Calista Cheng Legal Studies HSC Mrs A.

Cagorski 1

HSC Assessment Task 3 – Workplace

There are a number of legal and non-legal measures adopted by the workplace attempting to
achieve justice. This essay will judge the effectiveness of these measures by highlighting the efforts
made in the areas of discrimination and termination of employment. Overall, clear effective efforts
have been made but limitations and barriers are also evident.

Discrimination is a contemporary issue prevalent within the workplace that is being legally
addressed and has varying degrees of achieving justice at work. Legislation such as the Anti-
Discrimination Act 1977 (NSW) which prohibits the discrimination on conditions of race, gender and
marital status to protect individuals from the unfair treatment within society, as stated by law. Fair
Work Ombudsman protects employees from unlawful workplace discrimination. The Sex
Discrimination Act 1984 (Cth) prohibits the discrimination based on gender and pregnancy which
commonly occurs within the workplace as an October 18 2012 ABC news article titled, “Child care
centre fined for discrimination,” it states the penalties of an employer discriminating an employee
after she became pregnant. The Fair Work Ombudsman claims the employee was discriminated and
given unpaid parental leave which the employee is entitled to but was given no access to parental
leave. The Fair Work Ombudsman against WKO Pty Ltd Childcare faced fines as well as compensation
for the employee. The legislations have been found effective within modifying societal attitudes and
behaviour but is argued by the NSW Industrial Relations Commission that these legislations need to
be altered and advanced in order to remain effective within the evolving community.

There are various legal responses to address discrimination and to achieve justice in the workplace.
The Disability Discrimination Act 1992 (Cth), makes it unlawful to discriminate those with disabilities
in all environments including employment. Disability discrimination is the largest category of
discrimination within the workplace which are reported to the Australian Human Rights Commission
making up 37%, representing the highest proportion of complaints. Comparing to the 83% of all
working-age people, only 53% of people with disabilities are employed, ranking Australia 21st out of
29 nations for disability employment rates. In the case, Tropoulos v Journey Lawyers Pty Ltd [2019]
FCA 436, Mr Tropoulos was discriminated against and failed to provide reasonable adjustments for
his disability by his employer, which breaches the Disability Discrimination Act 1992 (Cth). The
employee was not given working entitlements to respect his disability but was rather discriminated
against, sustaining the Court’s and tribunal’s decision that the employer was unreasonable however,
rejected the employee’s claims of disability discrimination. The legislation, the Disability
Discrimination Act 1992 (Cth), display ineffectiveness in achieving justice within the workplace as it
is evident that those with mobility and sensory impairments have more access and justice than those
with a mental disability. Although, legal measures have responded to the issue of discrimination,
limitations and barriers are still evident throughout the evolving community where the legislations
need to consistently update to remain relevant to society.
 Calista Cheng Legal Studies HSC Mrs A.Cagorski 2

There are numerous non-legal responses in relation to addressing the contemporary issue of
discrimination within the workplace. The organisations supporting workplace rights involve the
independent statutory body, Australian Human Rights Commission (AHRC) and the non-
governmental organisation, the National Disability Services (NDS). These organisations play a major
role in discussing the issue of discrimination and providing recommendations and advice to the
government, or those in authority who are able to enforce these suggestions. The Australian Human
Rights Commission hears complaints of workplace discrimination and uses conciliation between
parties for a compromised resolution. National Disability Services allows people with disabilities to
be a part of an inclusive society enabling them to fulfil their full potential in different environments
such as workplace. In the June 10 2020, Max Koslowski, Sydney Morning Herald article titled, “'A
wake-up call and opportunity': Call for a national anti-racism strategy as complaints grow” which
convey the effective role the Australian Human Rights Commission had within the conduction of
surveys and statistics to further offer and provide the prevalence of discrimination within the
workplace and different environments. Their roles are limited as they don’t have the legal authority
to enforce or amend laws however, they can offer suggestions to the government which evidently
displays the ineffectiveness these NGO’s have as not every suggestion is considered or passed.
Although their roles are limited they do have an impact on the community and enable discussions to
raise awareness of the issue.

The non-legal responses to address the issue of discrimination involve trade unions. This non-legal
measure plays a significant role within the workplace by speaking for employees as well as being a
representative during negotiations. The trade unions work to ensure employees are receiving their
entitlements and resolving workplace issues to prevent discrimination. The Fair Work Commission
provides access to reasonable bargaining and advice to benefit employees during unlawful
occurrences. It allows mediation conciliation and arbitration of workplace issues regarding
discrimination. The use of media to spark discussions of the issue of discrimination in workplace
allows the community to provide their insights and perspectives to further raise awareness and offer
help. The legal and non-legal responses for discrimination continue to address and protect
workplace rights but limitations are evident and ineffective as the issue is continuously widespread.
Discrimination is a difficult subject to prove when filing for complaints and continues to be a major
issue within society.

There are a variety of legal efforts to address termination of employment within the workplace.
Termination of employment can ensue numerously by resignation, retirement, dismissal and
retrenchment. The legislation, Fair Work Act 2009 (Cth), is a legal response to the termination of
employment prohibiting unfair dismissal that is ‘harsh, unjust or unreasonable’. The case of Stutsel v
Linfox Australia Pty Ltd [2011] FWA 8444 was the unfair dismissal of Mr Stutsel, who was dismissed
for his Facebook profile about his supervisors, with racially derogatory and sexual which constituted
serious misconduct. The situation was considered if Mr Stutsel’s termination was harsh, unjust and
unreasonable resulting in the court highlighting that the occurrence of the incident, Linfox did not
have a social media policy which displays no valid reason for his termination. The case conveys how
the Fair Work Act 2009 (Cth) offer fair and just responses towards issues of termination within the
workplace. This legislation is presented to be effective to responding to employees and the unfair
termination of employment experienced. Although it is deemed to be effective, it has its
inadequacies such as small businesses not being able to receive redundancy payments due to their
exclusion in the redundancy legislation.
 Calista Cheng Legal Studies HSC Mrs A.Cagorski 3

The legal response for the contemporary issue of termination of employment has been legally
addressed through the legislation, Fair Work Act 2009 (Cth). According to the Australian Bureau of
Statistics (ABS), 3,387 conciliations were conducted with an 80% success rate and applications
lodged were considered and observed. The 2006 The Daily Telegraph article titled, “Sorry it’s
tough”, highlighting the situation where the employer dismissed 29 employees without valid reason
which allowed them to claim unfair dismissal/termination of employment. It reinforces how law
reform hinders on the protection of industrial rights and employees. The legal response to
termination of employment which is the legislation, Fair Work Act 2009 (Cth), has shown
effectiveness in recognising the roles and responsibilities it has to protect employees within the
workplace by also enforcing rights and being a legislative reform. The legislation is a key role in
regulating employment and workplace relation as well as establishing an institutional framework.
The Fair Work Act 2009 (Cth) is an effective resolution in establishing rights and entitlements for the
employee as well as allowing them to have a legal standard for how and when they are dismissed.

In relation to the issue of termination of employment, there are several non-legal measures adopted
to address the issue. Non-governmental organisations such The Australian Council of Trade Unions
(ACTU) and the Salvation Army both lobby on behalf of their members as well as providing training
and opportunities to those struggling to find employment. Regarding the issue of termination of
employment, the September 16 2019 Business Insider Australia, Sharon Masige article titled, “The
Transport workers union is taking Uber to court over an unfair dismissal claim by a former
UberEats Driver”, claiming that the Transport Workers Union (TWU) has taken Uber to court after
an unfair dismissal by an UberEats Driver. The Fair Work Commission rejected UberEats driver, Amita
Gupta’s unfair dismissal claim after she was not identified as an employee. This proves
ineffectiveness as Amita was excluded from redundancy payments as she is classified as a small
business, presenting the fact that it is difficult to claim payments as a small business.

The non-legal measures in which address the contemporary issue of termination of employment,
involve the media to provide insights and perspectives from the community. The Australian Council
of Trade Unions (ACTU) and The Salvation Army convey ineffectiveness as they have no legal
influence or jurisdiction to establish legislation. Although both non-governmental organisations have
no legal influence or authority to amend laws, they both raise awareness and spark discussions
within the community. Employees are entitled to their workers rights and becomes a violation when
workplace disputes arise such as the issue regarding termination of employment. According to the
Fair Work Commission Annual Report, there were 3270 applications lodged for unfair termination of
employments and roughly 70% finalised.

In conclusion, the effectiveness of legal and non-legal responses to the contemporary issues of
Discrimination and Termination of Employment within the workplace has effectively carried out the
role in achieving justice although, limitations and inadequacies are still prominent in current society.
The constant modifying and amendment of laws ensure that both legal and non-legal responses
effectively impact employees with their workplace disputes. However, society will eternally evolve
causing the advancements of legislations and laws to remain relevant for the workplace which is not
guaranteed which is the reason why inadequacies still exist and occur.