We usually discuss adverse action cases whereby an employer has wronged, or been accused of wronging, an employee. But a recent case lodged by the Australian Building and Construction Commission demonstrates how prospective employees are also protected by the same laws and the penalties for offending employers can be pretty steep!
To state the obvious, discrimination within the workplace is unlawful – the Fair Work Act is where this law is enshrined. But what is included and what constitutes an adverse action in relation to discrimination?.
Let’s look at adverse actions first. An employer can be deemed to have taken an adverse action if they DO, THREATEN or ORGANISE any of the following if it is taken for a discriminatory reason:
Discrimination occurs when an employer takes adverse action against an employee or prospective employee (candidate) because the person has an attribute that is protected under the Fair Work Act. The protected attributes covered by the law include:
EXCEPTIONS TO THE RULE
Like anything, there are exceptions and adverse action isn’t always discrimination. There can be lawful reasons that have nothing to do with someone's personal characteristics. To be clear, it's not discrimination if the actions:
This means that not only your management of employees, but your recruitment processes of potential employees must align with discrimination legislation. For example, a recruiter should never ask a candidate about their age, marital status, family / carer responsibilities, sexual preference, religion and so on UNLESS it’s a bona-fide requirement of the role. For example, to work for a female victims of domestic violence helpline, it may be a requirement to be female; or to work for a Muslim organisation teaching the Muslim faith, you may be required to actually be of Muslim religion. These are bona-fide and allowable discriminations. (Saying ‘not successful to a non-Muslim for example). However, asking if someone has kids and you decide not to hire them because you have a belief that ‘mothers take too much time off work to attend to their kids’ is not allowed and is discrimination.
Important note - you don’t have to be the one to perform the action, but you may be responsible for directing or allowing someone else to do so and the outcome is the same – you will likely be hit with a discrimination claim and you will have to face the repercussions.
Which takes us to the Federal Case lodged by the Australian Building and Construction Commission. They allege that labour hire company Corestaff WA and its client Gumala Enterprises discriminated against a job candidate due to age. There is very strong evidence to support the ABCC claim as shown in a press release which included an email exchange that took place –
Gumala Enterprises HR Adviser: “I have some feedback on the grader ops … we had his details already, he applied directly with us. He has all the tickets we are looking for however he [sic] age is a concern – 70 years old. The other guy is a no.”
Corestaff WA Area Manager: “Wow didn’t know that however I would have found out eventually.. [sic] yes will certainly keep looking.”
According to the ABCC press release, the Corestaff WA area manager later told the candidate “Sorry…, no joy with the role at Gumala due to your age mate”. Oops - not good.
As outlined earlier, age discrimination is a clear contravention of the Fair Work Act and both companies are face possible penalties of $63,000 each. Not only that, those involved could face individual fines of up to $12,600 per contravention. That’s an expensive lesson to learn!
The important takeaway is that you can cannot discriminate – even if the individual concerned is not yet under your employ. And you will be liable for prosecution even if a third party (such as a recruitment company or labour hire group) deliver the message. These laws are in place to protect employees and to deliver opportunities to those who may have the applicable skill set but may struggle to be considered for any of the reasons listed. Knowing these laws will ensure you protect your business. We strongly recommend reviewing and training anyone in your business responsible for any part of the recruitment process, to ensure they do not ask the wrong questions of a candidate or a referee or use any protected attribute to assist in decision making to avoid potential discrimination or adverse action claims!
If you need assistance with a difficult situation, lawful recruitment practices or need advice on other HR matter, please contact the team at HR Staff n’ Stuff – we are always here to help.
The HR Staff n' Stuff team all contribute to our blogs. Enjoy the read!