Discrimination and Harassment

Workplace discrimination generally refers to an employee or job applicant being treated less favourably at work because of certain protected attributes.

Common protected attributes include:

Trade union activity or the exercise of workplace rights.

Discrimination may occur in recruitment, hiring, remuneration, rostering, promotion, training, performance management, disciplinary action, redundancy or dismissal.

For example, an employee whose shifts are reduced because of pregnancy, who is excluded from promotion opportunities because of age, or who is consistently assigned to poorer roles because of racial background may all raise workplace discrimination issues.

Sexual harassment refers to unwelcome conduct of a sexual nature that may make a person feel offended, humiliated or intimidated. It can occur between colleagues, managers, clients, suppliers or other people connected with work. Common examples include:

Offering a position, shifts, promotion or work opportunities in exchange for sexual favours.

Sexual harassment does not only happen in the office

Sexual harassment can occur in the office, at work meals, company events, business trips, client meetings, work group chats, social media or other settings connected with work.

The person responsible need not be a colleague or manager either. Sexual harassment by clients, suppliers, contractors or other people connected with work may also make the employer responsible for dealing with it, particularly where the employer knew, or ought to have known, that the problem existed but failed to take appropriate steps.

The impact of sexual harassment on employees
Sexual harassment can affect an employee’s ability to continue working, their career development, mental health, income and working relationships. Some employees delay making a complaint because they fear reprisals, being doubted, losing their job, or harm to their visa and career prospects.

These matters usually call for particular care with how communications are handled, confidentiality arrangements, the preservation of evidence and the complaint pathway. Before taking action, an employee may first obtain legal advice and then decide whether to make an internal complaint, lodge an external complaint, take part in mediation or pursue further proceedings.

Workplace bullying generally involves repeated unreasonable behaviour that creates a risk to an employee’s health and safety.

Common situations include:

Persistently singling out one employee within the team.

Reasonable performance management, changes to roles or disciplinary action do not in themselves necessarily amount to bullying. What matters is whether the conduct of the employer or manager is reasonable, whether it is carried out in an appropriate manner, and whether it creates a risk to the employee’s health and safety.

Reasonable management action is not bullying
An employer may conduct reasonable performance management, set work requirements, allocate tasks, give feedback or take disciplinary action. However, these management actions need to be carried out in a reasonable manner and should be based on genuine work issues.

For example, a manager may point out an employee’s mistakes, but may not deal with the issue through ongoing humiliation, threats, public belittling or isolation. A business may put in place a performance improvement plan, but may not use performance management to create an environment in which the employee can no longer continue working.

The legal consequences bullying may bring
Workplace bullying can give rise to a range of legal issues.

For employees, this may involve a stop-bullying application, a work-related psychological injury claim, a general protections application, constructive dismissal or unfair dismissal. For employers, a bullying complaint may also engage obligations to provide a safe working environment, obligations to investigate internally and management responsibilities.

If the employee remains in their job and the bullying is continuing, a Stop Bullying Order may be one of the pathways to consider. The focus of such an order is usually to require the relevant conduct to stop, rather than to compensate for all losses that have occurred in the past.

After experiencing workplace discrimination, harassment or bullying, an employee should try to keep a record of what happened.

The record may include:

The effect the incident had on work, health or income.

Many workplace problems do not appear all at once in clear documentary form, but are scattered across rosters, emails, meetings, performance reviews, chat records and management decisions. The sooner the timeline is organised, the easier it is to assess whether there is a legal issue that can be addressed.

Some matters can first be dealt with through an internal complaint, the human resources department, a direct manager or the company’s complaints mechanism. An internal complaint can sometimes prompt the company to investigate, adjust working arrangements, stop the improper conduct or arrange mediation.

However, before complaining, an employee needs to consider who the complaint is directed at, whether the company has a suitable complaints process, whether there is a risk of reprisal, and how the complaint should be worded. Where the matter involves sexual harassment, serious bullying, the involvement of management, complex evidence, or a situation that may lead to leaving the job, it is advisable to obtain legal advice before formally lodging the complaint.

Where an employee is treated adversely because they made a complaint, assisted an investigation, asked about pay entitlements, applied for leave, raised a safety concern or exercised other workplace rights, this may raise issues of reprisal or adverse action. Common reprisals include:

Every step of communication after a complaint should be carefully documented. If the employer takes adverse measures soon after a complaint, that timeline may become important evidence in any later case.

After receiving a complaint of discrimination, harassment, sexual harassment or bullying, an employer should first confirm the substance of the complaint, the people involved, when the events occurred, whether there is any immediate safety risk, and whether interim measures need to be taken.

Interim measures may include adjusting reporting lines, arranging different shifts, requiring the people involved to avoid contact, providing support services, or, in serious cases, arranging paid suspension pending investigation.

When dealing with a complaint, an employer needs to avoid downplaying it, telling the employee to “sort it out themselves”, allowing the manager involved to handle the complaint directly, or reaching conclusions in advance without an investigation.

Where serious allegations are involved, an employer usually needs to establish the facts through a workplace investigation. The investigation should, as far as possible:

If the complaint involves senior management, human resources staff, directors, or a long-running conflict between several people, an external independent investigation may be more appropriate.

After the investigation is complete, the employer needs to decide on the next steps in light of the findings. Subsequent measures may include warnings, training, mediation, changes to roles or reporting lines, disciplinary action, termination of employment, updating company policies, strengthening training or improving the complaints process.

If the findings may lead to dismissal, the employer should pay particular attention to procedural fairness, the quality of the evidence and the reasons for the decision. Handling it poorly may give rise to unfair dismissal, a general protections application, a discrimination complaint or other employment law disputes.

Some matters can be resolved through an internal complaint, investigation, mediation, changes to roles, training or management reforms. Matters suited to internal resolution usually require the company to have a credible complaints process, the people involved to be willing to cooperate, and no serious safety or reprisal risk to be present.

If internal handling is ineffective, or the problem is more serious, an employee may need to consider an external complaint or legal proceedings. Possible pathways include:

Different pathways have different eligibility requirements, time limits and available outcomes. Before choosing a pathway, it is necessary to establish the facts of the matter, the employment status, whether the person is still employed, whether they have already been dismissed, the nature of the losses and the state of the evidence.

NS Legal can assist both employees and employers with workplace discrimination, sexual harassment, workplace bullying, reprisals and related workplace disputes.

We can assist employees to:

Assess whether there is an unfair dismissal, general protections, discrimination complaint or other legal pathway.

We can assist employers to:

Reduce the risk of subsequent Fair Work, anti-discrimination complaints or other employment law disputes.