In the wake of controversial comments made by South Australian liberal opposition leader Isobel Redmond – that women should ignore discrimination and instead focus on their job performance to achieve equality – business leaders have voiced their disgust.
One engineering firm spoke out to media yesterday, and said performing at work was necessary but not sufficient to combat gender discrimination. “Workplaces have to be better at learning how to deal with that. It's not necessarily deliberate discrimination – it can be unconscious, simply because there is a strong representation of men in leadership roles and they're used to working with men in other leadership roles,” David Cruikshanks-Boyd from Parsons Brinckerhoff said.
Yesterday Redmond was standing by her comments, and said her opinion was based on her personal experience. She said she was not discouraging women from pursuing legal action over gender discrimination but said there were other options they could consider.
The controversy comes at a time when employment law experts have highlighted that state-discrepancies in discrimination claims could be putting national employers at risk.
According to one legal practice, the number of claims is on the rise as employers struggle with variance in “protected grounds” when terminating staff. Because the variance between states is significant, compliance with the correct legislation is proving to be a challenge for many employers, especially businesses which operate across state borders.
The following table from People + Culture Strategies highlights discrepancies in state-by-state discrimination Acts:
As an increasing number of recent cases have focused on a variety of “other” lesser-known protected grounds of discrimination, including religious and political conviction, criminal records and carer’s responsibilities, Joydeep Hor from People + Culture Strategies said it is important that employers have sound knowledge and awareness of all protected grounds around discrimination to avoid costly legal action and brand-reputation damage. “We’re finding most employers are aware of the traditional discrimination grounds such as race, sex, age and disability. However, a number of other protected grounds are often overlooked, resulting in legal action being undertaken by the terminated employee,” Hor commented.
A recent case decided by Fair Work Australia in Sydney, where an employee was dismissed due to the employer becoming aware of a significant conviction and criminal record, resulted in discrimination damages being awarded by Fair Work Australia. It is just one example of the need for employers to be aware of all protected grounds before terminating an employee.
Adding to the complexity of due-diligence around discrimination is the speed at which state laws within each jurisdiction are changing, making it particularly important that businesses operating across two or more jurisdictions take a considered approach to any staff termination matters to avoid legal risk. “If an employee has worked across multiple states or works in a different state to the head office of the business, there may be avenues for a discrimination claim to be lodged that an employer was not aware of,” Hor said.
Ultimately, avoiding legal action comes down to adequate and appropriate training for staff responsible for hiring and terminating employees.
Advice for businesses:
Ensure that all employees receive behaviour and culture training every two years, particularly employees with decision-making responsibilities such as senior management and HR.
Develop clear internal guidelines and practices in relation to termination of employment.
Ensure familiarity with all protected grounds of discrimination so that a decision to terminate an employee’s employment is not made on the basis of a protected ground.
Ensure that there is always a valid reason for termination that can be demonstrated to a Court or Tribunal.
Take discrimination claims on “other” grounds seriously. Awards of damages can be significant and courts have the power to impose a broad range of penalties including apologies.