Under section 351 of the Fair Work Act (2009) (‘the Act’), this type of discrimination is unlawful or it is one among those discriminations that is not allowed under section 351 (3) of the Act unless conducted in good faith and part of the exceptions under section 351 (2) of the Act.
A young man John was approached by his supervisor Craig and said to this effect, “John you are the youngest among your group, vibrant and fit. You need to work extra faster and finish your work in no time.”
Prior to this unrehearsed remark, this young man did not have a problem with his work and did things the usual way and time with no complaint. But he found these words from his supervisor bewildering this time because the supervisor wants him faster and surely he cannot tell this to everyone when everyone one is doing the right things in the circumstances.
John, although surprised, did not complain the first time, however, in another occasion, Craig again reminded him to work extra faster because he was young and fit when the tempo and time he was working did not change from the time he was hired to the present. John became stressful and agitated and felt bullied or harassed for the third time he was approached and said to the Director, “I will file a complaint of bullying or harassment if this offensive behaviour is not stopped and if not acted will call work safely to report this bullying.”
The Director did not like the information he got and said, “ you are like running to your Mummy for help.” The parties were called to a meeting and discussed the complaint. The supervisor likewise brought other issues of taking a toilet break and not always in his work bay whenever John is seen. The work issues were resolved, but the reporting to work safe stood out and was not determined.
A day after the meeting, the applicant was handed a dismissal letter indicating that he was made redundant due to a significant reduction of business.
The applicant filed the general protection dispute claim under section 365 of the Act within the required timeframe of 21 days from his dismissal.
He argued that the employer violated his workplace rights against discrimination under section 351 and his rights in making the complaint under section 340(1) (iii) in relation to 341 (1) of the Act which becomes the dominant reason of his dismissal and lastly, it completely disregards the consultation process required under clause 9 of the Industry Award which describes the manner by which the employer should inform the employees if workplace change(s) is made particularly in terms of redundancy or reducing the number of workforces.
After a conference conducted under the Act, the parties failed to reach the agreement and FWC decided to issue the certificate under section 368 of the Act allowing the applicant to file the case in court within 14 days or allowed the parties to raise the matter for arbitration.
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