By Sid Sidhu and Justine Ansell, NRA Legal
Over the past few days, news surrounding the same-sex marriage (SSM) plebiscite has dominated Australian media. Most recently, we have heard the story of 18-year-old Madeline, who was fired after posting her views on SSM to her Facebook profile. Although the sacked employee is yet to make any claims against her employer, this event serves as a reminder to employers of their obligations under anti-discrimination and Fair Work laws.
What do I need to know as a business owner?
Anti-discrimination laws operate on a State and Federal level and are a complex web. In short, they prohibit an employer from discriminating against an employee (i.e. treating an employee less favourably) because of the employee’s religion, political belief and/or political activity (also known as ‘protected attributes’).
It is a complex web because the laws vary in each State. For example, in New South Wales, discrimination on the basis of religion is not explicitly prohibited, but may be tied into the protected attribute of ‘race’ where there is a strong association between a person’s nationality, ethnicity, culture or history and his or her religious beliefs and practices. Similarly, discrimination due to political opinion or affiliation is not expressly forbidden in New South Wales.
Further, in South Australia, the anti-discrimination laws are more limited, and it is only unlawful to discriminate on the basis of a person’s religious appearance or dress. Political belief or political activity as protected attributes are not covered by the South Australian discrimination laws.
On a Federal level, the Fair Work Act 2009 (Cth) (FWA) also prohibits an employer from taking adverse action against an employee because of their religion or political opinion.
‘Adverse action’ is broadly defined and would include, for example, not hiring a person, dismissing an employee, refusing to pay out entitlements, changing an employee’s job to their disadvantage or treating an employee differently to others – because of the employee’s religion or political opinion. Whilst we note that there are a number of exceptions to what constitutes adverse action, again this is a complex area and we recommend that members contact the NRA to obtain more specific advice.
Case examples
In Kubat v Northern Health [2015] FCCA 3050, a part-time employee brought an application alleging adverse action, as she was refused to return to work following time off on WorkCover for her depression. The court in this case took into consideration the employer’s motivations for the discrimination to determine whether it was unlawful, as well as the essential elements of the position. In the eyes of the Court, this extends beyond the physical tasks of the role to implied duties of fidelity and good faith, the exercise of reasonable care and skill and adherence to work health and safety protocols. The employee’s claims were ultimately dismissed, as the inherent requirements of her role required her to work in stressful and problematic situations. Practically, this means employers may defend their actions where they can prove that the decision was made due to the employee’s inability to fulfil the inherent requirements of the role and not because of a protected attribute.
What are the risks?
Damages for a discrimination claim are uncapped, highlighting the risk that employers are exposed to should they unlawfully terminate their employees on discriminatory grounds.
Victims of unlawful discrimination can also claim compensation for economic losses as well as non-economic losses such as hurt, distress and humiliation. To illustrate this point, an employee who was terminated by a Queensland Regional Council for his affiliation with a political figure was awarded a total of over $300,000.
Importantly, employers can face maximum penalties of up to $63,000 and individuals can face maximum penalties of up to $12,600 per breach of the FWA for unlawful discrimination. The Federal Court also broad powers make any orders it deems appropriate, such as injunction (to prevent discrimination from occurring), reinstatement and/or compensation to be paid to an employee who has endured unlawful discrimination in their employment.
There are provisions in place to prevent employees from double-dipping in multiple State and Federal claims. However, employers should be mindful that an employee may pursue a general protections claim where their application under anti-discrimination law has been withdrawn or has failed on jurisdictional grounds.
How can I protect my business?
In light of these broad protections for employees and the significant costs and penalties that are being handed down by the courts for breaches, employers need to be aware of the anti-discrimination laws and operate within these. This means not making decisions because of an employee’s religion, political beliefs and/or political activity. If an employer is making decisions on this basis, they run the risk of not complying with the anti-discrimination laws and the risk of significant claims as well as reputational and brand damage.
To adequately manage these risks, NRA Legal can assist in preparing the right policies, procedures and training for your business, which support a cohesive and productive workplace and compliance with the anti-discrimination laws. The benefits include the reduced likelihood of claims as well as improved employee morale.
For more information, call us today on 1800 RETAIL (1800 738 245) and speak with one of our team to ensure your business is managing its risks in this space.