A Basic Guide To The Australian Employment Law Life Cycle

Discrimination in Hiring and Firing

Discuss the process from hiring to firing a basic guide to the Australian employment law life cycle?

Discrimination is said to have taken place in a company when the employer takes contrary action against an existing or a potential employee because of any protected characteristic. The protected characteristics shall be on basis of caste, religion, sex, language, color, political belief or activity (Australian Government). For all the companies they require workforce which gives them good production and performance. There are various legal issues which need to be considered while hiring an employee. These are the factors that are to be considered while giving employment to any person. The contrary action taken by the employer regarded as discrimination shall include firing an employee from the job or treating an existing/prospective employee on different aspects that are not justified legally or not hiring someone or changing the job description and offering terms and conditions which are not acceptable. The categories to whom discrimination is said to happen are employees who have applied for the job, employees not started with their job and the existing employees.

The criteria for selection shall be same for all the applicants. In the case study, Ian has made discrimination among employees having a different language accent and practicing a different religion. This is against the Fair Work Act, 2009. The terms and conditions of the Fair Work Act needs to be followed when hiring any person as an employee. No employer is allowed to not hire a person due to his practicing of religious activities. Ash is a Sikh and as per his religion he is required to not cut his hair. This is a valid reason and shall not hamper the work he does in the company. Ian decision to shunt Ash from hiring as a driver shall not be valid. The Fair Work Act prohibits direct or indirect discrimination against employees. Under this The Racial Discrimination Act 1975 (Cth) there is prohibition to discriminate between employees on the basis of a person’s race, color, descent or national or ethnic origin in a range of areas. Ash can move against Ian to discriminate between him and other prospective employees on the basis of imposing him to cut his hair to work in the company. This is against his religion and so it is illegal to discriminate between people having beliefs on different religious practices.

It was also illustrated in the case study of Hurst v State of Queensland [2006] FCAFC 100; Tiahna Hurst who is deaf since birth. Her first language is Australian Sign Language. She came to a school where she was introduced with a combined language of spoken word and signed English. This was very different from the initial language learnt by Tiahna. Considering the same Tiahna’s parents felt that if Tiahna was given knowledge by using Australian Sign language then she would have been better educated.

The matter was looked into by the Full Federal court where the Federal Court held that the Queensland government has discriminated against Tiahna in an indirect way. The discrimination was made against Tiahna that when she was disabled with her hearing aid she should have been educated with an auslan teacher or interpreter. The court held that it was not justified to make Tiahna participate in such classes which were not supported by auslan teacher or interpreter. This situation made Tiahna in situation which is against her whereas she would have reached at a much better level if she had a support of auslan teacher or interpreter (Library Council of NSW, 2010).

Legal Considerations for Hiring Employees

The Australian Human Rights Commission Act 1986 also states prohibition on the discrimination on the basis of nationality. Ian has discriminated between individuals belonging to Antigua and having a Caribbean accent. Hillary and Mr. Bystander are also against the thought process of Ian and can move the human rights Act to not to discriminate among employees having different nationality, language or religion.

Ash, Mr. Bystander and Hillary have the right to apply to Australian Human Rights Commission or the Federal Magistrates’ Court. There are also independent bodies under the Fair Work Act where the courts shall look into the matters based on discrimination (Ball A, Catanzariti R. Brockman A. Procter M., Ruskin N. and Walsh P., 2013)

The above case can be illustrated with a general example where Dimitri is an experienced barista worker having strong references. He applies for a job in local coffee shop and when asked for his age he tells he is 57 years old. He is rejected from the job on the basis that the need of the café is for a young staff and they have hired a 17 years old young boy less qualified than him for the position. This is a case of discrimination (Australian Government).

Ash, Mr. Bystander and Hillary has the option of going to the Commission but before that Hillary and Mr. Bystander can talk to Ian about his discriminated thought process against Ash and other prospective employees having Caribbean accent. If Ian does not agree to remove the clause of discrimination then next step of going to the Commission can be taken. In the case study, Ash, Mr. Bystander and Hillary shall apply to the Fair Work Commission stating that Ash is shunned from the job on the basis of religious discrimination. They can tell about actions to be taken by Ian by discriminating between individuals having Caribbean accent. This is not justified reason where a person practicing a different religion or language than Ian can be sacked when they do not complete the parameters of requirements of the job. The reason given by Ian is unreasonable and harsh. Ash, Mr. Bystander and Hillary shall have 21 days to lodge an application with the commission from the day they have been sacked. The Australian High Commission also provides with necessary assistance to resolve the dispute outside the court. (Australian Government).

Another example of resolving discrimination disputes between the parties would be by mutual conciliation is of Julie who is a Seventh Day Adventist. She practices a religion where she is not allowed to conduct work-related activities on Saturdays. She comes across the fact that in order to complete her registration as a medical practitioner she was required to undertake a clinical examination on a Saturday. On examination, she was told that the date of exam shall not be changed by the registration body. To this the registration body stated that it did not have its own clinical facilities and hence was dependent on the facilities given by the teaching hospitals in capital cities. The registration body also claimed that the clinical facilities in hospitals in the city where Julie lives were not available on weekdays.

The complaint was resolved through conciliation with Julie agreeing to undertake the examination on a weekday in a clinical hospital in another city (Australian Human Rights Commission).

The Process for Firing an Employee

Australia also gives the provision for filing individual complaints under the Anti-discrimination law of Australia. Under this any person who is connected with apparent discrimination can apply for inquiry. This is also applicable if they are not directly affected by it. Hillary and Bystander can exercise this option even when they neither have long hair nor a Caribbean accent. This is just to have equality of work in the organization (Library Council of NSW, 2010).

In the case of Brown v Bourke Bowling Club [2012] NSWADT 248 (Administrative Decisions Tribunal of New South Wales, Conley J, J Newman, P Smith, 29 November 2012). A complaint was filed by the applicant of discrimination by the Bourke Bowling Club (the Club) on the ground of her Aboriginality. The applicant was associated with the Club as a member for good 16 years. The applicant filed a complaint with the Tribunal stating that she has been victimized and faced discrimination. The Tribunal gave a settlement decision on 30 March 2007. The applicant said that the Club did discrimination on the basis of race with her. She was discriminated on the grounds of race where the Board of Directors of the Club imposed a two year suspension of her Club membership. She made claims of an incident occurred on 4 March 2009 where she was having a conversation on phone to one of her family member and was swearing audibly. One of the staff members told the applicant to stop swearing. To justify the same, the applicant stated that there is no one other than her companion who could hear her conversation and she stated that this is a mere example where the club staff members treated the blackfellas in a different manner. The applicant also stated many other incident where the staff members told her that she is too drunk and then an argument in car parking area.

Looking into the matter the Board of the Club suspended her the next day irrespective of closing with the pending disciplinary proceedings. The applicant wrote to the Board stating the circumstances she faced and pleaded for her defence. But the Board suspended her for two years. She explained in detail about the differential treatment in incidents involving drunken and abusive behaviour (including swearing) by non-Aboriginal and Aboriginal people. Differences in treatment and penalties were set out.

The relevant legislation was the Anti-Discrimination Act 1977 (NSW) (the Act). Section 7 of the Act provides:

(1) A person discriminates against another person (the aggrieved person) on the ground of race if, on the ground of the aggrieved person’s race, or the race of a relative or associate of the aggrieved person, the perpetrator:

(a) the perpetrator treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of a different race.

In relation to clubs, section 20A (2) of the Act provides:

It is unlawful for a registered club to discriminate against a person who is a member of the registered club on the ground of race:

(a) by denying the person access, or limiting the person’s access, to any benefit provided by the registered club,

(b) by depriving the person of membership or varying the terms of the person’s membership, or

(c) by subjecting the person to any other detriment…

Since the acts complained of were by an employee of the Club, sections 52 and 53 on inducement and vicarious liability for the acts of employees were also relevant.

The Tribunal found that the applicant was an Aboriginal person. There needs to be shown causation for making discrimination on the basis of race. Section 7 of the Act applies on it. The Tribunal said that the applicant was penalized with huge penalty for a matter of less importance. Therefore, it is said that the applicant has faced differential treatment even though there is no direct evidence of direct discrimination. There was a clear causal link between the applicant’s complaints to the Club employee that she was receiving differential treatment because of her Aboriginality and the manner in which the disciplinary complaints against her were dealt with by the Club. Therefore, it was proved that the Board made differential treatment with the Board on the basis of race. The Tribunal demanded for taking back the suspension of applicant’s membership and also awarded an amount of $8000 for injury to feelings, distress, insult and mental suffering pursuant to section 108(2)(a) of the Act and received a writing apology from the Club (Australian Centre for Philanthropy and Non profit studies, 2013).

The anti-discrimination law also gives the right to exercise an option of an ‘affirmative action’ program, in which either party can file a complaint rather than waiting for someone to take an action.

There is also introduction of new Equal Opportunity Act 2010 (Vic), where it is duty of the employees covered under this Act to take rational and comparable measures to eliminate discrimination, sexual harassment and victimization (Library Council of NSW, 2010).

Ash, Hillary and Bystander can move Ian to the court and avail justice. The Australian law is strictly against discrimination and any person who violates it shall be liable for punishment (Library Council of NSW, 2010).

References:

Ball A, Catanzariti R. Brockman A. Procter M., Ruskin N. and Walsh P, 2013, Australia: From Hiring to firing: a basic guide to the Australian employment law life cycle, Available From <https://www.mondaq.com/australia/ >[13 April, 2015].

Australian Government, Fair work ombudsman, Protections at work, Page reference No: 2289, Available From <https://www.fairwork.gov.au/employee-entitlements/protections-at-work>[13 April, 2015].

Library Council of NSW, 2010, Discrimination, Available From: <www.legalanswers.sl.nsw.gov.au/hot_topics/pdf/discrimination_75.pdf>[13 April, 2015].

Australian Human Rights Commission, Case studies – conciliated complaints of discrimination in employment, Available From :  <https://www.humanrights.gov.au/case-studies-conciliated-complaints-discrimination-employment>[14 April, 2015].

Australian Centre for Philanthropy and Non profit studies, 2013, Discrimination cases, Available From <https://wiki.qut.edu.au/display/CPNS/Brown+v+Bourke+Bowling+Club>[14 April 2015].