What is unlawful victimisation in the workplace? Advice for employees and employers

Definition of victimisation

Victimisation refers to the unfair treatment of an individual because they've made or supported a complaint. This treatment can manifest in various ways, from being labelled a troublemaker, excluded from meetings to more severe actions like termination of employment. It's a form of retaliation that seeks to punish someone for speaking out.

The Fair Work Act provide a framework for understanding victimisation, introducing the concept of "protected acts." These protected acts include actions like making a complaint or providing evidence in such cases. Engaging in a protected act offers individuals a shield against victimisation.

Protected characteristics, such as age, gender, sexual orientation and race, are central to the concept of victimisation. No one should face repercussions for challenging workplace bullying, discrimination, or unfair treatment based on these characteristics.

What is a protected characteristic?

Protected characteristics are central to the concept of victimisation because they represent specific attributes or features that the law recognises as grounds upon which individuals should not be discriminated against.

The following attributes are protected characteristics under the Fair Work Act:

• race
• colour
• sex
• age
• sexual orientation
• breastfeeding
• pregnancy
• gender identity
• intersex status
• physical or mental disability
• marital status
• family or carer’s responsibilities
• religion
• political opinion
• national extraction
• social origin.

For instance, if an employee complains about being discriminated against because of their gender and subsequently faces retaliation for making that complaint, they are being victimised. The retaliation is directly linked to their action of standing up against discrimination based on a protected characteristic.

In essence, while victimisation is about the retaliation someone faces for making or supporting a complaint, the nature of the original complaint often revolves around unfair treatment based on protected characteristics. This intertwining of protected characteristics with the act of standing up against discrimination or harassment makes them central to the concept of victimisation.

Examples of workplace victimisation

Victimisation often arises when someone makes a complaint about being treated unfairly due to one of these protected characteristics or supports someone else in making such a complaint. There are instances where a complaint of discrimination or a complaint of victimisation has led to adverse actions, such as being fired. Here are some examples of how victimisation can present itself in the workplace:

Repercussions after complaints

An employee who raises concerns about discrimination or harassment might find themselves suddenly facing unwarranted disciplinary actions or being excluded from important meetings.

Threats for supporting a co-worker

Standing in solidarity with a colleague can sometimes lead to threats or unfair treatment. For instance, if an employee supports a colleague's complaint about inappropriate behaviour, they might be subjected to intimidation or isolation by management or peers.

Retaliation for being a witness

Witnessing discriminatory conduct, such as race discrimination, can lead to adverse reactions. An employee might receive a warning or face other forms of subtle retaliation for being a witness.

Career opportunities denied

One of the more insidious forms of victimisation is the denial of career opportunities. An employee who has made or supported a complaint might find themselves passed over for promotions or given fewer opportunities for professional development, even if they are well-qualified.

Unfair dismissal or demotion

In extreme cases, an employee might be demoted or even dismissed after raising concerns about issues like sexual harassment. This severe form of victimisation sends a chilling message to other employees about the potential consequences of speaking out.

You have the right to make a complaint

There are a number of Commonwealth and state laws that protect employees against discrimination, harassment and victimisation, such as the Sex Discrimination Act 1984, Age Discrimination Act 2004 and Racial Discrimination Act 1975. The Australian Human Rights Commission website has a useful guide to understand the various laws that cover these unlawful acts. State and Commonwealth laws overlap and employers are required to comply with both.

Employees should confidently voice concerns about discrimination or sexual harassment, knowing that retaliation is unlawful. If victimisation persists, employees have the right to escalate their complaints to an employment tribunal for a formal resolution.

Beyond addressing individual complaints, employers bear a significant responsibility. They are mandated to foster an environment that not only responds to but actively prevents discrimination, harassment, and victimisation. This proactive approach is vital in cultivating a respectful and inclusive workplace for all.

Advice for employees

Those who have experienced victimisation should be proactive in seeking support and understanding their rights. Signs can range from subtle shifts like feeling isolated from colleagues to more overt changes such as unexplained increases in workload or alterations in job responsibilities.

If you suspect you're being victimised, maintaining a detailed record of incidents and related communications is vital. This documentation can serve as evidence should you decide to take further action.

It's also beneficial to seek guidance, whether from HR professionals, legal counsel, or support groups, on how to navigate potential claims or actions. Familiarise yourself with the legal timeframes; there are often strict deadlines for making claims related to workplace issues. Lastly, act promptly. The sooner you address the issue, the more options you'll have at your disposal, and the better positioned you'll be to protect your rights and well-being.

If your workplace has an anonymous reporting platform or whistleblowing hotline, these tools can be useful for reporting acts of victimisation without revealing your identity. In most cases, senior management should work promptly in rectifying both the initial complaint and the consequential acts of retribution.

Advice for employers

For employers, creating a workplace free from victimisation is not just a legal obligation but a moral one. Fostering an open working culture where workers feel comfortable communicating their concerns is the first step. This openness can be enhanced by implementing clear policies and procedures that explicitly address and prevent victimisation.

Regular training sessions are essential. By educating staff on discrimination, harassment, and victimisation, employers can ensure that everyone understands what constitutes inappropriate behaviour and how to avoid it.

When complaints do arise, they must be treated with the gravity they deserve. Swift, thorough investigations are crucial, and maintaining accurate records of these investigations can protect both the employee and the company.

Lastly, employers should be acutely aware of the legal landscape. Understanding the potential legal ramifications and consequences of allowing victimisation to persist is not only crucial for the company's reputation but also its financial wellbeing. Proactive measures and a genuine commitment to a respectful workplace can mitigate these risks.

How anonymous reporting protects employees

An anonymous reporting system, or whistleblowing hotline, can play a significant role in safeguarding employees. By ensuring that individuals can voice their concerns without revealing their identity, these systems provide a layer of safety and confidence. Anonymity often leads to more honest reporting; when employees are assured of their privacy, they are more likely to come forward with genuine concerns without the fear of backlash.

Whistleblowing laws further bolster this protection. These laws are designed to shield individuals who expose illegal or unethical practices within an organisation, ensuring they aren't victimised for their actions. Such legal protections underscore the importance of standing up against wrongdoing without facing repercussions.

For employers, the onus is on creating an environment where workers trust that the system will not fail them. Fostering a culture where individuals feel secure in reporting concerns, knowing they won't face retaliation, is paramount. In such a culture, anonymous reporting doesn't just protect employees; it strengthens the integrity of the entire organisation.

How Elker can help

Elker is an anonymous reporting platform that encourages employees to speak up on issues in the workplace. Elker's comprehensive case management and suite of privacy-focused tools protect the identity of the person making a complaint, and ensure a confidential pathway for raising concerns.

Elker provides additional tools, such as employee feedback surveys and pulse surveys to help detect issues early on. Taking proactive measures can minimise harm to the person making a complaint of victimisation, and ultimately, protect your business or organisation from litigation and loss of trust.

Additionally, Elker assists Australian organisations to stay compliant with your positive duty in the Sex Discrimination Act. If you would like to know more, view our article on the 7 standards for positive duty compliance.

Find out how Elker can help your organisation, by viewing all the features of the platform and booking a demonstration.