Racial discrimination Under the Fair Work Act 2009

One of the general protections provided for in the Fair Work Act 2009 is protection from discrimination in the workplace.

Under the Act an employer cannot take adverse action, be it dismissing the employee or otherwise, against an employee or a prospective employee, on the basis of several listed attributes. These are a person’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

Racial discrimination

One of the grounds on which employers cannot take adverse action against an employee or prospective employee is race.

For an employee to prove racial discrimination it is not enough to show that they are of a different race or colour, national or ethnic background, and that they have been treated unfairly in their workplace.

They must show that the unfair treatment was connected to, or occurred because of, their race. For example, in the case of Shackley v Australian Croatian Club Ltd, an employee alleged that she was dismissed from her employment with the club because she was not Croatian. The court found that this was the case, and the club was ordered to pay the employee $12,100 for the loss suffered.

However, in Phillip v New South Wales adverse action on the basis of race was not found. In this case, the potential employee applied for a job to be trained as a police officer. After two telephone interviews the applicant was assessed as having poor Englishcommunication skills. Interviewers also made a file note indicating that he had an accent, was difficult to understand, and had become agitated in the second interview. His application for admission was rejected on the grounds that he failed to meet the minimum English communication standards, and his bad attitude. The applicant argued that he was denied employment in the training course because of his ethnic origin, because his accent was related to his ethnic origin.

The court held that the decision not to employ the applicant was not because of his race or ethnic origin. Instead, it was because of his failure to demonstrate adequate English communication skills, and the aggressiveattitude he displayed during his phone interviews. No discrimination was found and the application was dismissed.

The case shows that for a person to make a general protections claim based on racial discrimination, there must be a significant connection between the person’s race or ethnic origin and the adverse action claimed. The adverse action must be taken because of the employee, or prospective employee’s, race or ethnicity.

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