Anti-discrimination & unfair dismissal
Anti-Discrimination
 Protection from discrimination and harassment
- Protection from harassment and sexual harassment
Protection from vilification
What to do if you have been discriminated against or experienced vilification
- Get advice
- Consider talking to the person who is discriminating against you
- Make a complaint to the NSW Anti-Discrimination Board
- Make a complaint to the Human Rights and Equal Opportunity Commission
Exceptions to anti-discrimination laws
Unfair dismissal
What to do if you believe you have been dismissed unfairly
Anti-discrimination
Protection from discrimination and harassment
The Anti-Discrimination Act 1977 (NSW) makes it unlawful to discriminate against gay men and lesbians on the basis of their homosexuality or disability (including HIV/AIDS) , in the areas of employment, public education, accommodation, the provision of goods and services, or by a registered club . Gay men and lesbians are also covered by the Act if they are discriminated against on the basis of disability (including HIV/AIDS), race, age, marital or domestic status, sex (including pregnancy), transgender status or carer’s responsibilities.
Discrimination is when someone treats you less favourably because of your sexuality or because you are HIV positive. For example, some employers might offer benefits (such as free health insurance or the right to accompany an employee on work-related travel) to the partners of their employees. If these benefits are available to employees who are married or who are in a de facto relationship with someone of the opposite sex but they are not available to employees who are in a same sex relationship, then this may be considered discrimination on the basis of the employee’s homosexuality . Similarly, homosexual discrimination may arise when benefits such as a ‘family rate’ are provided to those in opposite sex relationships but are not provided to those in same sex relationships.
Protection from harassment and sexual harassment
The Anti-Discrimination Act also makes it unlawful to harass someone on the basis of homosexuality, disability, race etc. in the areas of employment, public education, accommodation, the provision of goods and services, or in a registered club. Harassment is generally regarded as behaviour which is not wanted and intimidates, humiliates or offends someone. For example, a manager calling a gay employee a ‘faggot’ may constitute harassment. Similarly, deliberately leaving someone out of meetings, isolating them or belittling them because they are lesbian or gay could also constitute harassment.
Protection from vilification
The Anti-Discrimination Act also makes it unlawful to commit vilification. Vilification is any public act that is likely to incite or encourage hatred, serious contempt, or severe ridicule towards a group of people because of their homosexuality, race, transgender or HIV/AIDS status. In general, an act will be 'public' if it is possible for someone other than those directly involved in the act to have seen, heard or read it.
What to do if you have been discriminated against or experienced vilification
Get Advice
If you are unsure if you have experienced discrimination, harassment or vilification, you could contact a community legal centre or an enquiry officer at the Anti-Discrimination Board. These services are free and confidential. They can provide you with information and help you to work out what to do next.
Consider talking to the person who is discriminating against you or harassing you
If you have experienced discrimination or harassment, you may be able to address the problem by talking to the person who is treating you unfairly if this feels appropriate and safe. Let the person know that what they are doing is against the law.
You may be able to ask someone to help you do this. For example if the discrimination or harassment is happening in your workplace, you could ask your union or a co-worker to support you. Or you could go to your boss or someone with more authority than the person discriminating against you. If the discrimination or harassment is happening in a service, you could ask to speak to the manager first and then approach the person with the manager’s support.
Make a complaint to the NSW Anti-Discrimination Board
If you think you have been discriminated against, harassed or have experienced vilification, you can lodge a complaint in writing with the NSW Anti-Discrimination Board (ADB). Generally, you must lodge your complaint with the ADB within 12 months of the act of discrimination, harassment or vilification.
The complaint will be investigated and, where appropriate, the parties will be asked to try and conciliate (settle) the matter. If a matter can be conciliated, the outcome will depend upon what both parties are willing to offer and accept. If you are entering a conciliation process, the kinds of things you can ask for are a change in the discriminatory behaviour, financial compensation, the introduction of appropriate workplace training and/or policies and procedures, and/or an apology.
The ADB tries to conciliate complaints. It has no power to make findings or orders. If the complaint cannot be conciliated, and in some other circumstances, the complaint may be referred to a hearing in the Equal Opportunity Division of the Administrative Decisions Tribunal (ADT). If the complaint is referred to the ADT, the Tribunal has the power to decide the case and make orders that are binding on the parties.
Make a complaint to the Human Rights and Equal Opportunity Commission
Complaints of discrimination or harassment under federal anti-discrimination laws, for example on the grounds of race, sex, age or disability, can be made to the Human Rights and Equal Opportunity Commission (HREOC) and must be lodged within 12 months of the act of discrimination.
Make a claim for unfair dismissal if relevant
If your employment has been terminated and you believe it was because of your homosexuality (or race, HIV or transgender status, etc) you may also have a claim for unfair dismissal (subject to new federal industrial relations laws). See the section on unfair dismissal for more information. Please note that if you have been dismissed for a discriminatory reason, you can still make a complaint to the Anti-Discrimination Board if you are unable to lodge an unfair dismissal complaint.
Exceptions to anti-discrimination laws
Certain employers, for example private educational authorities and small businesses of 5 or less employees, may in some instances be permitted in law to discriminate against employees on the basis of their homosexuality. There are also some general exemptions in the law that make it possible for voluntary and/or religious bodies to discriminate in certain circumstances. This doesn’t mean that these groups will automatically discriminate against you but if they do, it may be lawful. Please telephone the ADB for advice in these circumstances.
Unfair dismissal
If your employment has been terminated in circumstances that you consider harsh, unjust or unreasonable, or if you have been threatened with dismissal, you may have a claim for unfair dismissal under state or federal unfair dismissal laws . You may also be able to claim if you were forced to resign, or a redundancy was not genuine.
If you believe that you were sacked because of your homosexuality, disability (which includes HIV status), transgender status, race, age or sex, you may have a claim under both unlawful termination laws and anti-discrimination laws.
What to do if you believe you have been dismissed unfairly
Unfair dismissal laws are complex and have recently changed so it is important to get advice from your union, Law Access, a community legal centre or a private solicitor.
You will need to find out whether or not your employer is covered by the Workchoices law. If your employer is covered by the Workchoices law, unfair dismissal claims are lodged with the Australian Industrial Relations Commission (AIRC). If your employer is not covered by the Workchoices law, unfair dismissal claims are lodged with the NSW Industrial Relations Commission (IRC). Claim forms can be obtained from the AIRC and IRC registries and from their websites.
Once a claim has been lodged, the emphasis is on getting the employer and employee to settle the claim in a conciliation hearing. If you have made a claim, you can seek reinstatement or monetary compensation from your employer, as well as a reference if you require one. If the matter can’t be settled, your case will be referred to a formal hearing before the Commission.
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About this website
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While every effort has been made to ensure that the information on this website and in the Understanding Your Legal Rights booklet is as up to date and accurate as possible, it is not a substitute for legal advice. The law is complex and may change. Readers are advised to seek specific legal advice in relation to their particular situation.
Further information.
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