We recently helped a client with a discrimination claim at work, with a confidential settlement being achieved. This is how we got there.
Understanding Bullying and Discrimination
Bullying and discrimination are very different concepts, and they have different legal tests and remedies. Bullying is best described as being a safety issue. Where someone in the workplace is causing harm to someone (whether mental or physical) then bullying might be occurring. However, where a manager is managing an employee’s performance, further tests are required before bullying can be determined. The manager’s actions need to be unreasonable, in addition to proving the risk to the person’s safety.
Discrimination is quite different, because it hinges on protected characteristics (such as sex, gender, family responsibilities, union affiliation, age, disability). Any differential treatment because of someone’s protected characteristics may constitute unlawful discrimination, and even if the relevant behaviour was intended to be fair and reasonable it may still be unlawful. This is because discrimination is designed to stop inherent bias and unfairness that can come from people having outdated or misguided views about someone’s capability based on those characteristics. No one thinks they are discriminating, but often it is unconscious.
Finally, both bullying and discrimination are separate from a person’s workplace rights under the Fair Work Act. Every employee has the right to be treated in accordance with the law, which includes payment of wages, superannuation and other benefits.
What we did to solve the issue?
The recent issue we dealt with involved a very complex set of facts involving someone working for many years in a role. They took on more and more responsibility, but were not given the benefits you would normally expect to receive as a result. The key question to be determined was whether discrimination or bullying were at play, because there was no relevant Award or Industrial Agreement that said they deserved better.
To resolve the issue, we looked at the whole history including previous people filling the same role. Was the employee in the current matter treated in an equivalent way, and given the same opportunities, as someone else? Was the employee given truthful information about the duties and hours that would be required? Were they expected to do more than was discussed when they took on the role?
Bullying could be made out if those things were true, and it caused the employee harm. Discrimination on the other hand only needed proof that they were true and the employee was being treated differently because of their protected characteristics. This is a learning opportunity for businesses to make sure that they don’t make assumptions about a person because of their background or personal situation, as if they do that can lead them into error. If you wrongly assume someone won’t be able to work in any other way, without giving them the chance to discuss it with you, you can get into trouble.
How we solve these matters
We recently resolved a matter related involving these issues by listening, checking the information available, and then being open with both our client and the other people involved about the issues. Litigation had commenced, and it was likely that without intervention it would have continued for many months and cost far more than a reasonable outcome was worth.
Building rapport with our opponents, which is a key part of being a legal professional, helped to build trust around our respective views. It was not necessary for us to agree on everything for both of us to understand the risks of proceeding and the benefits of an early, confidential, settlement. In just a few weeks, it therefore went from being a bitter personal dispute to being a respectful parting of the ways on amicable terms. We are proud of the support we could give to achieve that result.