By Sid Sidhu and Emma Treherne, NRA Legal
You may be surprised to learn that as it stands, the New South Wales anti-discrimination laws do not prohibit employers from discriminating against prospective job seekers who are pregnant during the application process or at the date of the interview.
Similarly, where an employer dismisses an employee, the dismissal will not amount to unlawful discrimination on the basis of sex, if at the time of application or interview the employee knew or ought reasonably to have known that she was pregnant.
This is soon to change, with New South Wales Attorney General, Mark Speakman, announcing that the exemptions will be abolished in the new year, bringing the State’s anti-discrimination laws in line with the rest of the country.
“It’s unacceptable and out of step with modern standards for a woman to be overlooked for a role because she’s pregnant, or dismissed from a new position once it becomes apparent she’s carrying a child” Mr Speakman adds,
“We understand the need for employers to plan and be prepared for staff who need to take maternity leave, but an agile workplace that accommodates family commitments is likely to attract and retain the brightest talent“.
Of course, in the private sector, employees who are unlawfully discriminated against on these grounds are still entitled to bring a claim under Federal laws such as the Sex Discrimination Act 1984 (Cth) and Fair Work Act 2010 (Cth) (‘FWA’). However, these changes are welcomed and will ensure fair access to employment for all.
What are the risks if discrimination occurs in my business?
A recent case, whereby an employee was dismissed for her documented performance issues and tardiness, demonstrates the breadth of the FWA and general protections provisions.
In this case, Mrs Mahajan alleged she was discriminated against on the basis of pregnancy as she was dismissed after taking time off work to attend medical appointments and accommodate her morning sickness.
Her employer, Burgess Rawson, refuted this, but conceded that these performance issues were not raised with the employee during the three-month probation review. Rather, Mrs Mahajan was praised for her work ethic and given the impression that she was performing well.
On the last day of her probationary period, the employee was called in to a meeting and told:
“due to your current circumstances, your employment has become unreliable…”
Her employment was subsequently terminated. The Federal Circuit Court of Australia found that the employer’s recollection of the meeting was unconvincing, incomplete and somewhat rehearsed. As a result, the employer failed to disprove the allegations put forward by Mrs Mahajan and was held liable for adverse action.
This case serves as a strong reminder to ensure that you present sound reasons for dismissing an employee even during their probationary period. The risk of failing to do so is may be an adverse action claim where the dollar limit on damages is uncapped.
What can I do to protect myself and my business?
Anti-discrimination laws are a highly complex area of law with multiple avenues for bringing a claim under Federal, State and Territory jurisdictions.
In today’s climate, it is becoming increasingly more important to address unacceptable behaviours in the workplace including unlawful discriminatory conduct, workplace bullying and sexual harassment.
In addition to this, employers have a legal obligation to ensure the health and safety of their workforce which translates to, at the very least, implementing a Discrimination, Bullying and Harassment Policy as well as providing regular training to staff on what these policies mean.
NRA Legal offers comprehensive and interactive half-day workshops on unlawful discrimination, workplace bullying and sexual harassment.
The training covers an array of topics, with case studies specific to the retail environment, activities and practical tips for handling complaints, difficult conversations and much more.
To find out more about this training and other services NRA Legal provides, call us today on 1800 RETAIL (1800 738 245).