Workplace Discrimination in Tasmania

Discrimination, vilification, victimisation and harassment are unlawful in Tasmanian workplaces. Both Tasmanian legislation and Commonwealth legislation regarding discrimination which affect Tasmanian employees.  Employees who are subjected to this treatment may therefore have a legal claim to several different tribunals and commissions, depending on their individual circumstances. 

Discrimination legislation affecting Tasmanians

The primary legislation in Tasmania regarding discrimination is the  Anti-Discrimination Act 1998, which establishes the Office of the Anti-Discrimination Commissioner and the Anti-Discrimination Tribunal for the purposes of receiving and hearing complaints, respectively.  Tasmanians are also covered by the federal Sex Discrimination Act 1984, the Disability Discrimination Act 1992, the Australian Human Rights Commission Act 1986, the Racial Discrimination Act 1975 and the Age Discrimination Act 2004.

Most Tasmanians will be covered by the discrimination provisions stated at section 351 of the Fair Work  Act 2009 and will therefore be able to bring an application to the Fair Work Commission if they believe they have been discriminated against. Those people who won’t be covered include police officers (and trainee police officers), public sector employees, Ministers, judicial officers and other people appointed under Tasmanian law.

What is discrimination?

Discrimination is the actual (not perceived) less favourable treatment of a person or a group of people based on a particular attribute which is, by law, a prescribed or protected attribute.  These include sex, race, age, religious or political belief, sexuality, parental or carer’s status, disability or impairment, pregnancy, irrelevant criminal record, and intersex.  There are subtle differences between Tasmanian and Commonwealth anti-discrimination legislation, and it is therefore advisable that you seek legal advice before commencing proceedings against an employer and/or a colleague.

For conduct to be considered discriminatory, it is not necessary that the person who conducted themselves was intentionally discriminatory or that the attribute be the sole reason for the discriminatory conduct.  Indirect discrimination may be harder to recognise; it is the imposition of a requirement, rule or condition which has the effect of disadvantaging a person who belongs to a group of people who share the attribute.

In the workplace, discrimination can translate to: segregation or isolation from colleagues, denial of opportunities or promotion or demotion.  Employees should utilise grievance resolution procedures and make a formal complaint regarding the discrimination, if possible.

Bringing a complaint under the Tasmanian Anti-Discrimination Act 1998

Under the Anti-Discrimination Act 1998, the Office of the Anti-Discrimination Commissioner is established and given the power to receive, consider and investigate complaints.  It is also able to provide education and training in equal opportunity matters.

Complaints must be made to the Office within 12 months of the alleged discrimination taking place.  In exceptional circumstances, the Commissioner may be able to accept a complaint out of time, however the Commissioner does have the discretion to dismiss or reject a complaint if he or she considers it to be lacking in substance, vexatious, trivial or misconceived.  The Commissioner may also direct that parties to a complaint attend a compulsory conciliation conference.  If a party fails to comply with this direction, they may be fined up to ten penalty units.

If a matter remains unresolved by Conciliation, the Commissioner may refer it to an inquiry before the Anti-Discrimination Tribunal.  Parties may be ordered to attend a conciliation conference before the matter proceeds to a hearing.  On making a finding of discrimination, the Tribunal may order that the respondent pay a fine of up to 20 penalty units, pay compensation to the complainant, apologise, re-employ the complainant or make any other order it considers appropriate.

For conduct to be considered discriminatory, it is not necessary that the person who conducted themselves was intentionally discriminatory or that the attribute be the sole reason for the discriminatory conduct.  Indirect discrimination may be harder to recognise; it is the imposition of a requirement, rule or condition which has the effect of disadvantaging a person who belongs to a group of people who share the attribute.

In the workplace, discrimination can translate to: segregation or isolation from colleagues, denial of opportunities or promotion or demotion.  Employees should utilise grievance resolution procedures and make a formal complaint regarding the discrimination, if possible.

Discrimination and termination of employment

If your employment has been terminated and you believe that the reason for your termination is discriminatory, you may be eligible to bring an application to the Fair Work Commission under section 365 of the Fair Work Act 2009.  Applications must be commenced within 21 days of the termination of your employment.  These timeframes are very strict and therefore action must be taken swiftly.

If you have not been terminated from your employment but have had adverse action taken against you, you may still bring a complaint to the Fair Work Commission under section 372 of the Fair Work Act 2009.  Applications must be brought within 12 months of the alleged contravention of the legislation.

If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.