Discrimination and unlawful dismissal - Equal Time, Autumn 2006
The Federal Government’s Workchoices legislation commenced on 27 March 2006.
One of its effects – probably the most publicised one – is the restriction on employees accessing federal unfair dismissal provisions. Employers who employ fewer than 100 employees (including part-time and certain casual employees) are exempt from federal unfair dismissal laws. Workchoices also limits the ability of employees and unions to contest redundancy decisions made by employers.
Some lawyers and commentators have predicted there will be an increase in alternative claims to unfair dismissal, including those brought under various federal and State anti-discrimination and OH&S legislation. Unlike some other State industrial and employment laws these have not been specifically excluded under Workchoices.
Employers should be aware that it remains unlawful in NSW to dismiss an employee on the basis of the following personal characteristics:
- race
- age
- sex
- pregnancy
- homosexuality
- carers’ responsibilities
- transgender status
- marital status
- disability
In addition, an employer cannot dismiss an employee because they have made a complaint about unfair treatment on any of the grounds listed above, or about sexual harassment.
All employers in NSW are bound to observe discrimination legislation provisions regarding race discrimination and sexual harassment. There are some exemptions for businesses that employ five or fewer employees with regards to the other grounds.
Employers who breach NSW anti-discrimination law run the risk of being involved in a contested discrimination case, which may involve significant costs in terms of time and money, and if the case is not resolved successfully, court proceedings.
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