Adverse action threat to employers

Discrimination cases are attracting some pretty hefty headlines at the moment. But these headlines don’t capture a key aspect of these cases that should make employers redouble their efforts to introduce policies and education programs to ensure that discrimination never happens in the first place.

You would have to have been on vacation in another galaxy not to have heard about the claim by a former employee against David Jones and its former chief executive. The size of the claim captured the headlines. Likewise, in a claim by two air traffic controllers, massive compensation is being sought. But one of the more interesting aspects to these claims is increasing prominence of the Fair Work Act anti-discrimination and adverse action provisions. Both of these cases are seeking to take advantage of the provisions, introduced with the new legislation in 2009. They are also set against the background of a Full Federal Court upholding an award of $466,000 in damages under the Sex Discrimination Act.

The significance of the new provisions has, to this point, flown pretty low under the radar. That is about to change in a marked way. They pick up from the freedom of association laws under the old legislation and carry a reverse onus of proof; the person or employer alleged to have engaged in the impugned conduct is obliged to show that they did not do so in order to avoid an adverse finding.

Aside from making claims easier to prove, the weight of government apparatus is also getting behind the new laws. The Fair Work Ombudsman some time ago announced the formation of a new discrimination unit and recently announced the commencement of legal proceedings against an employer in New South Wales for allegedly effectively terminating the employment of a female employee because she was pregnant.

And as the Australian Metals and Mines Association recently pointed out, an adverse action claim can succeed, even if the alleged discrimination or adverse action is but part of the reason for the employer acting the way it did. The requirement under the previous Workplace Relations Act that the unlawful reason was the sole or dominant reason for the employer’s action, before the claim could succeed, has been removed.

The legislation is also having an impact from a procedural point of view, with the Federal Court and the Federal Magistrates’ Court having jurisdiction to hear a range of claims against employers, including adverse action and anti-discrimination claims.

Changes introduced into Parliament before the election was called would also broaden the range of claims that might be made under the Sex Discrimination Act. The Federal Government also announced in April its intent to consolidate Federal anti-discrimination laws into one piece of legislation. It wouldn’t be gilding the lily to suggest that, if re-elected, the proposed changes to sex discrimination laws might be reflected across the spectrum of anti-discrimination laws.

There is, as is often said, no time like the present. Employers who don’t have modern practices to prevent discriminatory conduct will have to drag themselves into the modern age. If they don’t there are a number of government agencies and potential litigants who will do it for them.

Peter Vitale, leading workplace lawyer.