All Things Newz
Law \ Legal

What to do if you are dismissed on the basis of your sex status, sexual orientation or gender identity – Employee Rights/ Labour Relations



To print this article, all you need is to be registered or login on Mondaq.com.

If your employment has been terminated on the basis of your sex
status, sexual orientation or gender identity you can either make
an application to the Australian Human Rights Commission
(“AHRC”) or the Fair Work Commission (“FWC”).
1 The purpose of the application is to show that your
employer has breached anti-discrimination laws. You can only make
an application to one of these bodies to avoid what is called
“double-dipping”. If you first apply to the FWC, and
either withdraw your complaint or it is terminated, you can then
apply to the AHRC however you cannot apply to AHRC and subsequently
to the FWC.

Even if you resigned, you can still make a claim for unfair
dismissal if your resignation was due to bullying and harassment on
the basis of your sex status, sexual orientation or gender
identity. Bullying and harassment can take many forms but can
include:

  1. Being misgendered on purpose;

  2. Being outed in the workplace without your permission;
    and/or,

  3. Being denied opportunities on the basis of your sex status,
    sexual orientation or gender identity.

You can make an application to the AHRC either by posting a
hardcopy of your application to the Commission, emailing it to them
or applying online via their website. 2 Your application
will need to outline your employment history with your employer,
the type of discrimination, when the discrimination occurred,
details of the discrimination and details of your termination of
employment. You can attach supporting documentation to your
application to help the likelihood of success in your claim.
3 There is no fee associated with lodging an application
with the Commission. You must lodge your application within
twenty-four (24) months of the discrimination occurring; that is
after the alleged acts, omissions or practices took place.
4

You can lodge an application to the FWC, similarly, either by
post, email or fax. 5 Your application will need similar
information as required by the AHRC. Lodging an application with
the FWC will incur a fee of $74.90, however the amount required can
change annually. You must lodge your application with the FWC
within 21 days of the date of your termination ,
this is the last day you are employed and is not necessarily the
last day you were at work. For example, it might be later than the
last day you were physically at work if you were on paid leave when
you were dismissed.

Once you have submitted your application and it has been
reviewed, you will likely need to participate in a settlement
conference. Many discrimination claims settle at this part of the
process. This means that you and your employer reach an agreed
outcome without having to engage in the court process which can
often be expensive and time consuming. If you are unable to settle,
then the matter will proceed to either a Court or Tribunal.

The primary remedy for unfair dismissal claims is monetary
compensation (damages). If you end up having to file court
proceedings, you may seek an order from the court for your employer
to either engage in or stop engaging in certain behaviours. You can
also seek an apology or retraction. These latter two remedies
though are rare.

Footnotes

1
https://humanrights.gov.au/complaints/make-complaint

https://www.fwc.gov.au/form/apply-unfair-dismissal-form-f2

2
https://humanrights.gov.au/complaints/make-complaint

3 Examples of documents that can support your
claim, include but are not limited to:- letters, separation
certificates and or doctors certificates.

4 This timeframe only applies to
discrimination claims made under the Sex Discrimination Act, for
all other Federal Discrimination Legislation, an application must
be lodged within six (6) months
.

5
https://www.fwc.gov.au/form/apply-unfair-dismissal-form-f2

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.



Source link

Related posts

Deadline For Transparency In Coverage Compliance Fast Approaching – Employee Benefits & Compensation

Horace Hayward

Lit Alerts—June 2022 – Trade Secrets

Horace Hayward

Ninth Circuit Provides Clarity On The Scope Of Receiverships – Copyright

Horace Hayward