Discrimination and Sexual Harassment for Employees

If you’re the unfortunate victim of either, it’s important to know what next steps to take to have the issue addressed and resolved.

What you need to know about Discrimination and Sexual Harassment as an Employee

Experiencing discrimination or sexual harassment at your place of work is a deflating and often humiliating experience. If you’re the unfortunate victim of either, it’s important to know what next steps to take to have the issue addressed and resolved.

Your employer has a legal responsibility under the Fair Work Act 2009 to ensure discriminatory treatment is not part of their business, and under the Sex Discrimination Act 1984 for any cases of sexual harassment, lest they be vicariously liable for the actions of one of its employees.

Employers are encouraged to have clear and consistent policies on both issues, under which an employee can make a complaint, have it investigated and ultimately resolved.

This process can sometimes be confusing and time-consuming, particularly if you’re also dealing with the disappointment or trauma of what happened to you at work. In this situation, expert legal advice from a lawyer with wide experience in this area of workplace policy is a good idea. Peters Bosel Lawyers have an extensive background in interpreting the law, investigating incidents and representing parties in matters of workplace discrimination or sexual harassment.

What is the definition of unlawful discrimination?

You are subject to discrimination by an employer if they take any ‘adverse action’ against you based on attributes of race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion or national extraction or social origin.

Under the Fair Work Act 2009, adverse action by an employer based on a discriminatory reason comprises:

  • Dismissing an employee;
  • injuring an employee in their employment;
  • altering an employee’s position to their detriment;
  • discriminating between one employee and other employees;
  • refusing to employ a prospective employee;
  • discriminating against a prospective employee on the terms and conditions in the offer of employment.

It’s unlawful for an employer to discriminate against an employee through any of the adverse actions above. This applies whether you’re full-time, part-time, casual, probationary, an apprentice or trainee, or whether you’re employed for fixed periods of time or tasks. A corporation can be penalised a maximum of $63,000 for adverse action on discriminatory grounds, and an individual a maximum of $12,600.

If as an employee you feel you were dismissed based on one of the attributes above (e.g. race, sex, age, disability, etc), you can make an application to the Fair Work Commission within 21 days of your termination for your complaint to be investigated. If you were not dismissed but believe your employer has breached the unlawful discrimination protection provisions of the Fair Work Act, you can still apply to the Commission to deal with the dispute.

What is the definition of sexual harassment?

The Human Rights Commission’s 2018 report Everyone’s Business found that workplace sexual harassment has jumped from 21 per cent in 2012 to 33 per cent in 2018, while other surveys have found as many as one in four Australian women believe they have been sexually harassed at work. It’s a real and ongoing concern that can affect work performance and create a hostile work environment both for those who experience it and those who witness it.

The provisions of the Sex Discrimination Act 1984 make sexual harassment unlawful in the workplace. Section 28A of the Act defines sexual harassment as when a person makes an unwelcome sexual advance, an unwelcome request for sexual favours, or engages in other unwelcome conduct of a sexual nature such as unwelcome touching, hugging, cornering or kissing. If you feel offended, humiliated or intimidated by these actions, it’s likely you have been sexually harassed. Sexual harassment can be subtle and implicit rather than explicit, and verbal as well as physical.

The Australian Human Rights Commission (AHRC) can investigate and resolve complaints, or you may also raise it with state or territory anti-discrimination bodies, or occupational health and safety authorities. The Commission will try to resolve the complaint through conciliation and if it cannot be resolved, you may be able to take your complaint to Court.

Employees should be aware that employers are encouraged to:

  • Provide training for employees on how to identify and respond to sexual harassment;
  • implement an internal complaints-handling procedure;
  • take appropriate remedial action if and when a sexual harassment complaint is made.

Good legal advice can significantly clarify all of these issues if you’ve experienced discrimination or sexual harassment at work. Contact Peters Bosel Lawyers today for guidance on complaints, investigations, dealing with employers and legal representation.

Contact Peters Bosel Lawyers today for guidance on complaints, investigations, dealing with employers and legal representation.

Contact our team today.