Employees in Australian workplaces may be subjected to discriminatory practices by their employer. IEU Victoria Tasmania Industrial Officer Jessica Mekhael examines the circumstances and relevant legal framework involved in the prohibition of workplace discrimination and takes us through a couple of relevant cases.
There are various federal, state and territory anti-discrimination laws operating throughout Australia which prohibit discrimination in a person’s employment on the basis of particular characteristics or attributes.
The attributes on which discrimination are prohibited include age, employment activity, gender identity, disability, industrial activity, lawful sexual activity, marital status, parental or carer status, political belief or activity, pregnancy, race, religious belief or activity, sex, sexual orientation and personal association (whether as a relative or otherwise) with a person who is identified by reference to any of the aforementioned attributes.
It is important to note that the attributes protected by anti-discrimination legislation vary in each jurisdiction, and there may be exceptions or exemptions to unlawful discrimination depending on the jurisdiction.
Largely, unlawful discrimination can be either direct or indirect. The general characteristic of direct discrimination is that the discriminatory act is done because of or, on the basis of, the particular attribute.
Indirect discrimination usually occurs when a condition, requirement or practice is imposed, or is proposed, which is likely to disadvantage persons with a particular attribute and it is not reasonable.
Adjustment for disability
Most jurisdictions make it unlawful for an employer to refuse adjustments or accommodations for employees where such adjustments are required to enable the employee to perform their work. Generally, such provisions require that the adjustment or accommodation is reasonable in the circumstances or does not create an unjustifiable hardship to the employer.
Generally, an employee who requires reasonable adjustments to their working conditions cannot assume their employer knows what adjustments are required and why.
The Victorian Civil and Administrative Tribunal in Mulder v Victoria Police  VCAT 428 found that it was not enough that Mulder advised that he would not work under Box Hill Police Station management or that he was open to working elsewhere as that information did not inform his employer or managers that he needed an adjustment because of a disability.
In that case, Mulder brought a claim against Victoria Police, alleging amongst other things, that it had failed to make reasonable adjustments for his disability. One of the issues between the parties was whether Mulder had actually made a request for a reasonable adjustment.
It was found that Victoria Police did not discriminate against Mulder when it refused to move him to another police station after he requested the move, as the employer was not aware that Mulder required this change because of his disability and there was no evidence before the Tribunal showing the employer had that information.
Mulder then took some time off work around the birth of his child, and when he was due to return to work, Victoria Police changed the arrangements at Burwood Police Station so that it became a ‘shop front’, managed by Box Hill Police Station.
The background to the dispute involved an incident when Mulder was working at Burwood Police Station. He, along with a colleague from Box Hill Police Station, had attended a call-out to a family dispute. This call-out resulted in a man being arrested and charged. Later, the charges were withdrawn, and the man made a complaint against the two arresting officers. Mulder considered that the investigation conducted by Victoria Police was unfair and reached wrong conclusions and that it was improper that the investigator was from Box Hill Police Station, when there had been senior officers from that station involved in the arrest.
Mulder considered that his employer treated him differently after the investigation and he suffered a psychological injury and made a WorkCover claim for the medical costs associated with his psychological injury. Mulder also alleged that he became aware of the other arresting officer being bullied and harassed by senior management at Box Hill Police Station, and that this made Mulder afraid that he would be subject to the same treatment.
Victoria Police directed Mulder to return to work under that arrangement. One of the claims made by Mulder in the matter was that the direction that he work under Box Hill Police Station management amounted to discrimination against him by failing to make reasonable adjustments for his disability. In order to succeed in this claim, Mulder had to show that the employer knew, or at the very least should have known, when they directed him to work under the management of Box Hill Police Station that he had a disability which made him unable to safely work under that management.
The evidence in the hearing showed that it was not clear in Mulder’s communications to his employer at the time that the reason he would not be working at Box Hill Station was because of his disability, or on his doctor’s advice or due to a medical reason.
The managers involved were not aware at the relevant time that Mulder had or claimed to have a disability which made him unable to work under Box Hill Police Station management, and therefore it cannot be said that the employer failed to make a reasonable adjustment for that disability.
It is prudent to note that had the evidence shown that if the managers were aware that Mulder could not work at Box Hill Station due to his disability or on the advice of his doctor, the outcome may have been different at the hearing regarding whether the direction to Mulder to return to work at Box Hill Station amounted to a failure to make a reasonable adjustment under the Equal Opportunity Act 2010 (Vic).
Adverse action because of pregnancy
Conversely, in the decision of Fair Work Ombudsman v WKO Pty Ltd  FCA 1129, the Federal Court imposed penalties on a childcare operator and a director for adverse action taken against an employee because of her pregnancy.
The Fair Work Ombudsman brought proceedings against WKO Pty Ltd under the Fair Work Act 2009 (Cth) for, among other things, taking adverse action against its former employee, Ms Nederpel, because she was pregnant. In summary, the employer admitted that, after Ms Nederpel applied for unpaid parental leave, it reduced Ms Nederpel’s hours of work and refused her entitlement to unpaid parental leave for reasons that included the fact that Ms Nederpel was pregnant.
In this case, there were various contraventions of the Fair Work Act 2009 (Cth), including a contravention of the discrimination provision of the Act. Namely, that the employer took adverse action against Ms Nederpel because of her pregnancy. The relevant industrial instrument which applied to the employment along with the terms of Ms Nederpel’s contract of employment specified her hours of work and meant that the employer could not change those hours without Ms Nederpel’s agreement in writing. Approximately three weeks after Ms Nederpel had given notice of her intention to take unpaid parental leave, WKO unilaterally reduced her hours (by taking two days of work away from her and giving those days to another worker), the reduction amounted to 15 hours per week to her hours of work.
The Director of WKO refused Ms Nederpel’s application for unpaid parental leave, advising her that she was not entitled to it and that she had to resign from her employment.
In this case, the employer admitted the contravention and that it took the adverse action of reducing Ms Nederpel’s hours of work and consequently increasing the hours of work of another employee, forcing Ms Nederpel to cease her employment with WKO and therefore constructively dismissing Ms Nederpel because she was pregnant.
Nuances in discrimination legislation
The contrast in these cases highlights that based on the jurisdiction and the circumstances, what is considered as unlawful discrimination will vary.
The case involving WKO demonstrates very obvious and deliberate actions that constitute discrimination; however, in the matter involving Victoria Police, the facts did not warrant a finding of discrimination. It is possible that had the facts shown knowledge on the part of the employer that it was aware that Mulder could not work at a particular police station due to his disability, then the direction may have been discriminatory in those circumstances.
Prospective applicants in discrimination cases may have the benefit of state or territory anti-discrimination legislation, in addition to the federal anti-discrimination laws and the Fair Work Act 2009.
Each jurisdiction has its unique hurdles and advantages, and each case will turn on its particular facts. It is important to keep abreast of changes in your jurisdiction that apply and to seek appropriate advice from your union.