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Employers at risk from state differences in protected grounds of discrimination

Cross-state employers who aren’t aware of protected grounds of discrimination across the various states and territories risk facing legal action from terminated employees, as well as brand and reputation damage.

According to People & Culture Strategies managing principal Joydeep Hor, employers that operate across a number of states must ensure they’re aware of protected grounds of discrimination – which range depending on each state and territory.

“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.

This variance in protected grounds for discrimination by jurisdiction across states is proving to be a challenge for many employers, with a number of recent cases focusing on lesser-known protected grounds of discrimination, including religious and political conviction, criminal records and carer responsibilities.

“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,” Joydeep added.

The speed at which state laws within each jurisdiction change makes it more important for businesses to take a considered approach to any staff termination matters, in order to avoid legal risks.

Hor said education around discrimination is important for all businesses across all states.

“A recent case decided by Fair Work Australia, 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 a perfect example of the need for employers to be aware of all protected grounds and seek legal advice before terminating an employee,” he said.

With this in mind, here are five strategies to foster awareness of protected grounds around discrimination:

1. Ensure all employees receive behaviour and culture training every two years, particularly employees with decision-making responsibilities such as senior management and HR.

2. Develop clear internal guidelines and practices in relation to termination of employment.

3. 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.

4. Ensure there’s always a valid reason for termination can be demonstrated to a Court or Tribunal.

5. 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.

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Michelle Sammut

Michelle Sammut

Michelle Sammut is an intern at Dynamic Business. She is completing a Communication and Media degree at The University of Notre Dame majoring in Journalism and English Literature. She likes news and community radio, writing and quiet time.

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