Discrimination and unfair dismissal

Introduction

Public policy supports the idea of a workplace free of discrimination based on race, gender, marital status, age, disabilities, religious beliefs, sexual preference, cultural and ethnic background. There also exists minimum statutory legislation protecting employees from being unfairly dismissed (fired) from their employment. 'Unfair dismissal' refers to minimum legal protection for workers against 'unfair, unjust or unreasonable' termination of employment.

See Image 1 - Anti-discrimination laws operate in Australia's workplaces

Anti-discrimination legislation

We have legislation and workplace policies and procedures for preventing and dealing with discrimination in our workplaces. We need these measures to protect our basic right to a discrimination-free workplace. People can be very cruel to one another at work so all forms of harassment are unacceptable. Even 'jokes' such as name-calling or 'having a bit of fun' can be considered discrimination, bullying or harassment by the victim. Fortunately, anti-discrimination legislation, workplace procedures and even Occupational Health and Safety guidelines have begun to stop workplace discrimination from occurring.

Employers can show leadership in their workplace by protecting the rights of individuals and training workers in 'teamwork'. Employees can encourage each other to respect the working rights of others, 'stand up' to workplace bullies or protect their own rights by reporting workplace discrimination and harassment. Most of the time, 'light' instances of harassment or bullying can be stopped by victims themselves, by simply informing the perpetrator (bully) that their actions are not welcome.

See Image 2 - Employers are required to hire employees based on equal employment opportunity

Anti-discrimination legislation exists to stop the most serious forms of workplace harassment based on such things as race, gender, cultural background, disabilities and sexual preference, for example, those identified as gay or lesbian. These laws are designed in theory to allow all individuals an equal opportunity to compete for jobs, and to receive equal and fair treatment when in employment. Prior to the enactment of the Anti-Discrimination Act 1977 (NSW), for instance, groups such as women, migrants and indigenous (Aboriginals and Torres Strait Islanders) people were often unfairly kept out of jobs or discriminated against in the workplace. The Racial Discrimination Act 1975 (Cth) is an important piece of national legislation preventing the discrimination or harassment of people based on their race and ethnic or cultural background.

How can a workplace be made 'discrimination-free'?

We refer to groups commonly discriminated against as 'EEO groups' (a group requiring 'equal employment opportunity). Many EEO groups in our society, such as women and migrants, have their working rights protected in law. There are a much higher proportion of women in the Australian workforce, in part due to the legal protection from discrimination and sexist treatment. The Affirmative Action (Equal Employment Opportunity for Women) Act 1986 (Cth) aimed to ensure that more women were given a full and equal right to be hired by employers and then protected from harassment and discrimination in employment.

Although discrimination in the workplace still occurs, there is now widespread support for anti-discrimination measures in Australia. To this end, many workplaces have internal policies and procedures for preventing all forms of discrimination. These policies are designed to ensure that the employer is not able to be held liable for the conduct of employees.

What is 'unfair dismissal' and when does it apply?

In the course of our working lives, we are generally protected form unfair or discriminatory termination of employment (unfair dismissal). Most of the time, employers and employees work cooperatively in fulfilling the terms and conditions of their employment agreements and contracts. In normal conditions, participants in workplaces engage in 'ethical' conduct and behaviour. Also in ordinary circumstances, employees are protected from termination of employment judged as 'unfair, unjust or unreasonable' by the Workplace Relations Act 1996 (Cth).

The Workplace Relations Amendment (Work Choices) Act 2005 (Cth) introduced changes to unfair dismissal laws in the Workplace Relations Act 1996 (Cth). Basically, small businesses of fewer than one hundred employees are exempt from unfair dismissal. This means that small business employers may in theory terminate an employment contract on the basis of 'genuine operational' grounds (legitimate reasons like a downturn in business or an employee misusing company resources). In application, this sometimes means that six months of employment must pass before an employee can commence an action for having their employment ended unfairly.

See Image 3 - Small businesses of fewer than 100 employees are now exempt from unfair dismissal laws

State legislation and unfair dismissal

Not all employees are covered for unfair dismissal under federal legislation. In NSW, the NSW Industrial Relations Act 1996 (the Act) deals with employment relations for workers not covered by federal legislation. In particular, the Act details procedures for claiming unfair dismissal in the NSW Industrial Relations Commission.

According to the Act, a termination of employment is an unfair dismissal when it is 'harsh, unreasonable or unjust'. The NSW Industrial Relations Commission will assess whether the employer gave a reason for the dismissal, allowed the employee an opportunity to state reasons why they should be re-employed and if the employer issued a warning of unsatisfactory performance. The Commission will assess other issues and evidence as required in particular unfair dismissal claims.

The Act specifies who is eligible to claim an unfair dismissal in NSW. Unfair dismissal provisions allow three general categories of employees to lodge an unfair dismissal application: employees covered by a NSW award or enterprise agreement; NSW Public Sector employees; and employees not covered by an award but who earn less than $98 200 per year (amount indexed 1 July each year). Casual employees in either category may lodge a claim depending on individual circumstances and the length of time they have been employed.

There are certain individuals who may not lodge an application for unfair dismissal in NSW. These include employees covered by a federal award or unfair dismissal laws; those engaged under a fixed contract of less than six months; those engaged under a contract for a specific task; employees under a three month probationary employment and employees engaged in a casual capacity for a short period. Apprentices and trainees can't claim unfair dismissal under the Act but can use other legislative options.

An individual engaged under an individual contract in NSW may claim an unfair contract in circumstances outlined in the Act. The NSW Industrial Relations Commission may assess a contract to be unfair at the time of negotiation or agreement, or that it became unfair at a later time due to conduct by either party or in relation to a variation to terms and conditions. In the situation where an unfair contract is proved, the NSW IRC can amend or vary the contract for fairness, or award damages to the affected party. The Workplace Relations Amendment (Work Choices) Act 2005 (Cth) has removed the use of unfair contract provisions for NSW employees of constitutional corporations employed after March 27, 2006. Constitutional corporations are generally corporations engaged in trading as a substantial business activity.