It is against the law for employers to treat their employees or contractors unfavourably because they make reasonable requests or communicate concerns about their employment entitlements verbally or in writing. This is known as discrimination on the basis of employment activity.
Employment entitlements relate to an employee's rights and entitlements under their contract, agreement, relevant award or law, such as rates of pay and annual leave.
What is unfavourable treatment?
If an employee makes a reasonable request about employment entitlements, employers cannot treat them unfavourably or penalise them, for example by:
- cutting their hours or regular overtime
- denying them annual leave
- transferring them to undesirable duties
- not granting a promotion
- not providing them with access to services and training in the workplace
- terminating their employment.
What are reasonable requests and concerns
When an employee voices a concern or asks their employer a question about their employment entitlements at an appropriate time (such as within work hours) and without making an unrealistic demand, this is usually a reasonable request.
Typical reasonable requests include:
- What is my rate of pay? How much leave have I accrued?
- Can I vary my hours to pick up my child from school?
- Do I have an entitlement to maternity leave?
- Should I be paid overtime?
- I’ve heard the company is going under and I will not be getting my redundancy payout.
When an employee makes a reasonable request or communicates a concern they should:
- clarify the request and ensure it is reasonable
- check their contract, employment agreement, website or payslip for the information in case it is already available
- consider putting their request in writing
- make the request to their employer, manager or designated human resources or payroll officer
- consider the needs of the workplace and choose an appropriate time to make a request.
An unreasonable request may be one that:
- is made at an impractical or inappropriate time
- carries an unrealistic or excessive demand
- is made in a violent or threatening manner.
For example, Cliff works as machinist for a medium-sized sheet metal fabrication business. Cliff is concerned about the way his overtime has been allocated. He calls his employer at home on Sunday afternoon and asks him for a report of all the overtime allocation and how much other employees have been paid in the last two years. This request may be unreasonable because it was made at an inappropriate time – outside work hours – and asks for private information about other employees.
Examples of employment activity discrimination
Joey works at a take away food shop that has three employees. He asks the owner if he should be receiving penalty rates for time worked on Saturdays. Soon after this, Joey’s Saturday hours are reduced.
Leanne works for a car detailing business and asks the manager about her maternity leave entitlement. The manager responds by dismissing her, saying that her position is no longer required. In this case the business owner is liable for the manager’s behaviour as the employer.
Jill has been working as a hairdresser for six months and has not received a payslip. She raises the matter with her employer and is told to stop asking questions. A few days later, she is told not attend to customers and is given cleaning duties instead. She believes she has been treated unfavourably because she raised a concern about her entitlements and seeks advice from the Commission.
Are there any exceptions?
The Equal Opportunity Act 2010 includes some general exceptions. This means that discrimination may not be against the law in particular circumstances.
Employers may be vicariously liable for their employees’ acts of discrimination or sexual harassment. Employers can also be directly liable. Find out more about who is liable for discrimination and harassment.
Employers also have a positive duty to eliminate discrimination, sexual harassment and victimisation as far as possible.
Complaints of discrimination made to the Commission are resolved through a process called conciliation. Find out more about our process for resolving complaints.