30/08/2010

It is timely to provide some comments on what conduct may be deemed to be discrimination or harassment in the workplace, given the recent action brought by a former employee of David Jones against the company, its CEO and others.

Conduct in the workplace by employers and employees is governed by a raft of legislation at both the Commonwealth and State level.  It includes the Anti-Discrimination Act 1977 (NSW), Occupational Health and Safety Act 2000 (NSW), Disability Discrimination Act 1992 (Cth) and Sex Discrimination Act 1984 (Cth).

In some cases, it may be that the cause of action is against one of the employer’s other employees for alleged discrimination or harassment of a fellow employee.  In that type of case it is open to the employee who is the subject of the behaviour to also claim against their employer because the employer may be vicariously liable for actions of its employee.

Discrimination in the workplace is generally defined as a person or group of people being treated less favourably than others because of some factor.  The types of discrimination dealt with in the Anti-Discrimination Act 1977 (NSW) includes:

• Racial discrimination;
• Sexual harassment;
• Sex discrimination;
• Transgender discrimination;
• Marital or domestic status;
• Disability;
• Responsibilities as a carer;
• Homosexuality;
• HIV/AIDS;
• Age; and
• Victimisation.

For example, discrimination in the workplace for racial discrimination is defined in s.8 of the Act to be unlawful to discriminate on race when:

1. offering employment;
2. the terms and conditions of employment;
3. denying the employee opportunities for promotion, transfer or training or other benefits; or
4. dismissing the employee or subjecting the employee to any other detriment.

Harassment in the workplace is generally defined as a person is made to feel intimidated, insulted or humiliated because of any one or more of race, sex, disability, sexual preference or other characteristic.

Harassing behaviour can include actions such as:

• insulting jokes;
• explicit or suggestive emails, telephone messages or conversations;
• offensive emails, telephone messages or conversations;
• derogatory comments; or
• intrusive questions about a person’s personal life.

It is therefore vitally important that all employers and managers ensure their workplace is free of all conduct that may be considered discriminatory or harassing, and if they become aware of an incident it is also important that the matter be dealt with immediately and all reasonable steps are taken to avoid its occurrence.

It is also interesting to note that because only relatively small monetary awards have been made against employers in the discrimination context the lawyers in the David Jones case have sought to claim for breaches of broader commercial laws such as misleading and deceptive conduct and failure of the employer to comply with their common law duty to their employees.  If the case is successful employers can expect that future claims may also be made in these commercial contexts with much greater potential damages awards.

If you have any questions in regard to this article, please contact TOWNSENDS BUSINESS & CORPORATE LAWYERS on (02) 8296 6222.