What Is Victimisation In the Workplace: Advice For Employers and Employees

Definition of victimisation

Victimisation refers to the unfair treatment of an individual because they've made or supported a complaint. This treatment can mean being excluded, labelled as a troublemaker, or even getting fired from a job. It's a form of retaliation that punishes someone for speaking out.

Protected act under the Fair Work Act 2009

Under the Fair Work Act, employees are legally entitled to take specific actions in the workplace without fear of adverse action or victimisation. These acts are designed to ensure that employees can exercise their rights and responsibilities without being penalised.

Protected acts include:

• Exercising workplace rights: This includes entitlements under workplace laws, instruments, or orders made by industrial bodies. It covers initiating or participating in processes or proceedings under these laws.
• Making complaints or inquiries: Employees are protected when they make complaints or inquiries about their employment conditions or seek compliance with workplace laws.
• Discussing pay and employment terms: Employees have the right to discuss their pay and employment terms and conditions and ask other employees about theirs without being forced to disclose this information.
• Industrial activities: Employees and contractors are free to engage or not engage in lawful activities of industrial associations, like trade unions, without being victimised for their choices.
• Anti-discrimination: It's unlawful for employers to take adverse action against employees due to protected attributes like race, sex, age, disability, and others.
• Reporting sexual harassment: The Act prohibits sexual harassment connected to work and protects those who report such incidents.

These protections are crucial as they allow employees to assert their rights and address issues without fearing negative consequences from their employer. For more information, read our article: Protected Attributes Under the Fair Work Act.

Understanding protected characteristics

An essential aspect of addressing victimisation in the workplace involves understanding 'protected characteristics.' These characteristics, as defined by law, include aspects of an individual's identity such as age, gender, race, sexual orientation, and disability.

Recognising these characteristics is crucial because victimisation often occurs when an employee is treated unfairly for exercising their rights related to these aspects of their identity. Whether it's standing up against discrimination, reporting sexual harassment, or supporting a colleague in their complaint, the law safeguards individuals from being victimised for actions connected to these protected characteristics. By comprehending what constitutes a protected characteristic, both employees and employers can better identify and address instances of victimisation, contributing to a more inclusive and respectful workplace environment.

The Fair Work Act has recently expanded its protected attributes to include breastfeeding, gender identity and intersex status.

The role of the Sex Discrimination Act in preventing victimisation

In addition to the Fair Work Act 2009, the Sex Discrimination Act 1984 plays a pivotal role in safeguarding employees from victimisation. The Act has been instrumental in establishing a positive duty for employers to actively eliminate discrimination and harassment in the workplace.

Key aspects of the Act include:

• Eliminating discrimination based on sex: The Act mandates employers to take proactive steps to prevent discrimination on the grounds of sex, ensuring a fair and equitable workplace for all genders.
• Addressing sexual harassment: It places a responsibility on employers to create a work environment free from sexual harassment, protecting employees who report such incidents from any form of retaliation.
• Tackling sex-based harassment: The Act extends its protection to include sex-based harassment, ensuring that employees can report such issues without fear of victimisation.
• Eliminating hostile workplace environments: Employers are required to take measures to prevent the creation of a hostile workplace environment on the ground of sex, thereby safeguarding employees from related acts of victimisation.

This emphasis on the positive duty of employers under the Act is a significant step forward in encouraging employees to speak up about workplace issues related to discrimination, sexual harassment, and other gender-based challenges. It reinforces the legal framework that protects employees from victimisation, fostering a more respectful and inclusive workplace culture.

Examples of victimisation in the workplace

Victimisation often arises when someone makes a complaint about being mistreated 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 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: Employees who raise concerns about discrimination or harassment may face unexpected disciplinary actions or exclusion from key meetings despite their complaints being valid and justified.
• Threats for supporting a co-worker: Supporting a colleague's complaint about misconduct can result in intimidation or isolation from management or other team members.
• Retaliation for being a witness: Employees who witness and report discriminatory actions, like race-based discrimination or workplace bullying, may experience subtle forms of retaliation, such as unwarranted warnings.
• 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 be 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 sexual harassment. This severe form of victimisation sends a chilling message to other employees about the potential consequences of speaking out.

These examples illustrate the different ways victimisation can impact the morale and wellbeing of employees, underlining the importance of awareness and proactive measures to prevent such occurrences in the workplace.

The right to make a complaint

Some Commonwealth and state laws 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 helpful guide to understanding 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. Employees can escalate their complaints to an employment tribunal for a formal resolution if victimisation persists.

Beyond addressing individual complaints, employers bear a significant responsibility. They are mandated to foster an environment that responds to and actively prevents discrimination, harassment, and victimisation. This proactive approach is vital to cultivating a respectful and inclusive workplace.

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, it's vital to maintain a detailed record of incidents and related communications. This documentation can serve as evidence should you decide to take further action.

It's also beneficial to seek guidance from HR professionals, legal counsel, or support groups on navigating 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, and the better positioned you'll be to protect your rights and wellbeing.

If your workplace has an anonymous reporting platform or whistleblowing hotline, these tools can help report acts of victimisation without revealing your identity. In most cases, senior management should work promptly to rectify 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. The first step is to foster a positive workplace culture where workers feel comfortable communicating their concerns. 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 sexual harassment, discrimination, bullying, and victimisation, employers can ensure that everyone understands what constitutes inappropriate behaviour and how to avoid it.

When complaints 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 compliance landscape. Understanding the potential legal ramifications and consequences of allowing victimisation to persist is crucial for the company's reputation and financial wellbeing. Proactive measures and a genuine commitment to a respectful workplace can mitigate these risks. Employers should stay informed about the latest from the Fair Work Commission, Respect@Work and work health and safety laws on victimisation.

How anonymous reporting protects employees

An anonymous reporting system, or whistleblowing hotline, can play a significant role in safeguarding employees. These systems provide a layer of safety and confidence by ensuring that individuals can voice their concerns without revealing their identity. 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 fearing backlash.

Whistleblowing laws further bolster this protection. These laws are designed to shield individuals who expose misconduct 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.

Employers are responsible for creating a positive workplace culture where employees trust that the system will not fail them. It is important to foster a culture where individuals feel secure reporting concerns, knowing they won't face retaliation. In such a culture, anonymous reporting doesn't just protect employees; it strengthens the integrity of the entire organisation.