Q&A: Workplace discrimination for WA workers

Workplace discrimination occurs when someone treats you badly or differently in the workplace, because of something about you.

It might be something about the way you look or where you come from, or it might be because of a situation you are in or your relationship with another person. We call these things “characteristics”, and it can be against the law for someone to treat you differently for certain characteristics.

In Western Australia, discrimination is only against the law when it happens in certain areas of life, and one of those areas is the workplace.

Someone cannot discriminate against you when you:

• apply for a job;
• do your job; or
• lose your job.

It is against the law for someone to discriminate against you because you have a particular characteristic or because you are in a certain situation.

These characteristics and circumstances include, your:

• race;
• colour;
• sex;
• sexual orientation;
• gender identity / history;
• age (or association to someone’s age);
• physical or mental disability (includes mental health conditions, association to someone with a disability, use of an assistance animal or disability aid, or for having a carer);
• marital status;
• family or carer’s responsibilities (including family violence related matters);
• pregnancy (including potential pregnancy and / or breastfeeding);
• religion (including lack or absence of religious conviction);
• political opinion;
• ethnicity;
• national extraction or immigration status; and
• social origin.

Sometimes you can make a complaint if your employer discriminates against you because of a criminal conviction or spent conviction. However, protections are limited in these areas. You may wish to visit the website of the Australian Human Rights Commission for further information on this type of complaint.

Similarly, sometimes you can make a complaint if your employer discriminates against you for having personal details on the Fines Enforcement Registrar’s website. For more information on this type of complaint, you may wish to visit the website of the Equal Opportunity Commission.

Discrimination can be direct or indirect.

Direct discrimination

Direct discrimination is when a person is treated less favorably than another person in the same or similar circumstances because of the protected characteristics and/or circumstances discussed above. This means you can make a discrimination complaint if you have been treated unfairly for having a protected characteristic/circumstances from the list above.

Examples of direct discrimination:

• When a colleague says racist slurs to you;
• When a person is dismissed for falling pregnant; and
• When a person is dismissed for injuring themselves or for taking time off work following an injury.

Indirect discrimination 

Indirect discrimination is when a rule or practice (which appears to be neutral) has a negative effect on people who happen to have a particular protected characteristic.

Please note indirect discrimination is defined a little differently depending on where you make your discrimination complaint to. You can refer to the EOC claim guide or AHRC claim guide for the differences and consider them if you are making a claim.

Examples of indirect discrimination:

• A staff policy that all employees must work full time that may indirectly discriminate against women who are generally more likely to have family responsibilities that prevent them from working full time.
• An office without wheel-chair access may indirectly discriminate against people with disabilities.

Although a person may feel like they are being treated differently, it’s not unlawful discrimination unless the treatment is linked to a protected characteristic.

Examples of treatment that could feel unfair, but may not be unlawful discrimination:

• being refused a job because you have a mohawk and tattoos
• getting isolated at work because you are a smoker
• being refused a job because you are not conventionally attractive; and
• getting different treatment for refusing to be vaccinated.

In some of these circumstances you may be able to make  a different type of claim, which we discuss in the section below.

Other claims

Some unfair treatment might be in breach of other laws. So even if it’s not unlawful discrimination, you might be able to make a claim:

• Bullying
  • Repeated bad treatment might fit the definition of bullying. For further information see our publication: Q&A: Bullying for WA workers”
• General protections and Protection of employee rights claims
  • If you have been punished, or otherwise treated unfairly because you made a complaint, you might be able to make a general protections claim or a Protection of employee rights claim.
  • If you have been punished or otherwise treated unfairly for exercising a workplace right or taking time off while sick – you might have a general protections claim
  • See our information resources on these type of claims for further information: “Q&A: Protected complaints and actions for WA workers”
  • If you have been dismissed – you might have an unfair dismissal or general protections claim. See our publication: “Q&A: Dismissal for WA employees” and keep in mind that dismissal based claims can be as short as 21 days.

Employer defenses to a discrimination argument

Sometimes it is not unlawful for an employer or a potential employer to discriminate against you, even when it’s because you have a protected characteristic.

The main example of this is the “inherent requirements defence”. If you have an impairment that means you can’t fulfil the main duties of a role, it may be lawful to refuse you employment or to prevent you doing certain duties.

For example, if you have a serious hearing impairment and you are denied a job on a call service, or if you are pregnant and you are prevented from doing duties that would be unsafe.

In many circumstances, an employer or potential employer still has to consider “reasonable accommodations”. If a potential employee had a mild hearing impairment and could still operate a telephone with accessible and cheap technology, it might be considered a reasonable accommodation to put this in place.

If you feel that you are being discriminated against at work, you can take a number of steps to rectify the situation. These steps are suggestions that may or may not be appropriate for your situation. In some circumstances, discrimination is serious enough that it may require a legal claim without any initial steps.

Keeping a diary 

• The first step is keeping a diary and writing about all the times you feel discriminated against so you can easily report it to your employer
• If you do want to report the discrimination at some stage, it will be necessary to report the specific incidents of offensive behavior. Having a record of the time, place, date, person and behavior involved will be very important.

Notify the person who has been discriminating against you

• If you feel comfortable doing so, you could approach the person who is discriminating against you directly.
• Inform the person that the conduct is inappropriate, and that you want it to stop.
• If the person is unaware that their conduct is hurtful or upsetting, this may resolve the problem.

Notify your employer in writing about the discrimination

• If speaking to the perpetrator directly does not fix the situation, you can take your complaint to your employer
• Write a letter to your employer outlining the incidents of discrimination, along with the reasons why you find this conduct offensive or upsetting, and what action you would like the employer to take.

Keep copies of communication

• It is important for you to keep dated copies of all communication about your attempts to resolve the discrimination.
• If the dispute cannot be resolved by discussing it, the correspondence will provide a succinct summary of the events.
• It also demonstrates your attempts to resolve the problem and will assist you if you decide to pursue further action against the person discriminating against you and/or your employer.

A person who has been discriminated against because of a protected characteristic may be able to make:

• A complaint to the Equal Opportunity Commission (EOC) (within 12 months of experiencing discrimination)
• A complaint to the Australian Human Rights Commission (AHRC) (within 24 months of experiencing discrimination)
• A general protections (non-dismissal) claim to the Fair Work Commission (FWC) (national system only) (within 6 years of the discrimination)

If you have been dismissed from your job, see our publication Q&A: Dismissal for WA employees

Discrimination EOC and AHRC Complaint

An employee who has been discriminated against at work can list both the person involved in the discriminatory conduct and the employer as the respondent in a discrimination complaint. A respondent is the legal word for the party you are making the claim against. Please see our publications:

Claim guide: Australian Human Rights Commission for WA employees

Claim guide: Equal Opportunity Commission for WA employees.

General Protections and Protection of employee rights claims 

These claims can be made against the individual who discriminated against you as well as the employer. Please see our publications:

Claim guide: General protections for national system employees

Claim guide: Protection of employee rights for state system employees

A dismissal occurs where an employee’s employment is terminated by the employer. Most people use phrases like getting sacked or fired instead of dismissal.

Sometimes, an employer puts an employee in a position where the employee feels like there is no other choice but to resign. In some situations an employee may be able to argue this is a constructive dismissal. However, this is often a difficult argument to make. for more information on constructive dismissal see our publication Q&A: Dismissal for WA employees.

If you have been dismissed or constructively dismissed because you made a complaint about workplace discrimination, then you may be able to make a dismissal-based claim.

For national system employees:

• General protections (dismissal) claim to the FWC (within 21 days of the dismissal)
• An Unfair Dismissal claim to the FWC (national system only) (within 21 days of the dismissal)

For state system employees:

• Unfair Dismissal claim to the West Australian Industrial Relations Commission (state system only) (within 28 days of the dismissal)
• Unlawful Termination claim the FWC (state system only) (within 21 days of the dismissal)
• Protection of employee rights claim to the Industrial Magistrates Court (IMC) (within 6 years of the dismissal)

For more information on how to make a specific claim see our Claim guides here: https://circlegreen.org.au/resource/claim-guides-for-wa-workers/

General Protections (non-dismissal)

National system employees can make a general protections (non-dismissal) claim if their employer treats them differently because they made a complaint about workplace discrimination. General protections claims can only be made where an employer has taken adverse (negative action) for a prohibited reason (a reason that is against the law). The prohibited reason would be making a workplace complaint, in this case it is about workplace discrimination.

Examples of negative actions include:

• demotion;
• being given fewer shifts;
• a reduction in pay and responsibility; and
• disciplinary action being taken against you.

Protection of employee rights claim

A protection of employee rights claim (PERS) can be made if a state system employee has had damaging action taken against them for making a workplace complaint or enquiry. If you have made a complaint about workplace discrimination this may be a workplace complaint.

Examples of damaging action include:

• demotion;
• being given fewer shifts;
• disciplinary action being taken against you; and
• being refused a promotion.

Conclusion

General protections and Protection of employee rights claims can be legally technical to make.

For more information please see our publications:

Claim guide: General protections (non-dismissal) for national system employees

Claim guide: Protection of employee rights for state system employees

You may wish to seek advice on your legal options at this point. You could contact your union for assistance or you can contact us to make a request for legal advice here:  https://circlegreen.org.au/get-help/

Please note that time limits for general protections (non-dismissal) claims is 6 years.

You may be able to make a workers compensation claim if you have suffered physically or mentally as a result of workplace discrimination. This includes anxiety or stress that stems from workplace discrimination.

Circle Green’s workplace team does not advise on workers compensation. You may want to contact WorkCover WA on 9388 5555 if you are seeking help on workers compensation. Bear in mind there may be limitation periods that apply.

Q&A: State or national for WA employees

Q&A: Bullying for WA workers

Q&A: Sexual harassment against WA workers

Q&A: Dismissal for WA employees

Q&A: Meetings and other internal processes for WA employees

Claim guide: General protections for national system employees

Claim Guide: Australian Human Rights Commission for WA employees

Claim Guide: Equal Opportunity Commission for WA employees

Claim Guide: Protection of employee rights for state system employees

Australian Human Rights Commission

Equal Opportunity Commission

Fair Work Commission

Western Australian Industrial Relations Commission

WorkCover

WorkSafe