A workplace should be free from harassment, discrimination and bullying, and everyone should be treated with dignity and respect. When there is an issue in the workplace, we expect our employer to listen to our concerns and address them.
Unfortunately, not all employers treat employees fairly and address concerns about harassment, discrimination and bullying. This can not only be very frustrating, but it can also have an impact on your career, and take a major toll on your mental health.
In order to deal with an unfair situation at work, you need to know what your options are.
Often the best place to start if you are being treated unfairly at work is through your employer’s complaint resolution process. Depending on your employer, this can either be an informal or formal process.
The first step is to let your immediate supervisor or manager know what is happening, and give them an opportunity to address the behaviour and talk to those involved. Often this informal approach can lead to a resolution of any issues, just by your manager talking to others involved.
That option may not be available if your manager is the person treating you unfairly. In that instance, the next step is to contact your Human Resources department about your concerns. If you can, put your concerns in writing and clearly and concisely set out your allegations. That way your concerns are on the record and your employer has a chance to address them appropriately. A formal investigation may take place into the alleged conduct, and you may be required to participate in a formal meeting or interview. The outcome may be satisfactory to you and the issues resolved. If not, you may need to take further action.
Reporting your employer to an industry regulatory body
If the unfair treatment you have been subjected to involves a breach of law or ethics in your industry, you can report the conduct of your employer to your relevant industry regulatory body. Often this can lead to an investigation and your employer may receive some kind of sanction for their bad behaviour.
Some more well-known regulatory bodies include The Australian Prudential Regulatory Authority (regulator of the Australian financial services industry), the Australian Communications and Media Authority (regulator of Australian communications and media services), the Australian Health Practitioner Regulation Agency (regulator of Australia’s registered health practitioners) and the Australian Energy Regulator (regulator of Australian electricity networks and gas pipelines, except Western Australia).
Reporting your employer to the Workplace Health and Safety Regulator
If you have been treated unfairly at work and it is affecting your mental health, you are likely being subjected to an unsafe workplace. If you believe your workplace is unsafe, you can report your concerns to the workplace health and safety regulator.
For most industries in NSW, the relevant regulator is SafeWork NSW. SafeWork investigates workplace incidents and enforces workplace health and safety laws in NSW. To make a report to SafeWork, you can call on 13 10 50, report online, visit your local Service NSW centre or make a complaint via post.
If you work on a mine or petroleum site, the relevant regulator is the NSW Resources Regulator. Similar to SafeWork, it oversees workplace health and safety on open-cut and underground coal mines, petroleum sites, quarries, opal and on other small scale mines and mining exploration activities. To make a complaint about an unsafe workplace in these industries, you can call on 1300 814 609, make a complaint online or email email@example.com.
Both SafeWork and the NSW Resources Regulator have powers to investigate and inspect workplaces, enforce relevant workplace health and safety legislation, prosecute employers for breaches of the law, and require compliance through issuing improvement notices to employers.
If the unfair treatment you have been subjected to has had a detrimental effect on your mental health, you may be able to lodge a workers compensation claim. In order to do so, you must have sustained an ‘injury.’ If you have been diagnosed with a psychiatric condition such as Anxiety Disorder, Major Depressive Disorder or Post-Traumatic Stress Disorder, these can constitute injuries under workers compensation legislation.
The first step in lodging a claim is talking to your doctor about your situation, and obtaining a SIRA NSW Certificate of Capacity. You should then lodge this with your employer. Your employer is required to notify their workers compensation insurer within 48 hours. The insurer should then contact you within 7 days of receiving the certificate to begin the claim process.
Often the insurer will appoint an independent investigator to carry out an investigation into the alleged unfair conduct. If your claim is accepted, you can receive weekly payments of compensation if you need time off work, and medical treatment such as counselling and medication. If you meet a certain injury threshold, you may also be entitled to lump sum compensation, or be able to sue your employer in negligence.
There are a number of options you may be able to pursue in the Fair Work Commission. This depends on your individual circumstances.
If you are being bullied at work, you can apply for an Order to Stop Bullying. If you are successful, the Fair Work Commission may make any orders that it considers appropriate to prevent you from being bullied. These can include requiring the perpetrator to stop their bullying behaviour, providing additional support and training to employees and requiring an employer to review its workplace bullying policies. The Fair Work Commission cannot however award financial compensation or impose financial penalties.
If your employment has been unfairly terminated, you may be able to bring an unfair dismissal claim. Your dismissal may be considered unfair if your dismissal was harsh, unjust or unreasonable, was not a genuine redundancy and, if you were employed by a small business, your dismissal was not consistent with the Small Business Fair Dismissal Code.
If the unfair treatment falls in a class protected by anti-discrimination laws, you may have a discrimination case. Such treatment includes if you are being discriminated against at work based on your age, sex, gender, sexual orientation, race, religion or on the basis of a disability.
Also protected under discrimination laws is sexual harassment. Sexual harassment is unlawful under the Sex Discrimination Act 1984. Sexual harassment includes when a person makes an unwelcome sexual advance, an unwelcome request for sexual favours or engages in otherwise unwelcome conduct of a sexual nature which a reasonable person would have anticipated would cause offence, humiliation or intimidation to the victim.
You can lodge a claim by making a complaint to the Australian Human Rights Commission in writing. You can do so online, by post or by fax and remedies can include an apology, reinstatement if you have been terminated from your job, and compensation.
Should I go to the media?
It is generally not recommended you go to the media about unfair treatment at work if you are looking to pursue legal options. However, it can be effective in limited circumstances. It is also not a good idea to post about what is going on at work on social media, as this may get back to your employer and adverse action may be taken against you.
Get legal advice
If you are being treated unfairly at work, the best thing to do is seek legal advice to understand which option is best for you. It is imperative you seek advice as soon as possible, as most legal pathways have strict time limits.
At Turner Freeman we have lawyers who are experienced in workers compensation and employment law, who are able to assist you with your case. Call us on 13 43 63 for a free case assessment.