Employers need to take steps to avoid a discrimination claim and understand how to defend them. Discrimination claims can be challenging for employers to defend. This is because there is a reverse onus of proof and the employer must prove they did not discriminate.
In Australia, discrimination claims are typically handled by the Fair Work Commission under ‘general protections’ claims. They can also be dealt with by the Australian Human Rights Commission.
Employers are required to defend allegations that they have breached workplace laws relating to discrimination. This can include claims that an employee was dismissed or unfavourably treated at work due to a discriminatory reason.
employment lawyers, explores proactive strategies that can assist businesses in successfully defending these claims.
Key Takeaways
- Understand the types of discrimination under Australian law
- Follow best practices to prevent discrimination and promote workplace equality in your business operations
- Document all employment processes and decisions clearly to track your compliance
- Ensure that internal complaint procedures are well-known and followed within the business
- Seek legal advice early to guide your response in preparation of a claim
What is Discrimination Under the Fair Work Act?
The Fair Work Act 2009 prohibits employers from taking adverse action against employees or prospective employees due to certain protected attributes, such as race, sex, disability, age, pregnancy and religion, among others.
Adverse action includes actions by the employer such as:
- termination
- demotion, or
- refusing to hire someone
Employers defending a claim will need to demonstrate that they have not breached a general protection. They will also need to show that any action taken against an employee or potential employee was for reasons unrelated to the protected attributes, and in accordance with workplace laws. pregnancy discrimination in the workplace in our article.
How to Defend a Discrimination Claim
Defending a discrimination claim requires employers to follow specific steps to protect their business and employees.
With the Fair Work Commission overseeing such cases, employers must ensure they have a solid defence. Employers can increase the chances of successfully defending a discrimination claim by:
- maintaining clear documentation
- adhering to anti-discrimination laws
- proactively developing internal processes
Here’s what you need to know.
Best Practices: Preventing Discrimination Complaints
Prevention is the best defence against discrimination claims. Regular training on discrimination laws, unconscious bias, and workplace behaviour is essential to ensure employees and managers understand their obligations.
Employers should have well-documented workplace policies that align with anti-discrimination laws and promote a culture of inclusion and respect.
Ideally, if you follow proper workplace policies, the likelihood of a general protections claim for discrimination occurring is greatly reduced.
Key Role of Documentation in Defence Strategies
Proper documentation is crucial when defending any workplace claim, especially in discrimination matters. This is because there is a reverse onus of proof. Once an employee makes a claim for adverse action:
- the nature of the claim is assumed to be true
- the employer must prove that the action was taken other than because of a prohibited reason
Employers must maintain thorough records of key employment decisions, such as reasons for recruitment, promotions, disciplinary actions, and terminations. These records should clearly outline the non-discriminatory reasons behind each action.
Internal Complaint Procedures for Employers
Employers should have accessible and transparent complaint procedures to internally handle concerns about discrimination.
If an employee raises an issue, this procedure gives employers the opportunity to address it promptly and fairly. Further, the employer must follow the procedure and not apply it differently across different staff.
Additionally, demonstrating that an employer attempted to resolve matters internally, and in accordance with its procedures, can support a defence to a discrimination claim.
Engage in Conciliation with the FWC
The FWC often encourages conciliation, where both parties attempt to resolve the issue before a formal hearing.
Employers should be prepared to negotiate in good faith during this stage, especially if they identify an error on their part. Successfully resolving the matter at conciliation can save time, costs, and avoid the stress of litigation.
Prepare a Legal Defence
If conciliation fails and the matter proceeds to a formal hearing, employers must prepare a strong legal defence.
This involves gathering evidence, witness statements, and any documentation supporting the employer’s non-discriminatory reasons for their actions.
Legal representation is crucial at this stage to present the case effectively and align with procedural requirements of the FWC.
Learn more about the FW Act in our guide for employers
Case Law Examples: Discrimination Claims in Australia
Fair Work Ombudsman v A Dalley Holdings Pty Ltd
An aged care worker was effectively prevented from resuming her original part-time shifts after returning from maternity leave. Instead, management offered only “sleepover” shifts. The Federal Court held this amounted to adverse action linked to pregnancy and family responsibilities, violating the Fair Work Act.
Outcome: The company was fined $27,720, the manager fined $3,168, and the employee awarded $5,000 compensation.
Employer Defence Checklist
Employers facing a discrimination claim should strengthen their defence by ensuring they have:
Recruitment notes showing transparent selection criteria and decision-making.
Performance records retained for at least seven years to evidence objective grounds for decisions.
Redundancy documentation that demonstrates genuine operational reasons.
Records of parental leave and flexible work discussions, including responses provided.
Early involvement of HR/legal advisors as soon as a complaint or risk is identified.
Having this evidence ready helps employers discharge the reverse onus of proof under the Fair Work Act.
2025 Legal Updates for Employers
Recent legal changes mean employers now face stronger obligations when managing discrimination risks:
Positive Duty in Queensland: Reforms to modernise Queensland’s Anti-Discrimination Act 1991 were originally due to commence on 1 July 2025. These reforms would have introduced a positive duty on employers and organisations to take reasonable steps to prevent discrimination, vilification, and sexual harassment – similar to laws already in place in Victoria, the ACT, NT, and federally.
However, in March 2025, the Queensland Government announced the reforms would be paused for further consultation. On 30 April 2025, the start date was formally delayed, and no new commencement date has been announced.fication and sex-based harassment in line with the Respect@Work report.
For now, Queensland employers are not yet subject to these duties, but the direction of reform is clear, and proactive preparation will help businesses adapt smoothly when the laws eventually commence.
Expansion of Family and Carer Responsibility Protections: Federal reforms in 2025 have strengthened rights for employees with family and caring responsibilities. Employers must carefully consider flexible work requests and avoid decisions that disadvantage staff balancing parental responsibilities.
Takeaway: Employers should update workplace policies, conduct manager training, and review decision-making processes to ensure compliance with these new duties.
Frequently Asked Questions
What should I do if an employee makes a discrimination claim with the FWC?
- reviewing your workplace policies to ensure you followed proper procedures
- gather all relevant facts and documents regarding the claim
- seek legal advice as soon as possible to guide your next steps
Can discrimination complaints be resolved without going to the Fair Work Commission?
What is considered discrimination under the Fair Work Act?
Discrimination can include when an employer behaves in a way that harms a person because they have a certain feature or attribute.
A person’s ‘features and attributes’ can include:
- race
- colour
- sex
- sexual orientation
- breastfeeding requirements
- gender identity
- intersex status
- age
- physical or mental disability
- marital status
- family or carer responsibilities
- pregnancy
- religion
- political opinion
- national extraction (such as their heritage, their citizenship, or where they or their parents were born)
- social origin (such as their social class or group, language and customs)
- subjection to family and domestic violence
What actions are not discrimination?
Section 351(2) of the Fair Work Act 2009 outlines actions by an employer that may not be considered actions of discrimination. This includes where action is taken that is:
- allowed under state or territory anti-discrimination laws
- based on the inherent requirements of the position
- taken to avoid injuring religious beliefs in some specific circumstances
What happens if the claim proceeds to a hearing?
If a discrimination claim reaches a hearing with the FWC, both parties will present their case. This may include presenting witness statements, emails and file notes. The FWC will make a decision based on the evidence provided, so it’s essential to have a strong legal strategy and representation.
By following these guidelines and proactively addressing discrimination risks, employers can significantly strengthen their ability to defend discrimination claims at the FWC.
