Merit and discrimination in the workplace

Having been passed over for promotion time and time again, a long-standing employee of the Australian Taxation Office thought that he was being deliberately over-looked for illegitimate reasons. The aggrieved public servant filed an adverse action claim, alleging racial discrimination. His evidence? He had applied for a position and simultaneously submitted a ‘dummy application’ with identical credentials but a different name. The dummy applicant was short-listed; the real employee was not.

Not only was this claim unsuccessful, but the employee ultimately had his employment terminated. His affidavit outlining the use of the “dummy application”, which he had hoped would be damning proof of discrimination, instead became evidence that he had breached the APS Code of Conduct.

Unsurprisingly, submitting false job applications and making false declarations to your employer are not effective ways to secure a promotion. However, it is not hard to sympathise with someone who felt they were being discriminated against in the workplace and adopted a creative approach to prove it.

In Australia, protections against discrimination are broadly drafted. Generally speaking, it is illegal to discriminate against an employee on the basis of 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.

If you suspect that you are being discriminated against in the workplace, there are several steps you can take short of making false job applications. Firstly, look to departmental policies for guidance on the relevant internal procedures. If the issue cannot be resolved internally, Australia has several varieties of anti-discrimination legislation which are intended to prevent discrimination (racial and otherwise) in the workplace.

If you believe your employer has breached federal discrimination law, you can lodge a complaint with the Australian Human Rights Commission. The Commission then seeks to resolve complaints through conciliation. If, and only if, the Commission is unable to conciliate the dispute, proceedings can be commenced in the Federal Court or Federal Circuit Court. Alternatively, each state and territory has its own anti-discrimination legislation and most possess similar conciliation mechanisms. In the Australian Capital Territory, the Discrimination Act 1991 (ACT) applies – although the application of state and territory discrimination legislation to federal government employees is a complex question.

While these legislative schemes seemingly provide expansive protections, complainants who rely on them often face an arduous task. If the dispute cannot be conciliated and legal proceedings are commenced, the complainant must prove to the court on the balance of probabilities that they were the subject of unlawful discrimination. Demonstrating a causal nexus between the alleged discriminatory action (such as not offering a promotion) and the protected attribute (for example race) can be challenging. Complainants also face the prospect of an adverse legal costs order if unsuccessful, and the government rarely engages inexpensive lawyers.

On the other hand, employment-related complaints of discrimination are somewhat easier to establish through the general protections provisions of the Fair Work Act 2009 (Cth). After the complainant establishes that adverse action has been taken against them, the Fair Work Act operates to presume that the allegations are true – it places the onus on the employer to demonstrate that they had an innocent (non-discriminatory) reason for taking the action in question.

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