Discrimination, termination and other legal challenges brought on by COVID-19

Laws have prohibited workplace discrimination in Australia since 1966. Today, a number of federal anti-discrimination laws criminalise behaviour that discriminates based on race, colour, nationality, sex, marital or pregnancy status, disability and age. However, as the entire workforce landscape continues to shift throughout the COVID-19 crisis, preventing workplace inequality and discrimination has become a key issue.

Has COVID-19 increased cases of workplace discrimination?

The COVID-19 pandemic has brought hardship on Australians – many have lost their jobs or seen working hours be significantly reduced, amplifying financial stress. However, certain groups in the workforce are at greater risk of facing discrimination than others.

For a combination of reasons, female employees have been disproportionately impacted by the pandemic. Traditionally female-dominated sectors such as retail, aged care and social work have been amongst the hardest hit by COVID-19; aside from reduced shifts and business closures, the nature of these industries means workers may also face heightened exposure to the virus. Further, as a result of working from home and school closures, women are likely to bear extra caring responsibilities in addition to their work commitments.

Some employers may also pressure employees working remotely to reduce their hours. In turn, this impacts pay equity, career progression, superannuation, and redundancy entitlements. With few protections against reduced shifts or dismissals, casual employees are another group at increased risk of workplace discrimination during COVID-19. Younger and older employees are also more likely to engage in insecure work, and therefore receive less protection against the pandemic’s effects.

However, discrimination is not the sole area of focus when it comes to workplace law in the age of COVID-19 – unconscionable conduct and unfair dismissal are two other areas of heightened importance.

Unconscionable conduct suit brought on by COVID-19

In January, headlines were generated when Carly Bullock, a young paralegal, brought a suit against a top-tier Brisbane law firm, alleging that the firm coerced her into taking a 20% pay cut due to COVID-19 implications. According to the suit, the paralegal was led to believe that her employment would be terminated if she did not accept the $15,000 salary cut. In an online article, Butlers Business Lawyers explained the precedent that this case could set. “As an unprecedented case, the outcome may spark further claims by those who experience layoffs, resignation, or pay cuts due to the COVID-19 pandemic,” the firm said. 

This suit highlights the fine line between operational changes and unconscionable conduct in the context of COVID-19. Sydney law firm Gilchrist Connell said that an employer can ask, but cannot insist, that an employee take a pay cut. “You may wish to approach this on a company-wide basis. However, do so very cautiously and with legal advice, ensuring not to take adverse action against employees who refuse to take a pay cut. Doing so is likely to result in a liability under the general protections provisions of the Fair Work Act,” the firm wrote in a post on its website.

Unfair dismissal in COVID-19

Alysia Blackham, associate professor at the University of Melbourne’s Melbourne Law School, detailed the way in which the pandemic has elevated aspects of workplace discrimination and inequality in an article featured in the University of Melbourne’s publication Pursuit. She addressed the risks posed by COVID-19 to employment law and outlined the demographic groups at highest risk of facing increased discrimination in the workplace. “Employers should be attuned to any possible inequalities in their responses to COVID-19 if staff are being stood down, made redundant, being compelled or encouraged to take a pay cut or to reduce their hours,” she wrote.

For instance, employers should be aware that employees who are temporarily absent from work due to illness or injury are protected from losing their jobs under the Fair Work Act 2009. Further, employees who are obliged under workplace health and safety laws to quarantine or self-isolate cannot be dismissed from their place of employment.

In the age of COVID-19, employers must also take extra care to ensure that redundancies are made on valid grounds, as the result of a December unfair dismissal suit against the Metropolitan Coal Miners showed. Although the company cited the negative impacts of COVID-19 as the cause of the redundancies of 24 workers, the Fair Work Commission found that the employees could have been redeployed into work that was outsourced. Thus, the case highlighted the need for employers to ensure that company restructures due to COVID-19 are legally compliant.

Sick leave laws in COVID-19

Understanding sick leave laws under the pandemic is also paramount for employers; provided that their instructions are based on factual information and comply with health and safety risks, employers can direct employees who are sick with COVID-19 to stay home from work.

According to the Fair Work ombudsman, if an employee has been directed not to attend work in these circumstances, the employee is not entitled to be paid, unless they use paid sick leave or are enrolled in the JobKeeper scheme. Those employees with no accrued paid sick leave can take unpaid sick leave.

The Australian government has also introduced a pandemic leave disaster payment program, which provides a lump sum payment to help those who cannot earn an income because they must self-isolate or care for a COVID-19 patient. The payment has been made available to eligible workers in all six Australian states and the ACT. 

The eligibility requirements differ slightly across states. Generally, individuals must have been directed by the relevant body to self-isolate or quarantine, and must also:

• be at least 17 years old and live in that state
• be an Australian resident or hold a visa that gives them the right to work in Australia
• be unable to go to work and earn an income
• have no appropriate leave entitlements, including pandemic sick leave, personal leave or leave to care for another person
• be in quarantine after the relevant date