Possible Causes of Action under the Anti-Discrimination Act 1991

This article discusses the possible causes of action under the Anti-Discrimination Act 1991 and the process to make a complaint. It explores a hypothetical ILAC question and provides relevant rules and applications. The article also includes a short response to a question related to the Human Rights Act 2019 (Qld).

Running head: BUSINESS LAW
Business Law
Name of the Student
Name of the University
Author Note

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HYPOTHETICAL ILAC QUESTION
Issue
Whether Meghan has any possible causes of action under the Anti-Discrimination Act
1991 against CBLAI. What process she should follow, if she decides to make a complaint.
Rule
Fair Work Ombudsman v WKO Pty Ltd [2012] FCA 1129 - an employer liable for the
adverse treatment it has extended towards the employee after being aware of her pregnancy.
Application
Discrimination is said to have occurred if a less favourable treatment is extended to a
person having a specific attribute, which others do not possess. Such a treatment is said to be
effected, when a policy, which is unreasonable or a condition has been imposed to the whole
of the employees, but the same is affecting a particular employee or a particular class of
employees in a way detrimental to them. A discrimination can be direct or it can be indirect.
Any discrimination that has been carried out in a workplace will be treated to be
discriminatory. There are certain attributes based on which the discrimination of a person by
another is treated to be illegal. These grounds include sex, race, age, sexuality, pregnancy and
related issues, relationship status, impairment, religion, political perspective and relation with
trade union.
The Anti-Discrimination Act 1991 protects the employees from the discrimination they
might face in the workplace. Section 6 of the Act ensures the equality with respect to
opportunity towards every person and extends protection to the persons from being
discriminated unlawfully in the work place. This section prohibits the discrimination of a
person with respect to the grounds provided under this Act. This section also empowers a
person to make complaints against such incidents of discrimination and also mentions the
agencies and the procedures under which the complaint is to be carried out.
Section 7 of this Act provides for sixteen grounds under a discrimination can be take place
and be rendered to be unlawful. These grounds are namely age, sex, status of relationship,
parental status, pregnancy, breastfeeding, race, religion, political perspective, sexuality,
impairment, activity relating to trade union, identity with respect to gender, responsibility
regarding family, relation or association with a particular person.
Section 8 of the Act has included both the direct forms or the indirect forms of
discrimination with respect to any attribute that a person possesses or is probable to possess
within the purview of discrimination provided under the this Act. Section 9 of the Act
restricts any kind of discrimination whether direct or indirect. For the purpose of this Act,
direct discrimination implies any less favourable treatment with respect to an attribute.
Whereas indirect discrimination implies a condition imposed which makes a person with a
specific characteristics feel more affected than the others.
Section 15 of the Act prohibits any discrimination extended towards any employee within
the work precincts with respect to differing work conditions, refusing access towards
opportunity in relation to transfer, promotion, benefits or training. It also restricts any
dismissal effected on the basis of discriminatory grounds. In addition, an employer is also
prohibited from treating any of his employee in a manner, which is not favourable in
connection to his employment.

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In the case of Fair Work Ombudsman v WKO Pty Ltd [2012] FCA 1129, the court has
contended held an employer liable for the adverse treatment it has extended towards the
employee after being aware of her pregnancy.
In case an employee has been made to face discrimination in the work place, that person
needs to discuss the matter with the person from whom the discrimination has been initiated.
In case the employee is not comfortable to communicate the same to him, that person needs
to discuss the same with the higher authorities or the trade union. After having the issues
discussed with the employer, the unsatisfied employee may approach the Anti-Discrimination
Commission Queensland or Australian Human Rights Commission and lodge a complaint,
who will arrange for a conciliation. In case the conciliation has failed to extend remedy, the
person can avail a formal hearing before the Queensland Industrial Relations Commission
(QIRC) or the Queensland Civil and Administrative Tribunal (QCAT).
In the present situation, Meghan was employed in CBLAI for a period of two years and
she has been working in the industry for around ten years. She applied for a promotion in the
role of Senior Broker around ten months before. In the interview for the same, she has been
asked several questions relating to her further plans in continuing with CBLAI. In response to
the several questions, Meghan disclosed that she was pregnant. The HR Manager initially
commented her being pregnant to be irrelevant to the promotion for which she has been
applying for and asked her for the details of her qualifications. However, she overheard a
senior executives Charles laughing at the situation and commenting on the same. This made
Meghan more upset when she was informed that she did not get the promotion and a person
with similar qualification has got the job. However, the employer has contended that the job
has been given to that person owing to his better performance in the interview than Meghan.
This can be treated to be a discrimination under section 15 of the Act as Meghan has been
denied access to promotion for the purpose of her being pregnant.
Again, soon after this incident, Meghan took a leave relating to maternity. On her return
after the leave, Meghan has been placed in an inferior position in the job. Although the
remuneration for the job has not been changed, but the new role has been very upsetting for
her. On the 8th of March, Meghan has made a complaint regarding the same to Kate. In
response to the same, Kate contended that Williams and Charles has done the same for the
purpose ensuring the best interest of the company and the motherhood of Meghan. But later
on, when Meghan asked for a part-time role, she has been denied the same. This shows the
discriminatory motive of the employer towards Meghan owing to her pregnancy and is a
violation of the Anti-Discrimination Act 1991. This can be supported with the principle
established in the case of Fair Work Ombudsman v WKO Pty Ltd [2012] FCA 1129.
Owing to this Meghan has the option of discussing her concern with the employer and if
she does not get a satisfactory remedy, she can approach the Anti-Discrimination
Commission Queensland or Australian Human Rights Commission and lodge a complaint,
who will arrange for a conciliation. In case the conciliation has failed to extend remedy,
Meghan can avail a formal hearing before the Queensland Industrial Relations Commission
(QIRC) or the Queensland Civil and Administrative Tribunal (QCAT).
Conclusion
On the balance of probabilities, the Queensland Civil and Administrative Tribunal (QCAT)
would find that Meghan has possible causes of action under the Anti-Discrimination Act
1991 against CBLAI. She should follow the abovementioned process for lodging complaints.

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SHORT RESPONSE QUESTION
Question 1
a)
The Human Rights Act 2019 (Qld) has been passed by the Queensland Parliament on the
date of 27th February 2019.
b)
No, it is not possible to make a complaint under the Human Rights Act 2019 (Qld) as it
can be made from 1st January 2020.
Question 2
a)
Section 11 of the Human Rights Act 2019 (Qld) states that individuals have human rights.
b)
No, a company does not have human rights.
Question 3
a)
Sections 7 of the Human Rights Act 2019 (Qld) define the term “human rights”.
b)
Section 58 of the Human Rights Act 2019 (Qld) makes it unlawful for a public entity to
act or make a decision in a way that is not compatible with human rights.
Question 4
a)
The two causes of action argued by the applicant were sexual harassment causing non-
financial injury and unlawful discrimination.
b)
The Department of Education and Training and the school groundsman were held liable
for the unlawful acts.
Question 5
a)
The two “reasonable steps” that could be taken by an employer to avoid vicarious liability
are firstly, the employer needs to prove that he has provided adequate training to the
employees with respect to discrimination law and secondly the employer has implemented
the compliance with that training by imposing relevant policies.
b)
Yes, the principle for awarding compensation from the Federal Court case of Richardson v
Oracle Corporation Australia Pty Ltd [2014] was followed in Green’s case.