Discrimination Law Training Liz Meyer & Laura Brown, Kingsford Legal Centre Tuesday, 27 November 2012

Unfair Dismissal General Protections Discrimination

In a nutshell... Employee needs to have been dismissed or significantly demoted Dismissal needs to be harsh, unjust or unreasonable Limited eligibility (income threshold, minimum employment period) Short time limit – 14 days to apply! Limited remedies – reinstatement or max. 26 weeks lost wages No costs jurisdiction Unfair dismissal ‘Adverse action’ taken against employee Action taken linked to workplace right or protected trait No ‘eligibility’ requirements Time limit varies between 60 days (dismissal) and 6 years (no dismissal) Remedies - eco loss, non-eco loss, pecuniary penalties, reinstatement No costs jurisdiction & reverse onus of proof General protections Direct (less favourable treatment) – use a comparator Indirect (disadvantage or inability to comply) – test varies from Act to Act No ‘eligibility’ requirements Time limits flexible – though within 12 months recommended Remedies – eco loss, non-eco loss, reinstatement (rare) Costs/remedies vary between state and Commonwealth courts/tribunals Discrimination

Step by step Is the client eligible? Are they within time? Is the action prohibited? Is there a defence or exemption? What remedy do they want? Are there other factors?

Eligibility Unfair dismissal Employees Dismissed or Significantly Demoted Low income or MA /EA covered Meet minimum employment period Casuals must be regular & systemic General Protections Employees, prospective employee, contractors, employees of contractors Adversely affected Private enterprise or Cth public servant Action occurred after 1Jul09 or 1Jan10 Discrimination Employee, prospective employee, commission agent or contract worker Treated less favourably or disadvantaged Various exemptions dependent on Act

14 days from day dismissal took effect – apply to FWA Did the employee stop working the day they were notified? Did the employee work out their notice period? Extensions in “exceptional circumstances” Unfair dismissal 60 days from day dismissal took effect – apply to FWA 14 days from date certificate issued - apply to FC/FMC Extension in “exceptional circumstances” General Protections - dismissal Application may be made to FWA or Applicant may apply directly to court within 6 years of action taking place General Protections - no dismissal AHRC may terminate a complaint made more than 12 months after alleged discrimination - may still apply to FC/FMC within 60 days ADB may decline complaint made more than 12 months after alleged discrimination – decision to decline is not reviewable by the ADT Discrimination Time limits

What is prohibited? Unfair dismissal Harsh, unjust or unreasonable Valid reason – capacity/conduct Non-genuine redundancy Breaches SB Fair Dismissal Code General Protections Workplace rights Discrimination Coercion Temporary absence Sham arrangements Discrimination Less favourable treatment (compared to comparator) Condition/ requirement/ practice that disadvantages & is unreasonable

Includes constructive dismissal Choosing employee for redundancy Forcing employee to retire Dismiss the employee Issuing a ‘show cause’ letter Commencing investigation without reasonable cause Suspending or not allowing employee to attend workplace Limiting access to promotion/training/resources/other benefits Injure the employee in his or her employment Giving a formal warning that leads to reduced security Changing access to overtime/beneficial shifts, commissions, etc Demotion Changing award or EA classification, pay rate, etc Alter the position of the employee to the employee’s prejudice Increase/reduce comparative workload, quality of work available Bullying or harassment to one employee/select group of employees Different application of policies Discriminate between the employee & other employees of the employer What does ‘adverse action’ mean?

What traits are protected? FWAct s351 Race, colour, national extraction Sex, marital status, family or carer’s responsibilities or pregnancy Sexual preference Age Physical or mental disability Religion Political opinion Social origin Cth Laws Race, colour, descent or national or ethnic origin, status as immigrant of person Sex, marital status, pregnancy or potential pregnancy, breastfeeding and family responsibilities Age Disability (broadly defined), carer, assistant, assistance animal & disability aid Associates included NSW ADA Colour, nationality, descent and ethnic, ethno-religious or national origin Sex, pregnancy or potential pregnancy and breastfeeding Transgender status Marital or domestic status Age Disability (broadly defined), aids, assistants, etc Carer’s responsibilities Homosexuality Associates included

Some things to think about... Indirect discrimination – has the employee been injured in their employment? Is the trait as broadly defined in the FWA? Harassment – how is vicarious liability dealt with?

What are the defences? General Protections Action taken because of inherent requirements Not unlawful under state or territory discrimination law Religious exemption Discrimination Disability – inherent requirements & unjustifiable hardship Sex/Race – genuine occupational qualification Remember there may be exemptions/exceptions

What remedies are available? Unfair Dismissal Reinstatement (and ‘make-up’ pay) Max 26 weeks lost wages General Protections Uncapped compensation for economic loss Uncapped compensation for general damages Reinstatement Injunctions Pecuniary penalties Cth Laws Uncapped compensation for economic loss Uncapped compensation for general damages Reinstatement Injunctions NSW ADA Max compensation of $100,000 for economic loss and general damages Injunctions

What factors might impact a decision? Initial conciliation/ investigation process How fast does the process move? What is the role of the complaint-handling body? What does conciliation look like? Court / tribunal process Who does the onus of proof fall on? What are the costs, risks, etc.?

Adverse Action No Dimissal Apply to Court within 6 years Apply to FWA Conciliation if parties consent Settle Apply to Court Dismissal Apply to FWA within 60 days Conciliation must be held Settle Certificate Issued Apply to Court within 14 days General Protections Process

Discrimination Complain to AHRC Terminated Apply to Court w/i 60 days Investigation & Conciliation SettledTerminated Apply to Court w/i 60 days Complain to ADB Declined Investigation & Conciliation Declined Referred to ADT Settled Discrimination Process

Case Study 1 – Client is of Spanish background and 45+ Applies for promotion Asked seemingly irrelevant Qs in interview Doesn’t get promotion Feels she was best qualified for promotion

Case Study 2 – Client goes on maternity leave Returns part-time Client goes on maternity leave again Employer says must return full-time Client wants to keep job but can’t comply

Case Study 3 – Client is diagnosed with cancer Requests time off for chemo Employer says ‘no’ Client resigns Would it be different if client was dismissed?