being subject to such behaviour.


Court rejects employee’s proposed adjustments to workplace

Put it in writing

Australia’s anti-discrimination legislation imposes positive obligations on employers to make reasonable adjustments in the workplace to accommodate an employee’s disability, unless doing so would cause unjustifiable hardship to the business.


Employees, their relatives and social media – where is the line?

Brand -new day

The 76ers are in the spotlight again following recent posts on the Twitter account of Bob Muscala, the father of one of its players.


Small Business Employers and Anti-Discrimination Legislation

The fine cut

Small businesses have a litany of rules, regulations and red tape they are required to comply with, including registration and tax compliance, employee minimum entitlements, fair trading, work health and safety and privacy obligations.


$200,000 penalty imposed for adverse action taken against employees underpaid because of their race

Losing on penalties

Fair Work Ombudsman’s (FWO’s) successful prosecution of a hotel operator and its owner who took adverse action against two employees because of their Chinese race and Malaysian extraction.


The return to work guarantee under the Fair Work Act 2009 (Cth)

100% guaranteed

Tennis champion Serena Williams as she returned to her first Grand Slam tennis tournament following the recent birth of her daughter.


Why the term ‘hush money’ is misleading

Hush Hush, Hush!

Settlement agreements, terms of settlement, deeds of release or release and undertakings are all terms which are used interchangeably to refer to the binding and confidential agreements.


Anglo Saxon applicants preferred in online job advertisement

Need not apply

Job advertisements should be carefully drafted to ensure that they focus on the essential skills of the position and not any irrelevant or subjective factors.


Facebook and Google’s new workplace dating policy

One strike and you’re out

In a proactive attempt to combat the issue of workplace sexual harassment, Facebook and Google have implemented new policies on dating in the workplace. This new approach adopts a “one strike and you’re out” rule, which states that employees only have one opportunity to ask a co-worker out on a date.


Positive discrimination in the workplace

The balancing act

Across the world, issues of equality and justice have taken centre stage recently. We are experiencing a time of increased awareness about the need to redress past discrimination and prejudice towards many minority groups.


Australia’s racial discrimination laws – Does intention matter?

“Boo” or “Boo-Urns”

There was much conversation last week regarding the certain sections of AFL crowds booing and jeering former Australian of the Year, Adam Goodes. As most people know Adam is a Sydney Swans AFL player, a proud indigenous man and a prominent advocate on behalf of the Australian indigenous community.


Rock, paper, scissors: injury, illness or disability?

What are reasonable adjustments?

In July 2015 the Federal Circuit Court of Australia delivered its judgment in Huntly v State of NSW, Department of Police and Justice (Corrective Services NSW) [2015] FCCA 1827 (Huntly’s case). The Court found that Corrective Services NSW unlawfully discriminated against Huntly and failed to make reasonable adjustments after she was diagnosed with Crohn’s Disease.


Employers’ vicarious liability for employee’s discriminatory conduct

Employers may be found to be vicariously liable for their employee’s discriminatory conduct where it is not demonstrated that it took “all reasonable steps” to prevent the employee from doing the discriminatory act

The decision of the Northern Territory Anti-Discrimination Commission in Frances Newchurch v Centreprise Resource Group Pty Ltd, Mr Graham Ride and Ms Sarah Ride [2016] NTADComm 1 (Newchurch decision) highlights that employers may be found to be vicariously liable for their employee’s discriminatory conduct where it is not demonstrated that it took “all reasonable steps” to prevent the employee from doing the discriminatory act.


Beware of racial discrimination in the recruitment process

A rose by any other name?

One of the potential dangers to businesses in the recruitment and selection process is to omit an applicant with a name which may indicate their race, descent, national or ethnic origin from the selection process.


Advertising for female only staff

The real employees (of Melbourne)

In an attempt to reduce the gender imbalance in Melbourne University’s School of Mathematics and Statistics, the University is now advertising three permanent positions exclusively for female applicants only.


FWC finds pregnancy not a valid reason for dismissal

“No one puts baby in a corner”

There are a range of laws in Australia that protect people who are pregnant from discrimination and most employers are aware that pregnancy related discrimination in the workplace is unlawful. However, assumptions about the capacity of pregnant employees are often made without proper expert advice and unfortunately we are still seeing employers unlawfully act against the interests of pregnant employees.


Age discrimination and employment

Wise, worldly and working

For the first time in history, there are five generations of Australians participating in the workforce at once, and whilst it’s widely acknowledged that Australia has an aging population, what is less commonly appreciated is the pressure for older Australian’s to remain in the workforce.


Part 3: Older workers and discrimination on termination of employment

End of the line

At the end of the employee lifecycle, older employees often face ageism where they are perceived to be coming to the “end of the line” and are “ready for retirement” or forced to retire in order to bring in “young blood.”


Part 2: Age discrimination and technology in the workplace

Just Google it

In the modern day workplace, employers are becoming increasingly reliant on computer systems and introducing new forms of technology and equipment to increase productivity and output. It is often therefore a requirement that employees be proficient in certain computer programs or, at least, that they undergo training to become proficient.


Part 1: Video “Snaplications” and the potential for age discrimination in recruitment

Selfie time

We’ve all heard of “blind” recruiting, particularly in the early phases of the recruitment process, but what about the opposite? Actively recruiting based on a visual medium? Look no further than the “Snaplication.”


Can employers legally dismiss an employee for “taking a knee”?


The world has been following the NFL with keen interest these past few weeks after President Trump called on NFL owners to fire players who refused to stand for the US national anthem and flag before a game – raising interesting questions for us sports-loving employment lawyers.


FWC says unacceptable comment in the workplace didn’t warrant dismissal

Crime and Punishment

Managing workplace behaviour is a balancing act for employers and HR. Some workplace policies provide examples of unacceptable behaviour and how to deal with it, but these policies cannot hope to address all types of behaviour or prescribe every appropriate redress. Employers need to exercise some judgment when they become aware of inappropriate behaviour and consider carefully whether an employee’s conduct will warrant disciplinary action and, if so, what type.


The value of pre-employment medical examinations

All PEMs should be specifically tailored, as different jobs have different requirements

Organisations have obligations to ensure the health and safety of their employees. One way for organisations to manage the risks is by making use of pre-employment medicals (PEMs).


Ethnic slurs in the workplace

That’s my pejorative

All employers should be aware that discrimination in the workplace on the basis of a “protected attribute” is unlawful. For example, Australia’s anti-discrimination legislation provides that it is unlawful to discriminate on the basis of “race.”