Readers who have been following the previous articles in this series will by now realise that there are a raft of laws in Australia that protect employees and their entitlements. One of the areas that Australian laws protect and which some employers tend to underestimate relates to terminating an employee on discriminatory grounds or prejudicing an employee in some way.
Consider the following scenarios:
(a) An employee asks her employer to vary her hours so that she can pick up and drop off her children from school. The employer refuses to agree to this request and instead stops rostering the employee for overtime shifts which she used to regularly work. The employee resigns because of this.
(b) An employer implements a policy in the workplace whereby all employees who have been working continuously for at least five years will receive a bonus.
(c) Two employees are eligible for promotion. The employer decides not to consider one of these employees because he was previously involved in strike action. Each of these situations could give rise to discrimination claims under various State and Commonwealth laws for the following reasons:
• It is unlawful to prejudice employees who request flexible working arrangements based on family/carer's commitments as is employee's resignation as a result of the employer's conduct can also be considered to be a forced dismissal.
• In (b) above, the employer's policy indirectly discriminates against certain groups of people who may not be able to work continuously (e.g. women – because they may have to leave
work to have children; or employees who may have illnesses or injuries which prevent them from working continuously).
• There are State and Federal laws which prohibit employers from prejudicing employees as a result of industrial activity or union membership as in (c) above. The range of protections concerning discrimination is very broad. Discrimination laws exist not only in respect of the area of employment, but in various other areas including the provision of goods and services, sport and accommodation. There are a number of common sense measures that can be taken by employers to prevent discrimination claims from arising. These include training their staff about discriminatory conduct, having policies in place in the workplace dealing with discrimination, enforcing those policies consistently and regularly monitoring the workplace to address any discriminatory action as and when it arises.
Where an employee discriminates against another employee in the workplace, this can give rise to claims against that employee personally in addition to claims against the employer. Discrimination claims can arise even before the employment relationship comes into effect (i.e. at the interview stage) and are not subject to limitations such as qualifying periods before an employee may bring these claims.
Any South African who proposes to commence business in Australia or who is running a business in Australia would be wise to familiarise themselves with the range of job protections and entitlements that currently exist and to seek professional advice about these matters.
By Costa Brehas (B. Proc – University of the Witwatersrand, South Africa). Costa practised as an attorney and conveyancer in South Africa and is currently engaged as a Senior Associate in the Employment and Workplace Relations department of Hunt & Hunt which has a national presence throughout Australia.
Disclaimer: The information contained in this article is not legal advice and should not be relied upon as legal advice.