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“Other” protected grounds and termination of employment

12 April 2012

“Other” protected grounds and termination of employment

Kirryn West, Associate

Key learnings from recent discrimination cases

A number of recent cases serve as a timely reminder to employers to improve their awareness of the “other” grounds of discrimination, particularly in a termination of employment context.

While most employers are well aware of the traditional protected grounds of discrimination such as race, sex, age and disability, there is generally a lower level of awareness in relation to what is largely referred to as the “other” grounds of discrimination. These “other” grounds of discrimination include religious and political conviction, criminal records, carer’s responsibilities, physical features and industrial activity.

There have been a string of recent cases where employees have successfully claimed they have been discriminated against on the basis of an “other” protected ground. These cases reinforce the need for employers to be aware of the “other” grounds of discrimination and ensure any termination of employment is not triggered by one of these protected grounds.

Political beliefs: Carey v Cairns Regional Council [2011] QCAT 26

This case was a particularly interesting case because the employee, Mr Carey, did not bring a claim on the basis that he had been discriminated against because of his own political belief, but rather, the political belief of two people with whom he was closely associated.

Mr Carey was employed as the General Manager of the Douglas Shire Council. While Mr Carey was away on leave, a motion was proposed and approved by the Councillors to terminate Mr Carey’s employment. At the time of termination, while Mr Carey was notified of the termination of his employment, he was not provided with any reasons as to why his employment was being terminated.

Mr Carey brought a claim in the Queensland Civil and Administrative Tribunal against the Cairns Regional Council (who the Douglas Shire Council had since merged with) on the basis that the termination of his employment was unlawful and involved direct political belief discrimination under the relevant state anti-discrimination legislation.

Specifically, Mr Carey claimed that his employment was terminated on the basis of his relationships with two prominent individuals in the local political community. These individuals were the Mayor of the Douglas Shire Council (whom the Councillors of the Douglas Shire Council often opposed on political issues), and his de-facto partner Roisin Allen (who was a high profile and vocal supporter of the Mayor and was also in her own right actively involved in local environment causes and groups to which the Councillors were often opposed).

The Council opposed Mr Carey’s arguments and claimed that his employment was terminated for reasons of poor performance.

The Tribunal, in rejecting the Council’s argument that Mr Carey’s employment was terminated for reasons of poor performance, held that there was evidence of direct discrimination on the basis of political belief or activity. What is so interesting about this case is  that the Tribunal held that:

“even if it were shown that Mr Carey himself had absolutely no political beliefs nor engaged in any political activities himself, the fact that he might be perceived to be favourably disposed to or even work for someone who was seen as the political opponent for the discriminatory party would be sufficient to meet the test.”

This case is also significant because of the large sum of damages awarded. Mr Carey was awarded $368,033.06 which included payment for past loss of income, future loss of income, forced early repayment of a loan, hurt, embarrassment, humiliation and loss of reputation, pain and suffering and medical expenses.

Pregnancy/carer’s responsibilities: Cincotta v Sunnyhaven Limited [2012] FMCA 110

This case involved an employee, Ms Cincotta, who had been employed as a direct support worker by Sunnyhaven. Upon becoming aware of Ms Cincotta’s pregnancy, her employer made the decision not to renew her 12 month fixed-term contract and also declined to offer her any permanent position following the completion of her contract (which was the employer’s usual practice). When Ms Cincotta returned to work she was only offered casual employment before she was constructively dismissed.

Ms Cincotta brought a claim in the Federal Magistrates Court for discrimination on the basis of pregnancy and family responsibilities under the Federal anti-discrimination legislation. Ms Cincotta alleged that her employer’s treatment towards her amounted to discrimination on the basis of pregnancy and carer’s responsibilities.

The Court accepted that the treatment of Ms Cincotta throughout her employment did amount to discrimination and, in relation to the termination of her employment, stated that:

“… at least a part of the reason for Ms Cincotta’s dismissal, and certainly the vehicle by which is was achieved, was her childcare responsibilities. This also was influenced by her earlier pregnancy and maternity leave”

The Court found that Ms Cincotta’s employer had discriminated against her and she was awarded $30,000 in compensatory damages and $9,000 in general damages. Interestingly, the Court also ordered the Board of Directors to issue a formal apology after it failed to conduct an investigation following a complaint being made by Ms Cincotta in relation to her treatment.

Criminal record: Mr Steve Leigh aka Wilson v Nestle Australia Limited T/A Uncle Tobys [2010] FWA 4744

Mr Wilson was a casual employee who, while employed by Uncle Tobys, was charged and convicted of various criminal offences including harassment, stalking and possession of child pornography. After being convicted, Mr Wilson alleged that he was not offered any further work from Uncle Tobys and had his security card de-activated.

Mr Wilson contended that he had effectively been dismissed because of his criminal record. While this case was brought before Fair Work Australia as an unfair dismissal claim, these types of scenarios have previously arisen in the discrimination context.

Fair Work Australia found that even though the employee’s criminal convictions were a valid reason for termination, the employee had not been afforded procedural fairness (such as, the opportunity to respond and put forward mitigating factors), and awarded the employee compensation.

Importantly, Fair Work Australia commented that a criminal record does not automatically justify termination of employment and that:

“There is no general presumption that a criminal conviction is a valid reason for termination of employment. It is a matter to be decided on the facts of each case”

This case is a reminder that employers should carefully consider the inherent requirements of a position prior to making the decision to terminate an employee’s employment on the basis of a criminal record.

“Other” protected grounds of discrimination in the different jurisdictions

Australia’s anti-discrimination laws operate to prevent employers discriminating against an employee on the basis of a protected ground of discrimination. While there is uniformity amongst the jurisdictions in relation to the traditional grounds of discrimination, when it comes to the “other” grounds of discrimination, each jurisdiction has its own approach. The table below is an overview of the “other” protected grounds in each state, territory and the Commonwealth.

Top 5 Tips for Employers

  1. Ensure that all employees (particularly employees with decision-making responsibilities such as Senior Management and HR) receive Behaviour + Culture training at least every two years.
  2. Develop clear internal guidelines and practices in relation to termination of employment.
  3. Take discrimination claims on “other” grounds extremely seriously. Awards of damages can be signi cant and Courts have the power to impose a broad range of penalties including apologies.
  4. Ensure that there is always a valid reason for termination that can be demonstrated to a Court or Tribunal. For example, if a termination is performance related, ensure that this can be demonstrated through warnings and performance- related documentation.
  5. Ensure familiarity with the “other” protected grounds of discrimination so that a decision to terminate an employee’s employment is not made on the basis of a protected ground.


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