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COVID-19 and Workplace Discrimination and Dismissals – What Are Your Rights?

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If you have experienced different or less favourable treatment in your workplace due to your personal circumstances with COVID-19, you may have been subjected to discrimination and certainly should not be dismissed

COVID-19 and Workplace Discrimination and Dismissals – What Are Your Rights?, Unfair Dismissal Australia

There are certain personal attributes that are protected by discrimination laws, such as race, disability, gender, pregnancy and family responsibilities. COVID-19 is not a ‘protected attribute’ itself, but discrimination due to COVID-19 is protected by other attributes.

What could the less favorable treatment look like?

  • Termination
  • Reduced hours
  • Not being hired
  • Having your job changed to your disadvantage
  • Different treatment to colleagues
  • Not being given legal entitlements, such as leave or flexible work conditions

I’ve been treated unfairly because I had COVID-19 or was forced to isolate.

This is disability discrimination. ‘Disability’ includes any injuries or medical conditions, such as COVID-19.

  • If you are still employed, consider a General Protections (Not Involving Dismissal) claim in the Fair Work Commission.
  • If you have been terminated within the last 21 days, consider a General Protections (Involving Dismissal) claim in the Fair Work Commission.
  • If you have been terminated more than 21 days ago but within the last 12 months, consider a Discrimination Complaint in your State human rights body.

I’ve been treated unfairly because my employer thought I had COVID-19, even though I didn’t.

This is also disability discrimination. ‘Disability’ includes any injuries or suspected medical conditions, such as COVID-19.

  • If you are still employed, consider a General Protections (Not Involving Dismissal) claim in the Fair Work Commission.
  • If you have been terminated within the last 21 days, consider a General Protections (Involving Dismissal) claim in the Fair Work Commission.
  • If you have been terminated more than 21 days ago but within the last 12 months, consider a Discrimination Complaint in your State human rights body.

I’ve been treated unfairly because I was not allowed to work from home, even though I am at high risk from COVID-19.

This is disability discrimination. ‘Disability’ includes any injuries or medical conditions which would make you more susceptible to COVID-19 or place you at greater risk.

  • If you are still employed, consider a General Protections (Not Involving Dismissal) claim in the Fair Work Commission.
  • If you have been terminated within the last 21 days, consider a General Protections (Involving Dismissal) claim in the Fair Work Commission.
  • If you have been terminated more than 21 days ago but within the last 12 months, consider a Discrimination Complaint in your State human rights body.

I’ve been treated unfairly because I was not allowed to work from home, even though I am pregnant and therefore at risk from COVID-19.

 This is pregnancy discrimination. You cannot be treated unfairly due to being pregnant, especially when you have a valid health concern, such as COVID-19.

  • If you are still employed, consider a General Protections (Not Involving Dismissal) claim in the Fair Work Commission.
  • If you have been terminated within the last 21 days, consider a General Protections (Involving Dismissal) claim in the Fair Work Commission.
  • If you have been terminated more than 21 days ago but within the last 12 months, consider a Discrimination Complaint in your State human rights body.

I’ve been treated unfairly because I was not allowed to work from home, even though my family member is at high risk from COVID-19.

This is family or carer’s responsibilities discrimination. If your working conditions would place a family member at risk, this can be considered family responsibilities.

  • If you are still employed, consider a General Protections (Not Involving Dismissal) claim in the Fair Work Commission.
  • If you have been terminated within the last 21 days, consider a General Protections (Involving Dismissal) claim in the Fair Work Commission.
  • If you have been terminated more than 21 days ago but within the last 12 months, consider a Discrimination Complaint in your State human rights body.

I’ve been treated unfairly because I was not allowed to work from home, even though I have family/caring responsibilities due to COVID-19.

This is family or carer’s responsibilities discrimination. If your working conditions would prevent you from fulfilling your responsibilities to your family (for example, as a parent) or as a carer (for example, looking after old or unwell parents), you may be protected.

  • If you are still employed, consider a General Protections (Not Involving Dismissal) claim in the Fair Work Commission.
  • If you have been terminated within the last 21 days, consider a General Protections (Involving Dismissal) claim in the Fair Work Commission.
  • If you have been terminated more than 21 days ago but within the last 12 months, consider a Discrimination Complaint in your State human rights body.

I’ve been treated unfairly because I made a complaint about my workplace’s COVID-19 policies and procedures.

This is not discrimination. However, making a complaint is considered ‘exercising a workplace right’ and is hence covered by General Protections laws. You may also be covered by State victimisation laws, depending on the nature of the complaint and to whom it was made.

  • If you are still employed, consider a General Protections (Not Involving Dismissal) claim in the Fair Work Commission.
  • If you have been unfairly dismissed or unlawfully terminated within the last 21 days, consider a Unfair dismissal claim (F2) General Protections (Involving Dismissal) claim (F8) in the Fair Work Commission.
  • If you have been terminated more than 21 days ago but within the last 12 months, (if outside this still happy to talk to you about the time line) consider a Discrimination and Victimization Complaint in Federal Human Rights Commission or your State Human Rights or Equal Opportunity body.

I have been treated unfairly because I have a genuine mental health condition and have been very anxious and/or stressed due to COVID-19.

This is mental disability discrimination. ‘Disability’ includes all mental illnesses and conditions. Provided that you have a genuine condition, you may be protected by discrimination laws. For example, unfair treatment may be having your sick leave request turned down, or being criticised or treated differently because of your condition.

  •  If you are still employed, consider a General Protections (Not Involving Dismissal) claim in the Fair Work Commission.
  • If you have been terminated within the last 21 days, consider a General Protections (Involving Dismissal) claim in the Fair Work Commission.
  • If you have been terminated more than 21 days ago but within the last 12 months, consider a Discrimination Complaint in your State human rights body.

I’ve been treated unfairly because I expressed my political views on COVID-19.

This is political opinion discrimination. You cannot be treated unfairly for expressing your political views, provided that you do not perform any activities breaking the law. For example, if you were terminated or treated differently for expressing your opinions about the current government’s approach to COVID-19, you would be protected.

  • If you are still employed, consider a General Protections (Not Involving Dismissal) claim in the Fair Work Commission.
  • If you have been terminated within the last 21 days, consider a General Protections (Involving Dismissal) claim in the Fair Work Commission.
  • If you have been terminated more than 21 days ago but within the last 12 months, consider a Discrimination Complaint in your State human rights body.

I’ve been treated unfairly because I refused to wear a mask or comply with COVID-19 restrictions.

This is not discrimination. Discrimination does not protect you from activities that would break the law. You are entitled to express your political opinion, which is protected under discrimination laws, but this does not extend to performing unlawful activities.

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