Dignity and respect is achieved when all workplace and work – related behaviour is appropriate and lawful. inappropriate and/or unlawful behaviour is unacceptable. individuals (and their employers and/or organisations to which they belong) are accountable for their actions and behaviour at work and in work – related situations, as well as when engaging with persons known to them through work or outside of work.

It is the responsibility of every individual to ensure that they do not directly / indirectly / inadvertently allow, permit, aid, encourage, reward, foster, incite or instruct any form of inappropriate or unlawful behaviour.

Discrimination is treating, or proposing to treat, someone unfavourably because of a personal characteristic protected by the law. The Equal Opportunity Act 2010 – Victoria’s anti-discrimination law – protects people from discrimination and harassment in areas of public life such as workplaces, schools, clubs, shops or places that provide services.

You can be discriminated against directly or indirectly. In Victoria it is against the law for someone to discriminate against you because of a personal characteristic that you have, or someone assumes that you have. In Victoria, the following are the personal attributes and characteristics protected by anti – discrimination laws:

  • race including skin colour, nationality, descent, ethnicity, country of citizenship, ethno – religious or national origin (includes speech with accents);
  • sex;
  • pregnancy (includes potential pregnancy);
  • carer’s responsibilities;
  • family responsibilities;
  • parental responsibilities (includes being childless);
  • breastfeeding;
  • industrial activity or trade union membership (or non membership);
  • religious belief, affiliation, conviction or activity;
  • marital status, domestic status or relationship status;
  • sexual orientation (includes heterosexuality, homosexuality, bisexuality or assumed sexual orientation);
  • gender identity, gender history, transgender or intersex;
  • age (includes compulsory retirement);
  • political belief, opinion, affiliation, conviction or activity;
  • expunged homosexual conviction;
  • irrelevant criminal record;
  • irrelevant medical record;
  • disability and impairment that is current, past or imputed (includes physical / sensory / intellectual disability, work related injury, medical conditions, mental / psychological / learning disabilities and disease);
  • physical features;
  • employment activity; and
  • association with a person who has one or more of the attributes for which discrimination is prohibited.

Harvey and evertop investments Pty ltd and anor [2016] wasat 10 (18 february 2016)

A recent decision of the State Administrative Tribunal of Western Australia (Tribunal) has recently considered the question of whether the employer of three (3) employees had unlawfully discriminated against them on the basis of family status.

In July 2014, three (3) casual employees of the Jim Kidd Sports Stores, namely, Laura Harvey, Emma Bree Harvey and Abbey Rose Harvey, who were the wife and daughters respectively of Mr Neil Harvey, the operations manager of the stores, who was in a dispute with the company, were transferred from stores where they worked to the company’s warehouse.

Each of the three (3) casual employees claimed that the action taken against them was discriminatory and a breach
of the Equal Opportunity Act 1984 (WA) and made complaints to the Equal Opportunity Commissioner who referred the matter to the Tribunal.

Having heard all of the evidence, the Tribunal found that it was not satisfied to the standard required that either Laura Harvey, Emma Bree Harvey or Abbey Rose Harvey had been unlawfully discriminated against and that other employees in similar circumstances but who were not related to Mr Neil Harvey would have been treated in a similar fashion and the three (3) applications were dismissed.

In the decision, the Tribunal found that:

  • James Kidd (the owner of the company that owned and operated the Jim Kidd Sports Stores) considered the applicants represented a commercial risk to the business;
  • The Tribunal was required to determine whether James Kidd treated the three (3) applicants differently by reason of their beingMr Harvey’s wife and children, than he would have treated another person in similar circumstances;
  • When James Kidd wishes to keep an eye on, or observe an employee who he may have lost trust in or regarded them as a commercial risk, he was likely to transfer them to the warehouse (regardless of who they were);
  • In all the circumstances, based on the evidence before it, the Tribunal was not satis ed (to the standard required) that the rst and second respondents unlawfully discriminated against the applicants as claimed, but rather found that the respondents, rightly or wrongly, were likely to have treated a comparator in similar circumstances such as the one the Tribunal has identified earlier in exactly the same way.

The Tribunal dismissed each of the three (3) applications.

Summary: Lessons to be learned

Whilst the decision did not find in favour of the three (3) applicants and dismissed their application, the decision demonstrates the need to ensure that an employer treats an employee (whoever that employee may be) the same way as they would any and all other employees of the company. Should an employer treat an employee di erently, for whatever reason, then the employer may well be determined to have discriminated against the employee on the basis of a protected attribute and / or characteristic. 

Should there be any questions about the contents of this article, Members may contact Phil Eberhard, Senior Workplace Relations Adviser, Master Plumbers, on 03 9321 0720, 0425 790 722 or [email protected]