It goes without saying that the workplace should be safe and free from discrimination – and in an ideal world, this would be the case. For the most part, Australian workplaces are excellent when it comes to protecting workers from harm, however, there may be the odd occasion where discrimination does occur and in such an instance, it’s always advisable that you contact a lawyer who will be able to assist.
What is discrimination?
Many of Australia’s workplace discrimination laws have a basis in international human rights guarantees that seek to promote workplace equality, and discrimination laws are generally enforced at a State or Territory level.
Discrimination in the workplace generally fall into two categories: direct and indirect discrimination. Direct discrimination is when a person is treated less favourably due to their gender or race, while indirect discrimination involves actions that may involve an imposition of a condition, requirement or practice in which one class will be able to comply with, while another class of employees will fail to do so.
Other behaviours that can also amount to unlawful discrimination may include the following:
- conduct that is intimidating, offensive or humiliating;
- unwanted and offensive sexual behaviour amounting to sexual harassment;
- treating an employee adversely because he or she has lodged a complaint of discrimination against an employer.
The important thing to remember is that discrimination in the workplace in any form is unacceptable, and the various legislative instruments prohibiting such behaviour whether it is at a federal (Racial Discrimination Act 1975; Sex Discrimination Act 1984), State (Anti-Discrimination Act (NSW and QLD) and Territory level (Discrimination Act 1991 (ACT), Anti-Discrimination Act 1992 (NT)) is reflective of the gravity in which adverse actions against employees is treated by the law.
An employer cannot discriminate against someone who has taken maternity leave
In Thomson v Orica Australia (2002) 116 IR 186;  FCA 939, the Federal Court found that the respondent had engaged in direct discrimination after an experienced account manager who upon returning from maternity leave, was offered a position with a similar salary and title, but in a smaller division with less valuable clients. The applicant had an expectation of returning to the same role she held prior to taking maternity leave, and in addition, no reason or explanation was provided as to why there was a change in nature of the applicant’s role. Interestingly, the respondent also had an explicit policy that allowed employees who took family leave, to return to their previous position, or a comparable position if the role no longer exists.
The applicant eventually abandoned her role and lodged a complaint stating that the actions from her former employer amounted to a repudiation of the contract of employment. Ultimately, the Federal Court agreed with the applicant that the employer had repudiated the contract and although a comparable salary and title was provided upon the applicant’s return, this did not however change the fact that she was given a position that was lower in status when taking into account the tasks, duties and responsibilities.
Furthermore, the Federal Court also found that the respondent’s demotion of the applicant amounted to less favourable treatment which was in contravention of the Sex Discrimination Act 1984 (Cth). Allsop J, ruled that the discrimination was unlawful and the applicant was treated less favourably on the grounds of her pregnancy and her sex and his Honour went on to say:
“A physical characteristic that appertains generally to women who are pregnant is that the birth of the child necessitates some confinement and so some inability to work or undertake duties whether in paid employment or otherwise. In some cases the relevant period of time may be short. However, generally, there will be some inability to attend to a usual occupation and so some requirement for leave from that occupation. To that extent, leave, that is absence from a woman’s usual occupation, generally occurs and so can be said to be a characteristic that appertains generally to pregnant women. It is thus able to be said that the need to take, and the taking of, some ‘maternity leave’ is a characteristic of pregnancy… Thus the applicant had demonstrated unlawful discrimination…”
Discrimination and harassment in the workplace in any form should not be tolerated and if you, or anyone you know is experiencing any difficulties in the workplace, should contact a lawyer who will be able to assist with any employment matter.