Discrimination at work

What is d​iscrimin​ation?

Discrimination is treating someone unfairly because of their background or certain personal characteristics. Unlawful discrimination is when an employer takes adverse action against an employee because of any of the following attributes:

• gender identity
• sexual orientation
• intersex status
• race, including colour, nationality or ethnicity, or immigrant status
• age
  
• disability
• marital or domestic status
• pregnancy
  
• breastfeeding
  
• carer's or family responsibilities
  
• religion
• experiencing family and domestic violence.

For more information, see Workplace discrimination on the Fair Work Ombudsman website.

What laws make discrimination unlawful?

There are State and Federal laws that make discrimination unlawful in the workplace, including:

• Anti-Discrimination Act 1977 (NSW)
• Racial Discrimination Act 1975 (Cth)
• Sex Discrimination Act 1984 (Cth)
• Disability Discrimination Act 1992 (Cth)
• Age Discrimination Act 2004 (Cth).
  

These laws can cover everything that happens at work, such as applying for a job, how you are treated at work, and leaving your job. Anti-discrimination laws also make sexual harassment unlawful.

Additionally, the Fair Work Act 2009 (Cth) also says that national system employees have certain rights that are protected in the workplace, including the right not to be discriminated against by your employer. A breach of this right is called adverse action.

For more information, see Workplace discrimination on the Fair Work Ombudsman website.

What can I do if I am bein​g discriminated against at work? 

If you are being discriminated against at work (including sexual harassment), you can:

• speak to the person involved to tell them about your concerns if it is safe to do so - you can try to resolve the situation without taking formal action. It is a good idea to keep notes and records of who you spoke to, when and what was said.
  
• speak to your manager or supervisor about what is happening - you should keep a record of any conversation you have with them
  
• consider any workplace policies or processes that might assist you to deal with the complaint
  
• speak to your Human Resources team (if you have one) or your union (if you are a member)
• ​complain to Anti-Discrimination NSW or the Australian Human Rights Commission (which one you go to may depend on the type of unlawful discrimination involved)
• complain to the Fair Work Ombudsman about a breach of your general protection rights, or
• apply to the Fair Work Commission for dispute resolution.

If you have a work related injury or illness because of the situation, for example, anxiety or stress, you should speak to your GP.

For more information, see Ask for our help with a workplace problem on the Fair Work Ombudsman website.

Who should I com​plain to?

Making a complaint can be stressful and confusing. Many different options apply, and your best option will depend on the circumstances of your case. You should get legal advice about your situation.

Can I make more tha​n one complaint?

In some cases, you might be able to make more than one complaint, but it depends on your situation.

Before you make a complaint, you should get legal advice.

Is there a time li​mit on making a complaint? 

​You have 12 months from when the discrimination occurred to make a complaint to Anti-Discrimination NSW.

You have 24 months to make a complaint to the Australian Human Rights Commission (AHRC) from when the discrimination occurred.  Before 12 December 2022, the time limit was 6 months for any complaints other than those involving unlawful sex discrimination or sexual harassment.

For complaints about employment discrimination based on religion, criminal record, trade union activity, sexual preference, political opinion and social origin, you have 12 months to make a complaint to the AHRC. 

If your complaint is about serious vilification, it may be referred to the Attorney General by Anti-Discrimination NSW to be prosecuted as a crime. The prosecution must be started within six months of the crime, so you should make your complaint as soon as possible. 

For more information, see Vilification on the Anti-Discrimination NSW website.

An application to deal with a general protections dismissal dispute must be lodged by the employee within 21 calendar days after the day the dismissal took effect.

The 21 calendar day time limit does not apply to general protections applications that do not involve a dismissal. Applications where the employee has not been dismissed can be lodged up to six years from the day the alleged contravention occurred.

For more information, see General protections - Frequently Ask Questions and the Termination topic.

Can bullying or harassment a​t work be discrimination?

Not all bullying fits within the legal definition of unlawful discrimination. For bullying at work to be unlawful discrimination it needs to be based on a person's background or personal characteristics, such as their gender identity, race, age, marital status, sexual orientation, disability, pregnancy, breastfeeding, intersex status, or carer's or family responsibilities.

For more information, see Bullying & harassment on the Fair Work Ombudsman website.

If you have been bullied or discriminated against at work, you should get legal advice.

How do I make a complain​t to Anti-Discrimination NSW?

For information about how to make a complaint, including the complaint forms, see How to make a complaint on the Anti-Discrimination NSW website. 

You have 12 months from when the discrimination occurred to make a complaint.

Before you make a complaint to Anti-Discrimination NSW, you should consider all the options available to you and get legal advice.

How do I make a compla​int to the Australian Human Rights Commission?

You can make a complaint about discrimination to the Australian Human Rights Commission (AHRC) by:

• completing a complaint form and posting it to the AHRC, or
  
• making a complaint online.
  

For more information about the complaint process, see Make a complaint on the AHRC website.

You have six months from when the discrimination occurred to make a complaint.

Before you make a complaint to the AHRC, you should consider all the options available to you and get legal advice.

What if it is past the time limit for making a discrimination complaint?

The time limit to make a complaint to Anti-Discrimination NSW is 12 months from when the discrimination occurred. 

The time limit for making a complaint to the Australian Human Rights Commission is six months from when the discrimination occurred. 

In some cases, you might be able to complain out of time, but you should get legal advice about your circumstances.

No need for this paragraph anymore.

Different rules apply if you have been dismissed. For more information, see the Termination topic.

What if I complained at​ work about th​e discrimination and am being treated worse as a result?

If you made a complaint based on discrimination at work (including sexual harassment), it is unlawful for your employer to victimise you for making the complaint. Victimisation is when you are treated worse, or poorly, because you made a complaint. It can include things like isolating you from your colleagues or changing your work duties. 

You can make a victimisation complaint to Anti-Discrimination NSW or the Australian Human Rights Commission.

For more information, see:

• Victimisation on the Anti-Discrimination NSW website, and
• Complaints on the Australian Human Rights Commission website.

You can also make a general protections claim to the Fair Work Commission for breach of a workplace right. 

For more information, see General protections - Frequently Asked Questions.

If you believe you are being victimised for making a complaint, you should get legal advice.

Can I complain to the Fair Work Ombudsman?

If you are a national system employee, you can make a complaint to the Fair Work Ombudsman about discrimination. 

You have a legal right at work to be protected for unlawful discrimination. If your employer is unlawfully discriminating against you, it may be adverse action and you could apply to the Fair Work Commission to resolve your dispute or apply to the Federal Circuit and Family Court of Australia. 

For more information, see General protections - Frequently Asked Questions.

Can I start legal action if my complaint wasn't resolved?

If you made a complaint and you couldn't resolve the problem with your employer, you may be able to take legal action. The legal action available to you will depend on the type of complaint you made.

If you made a complaint to Anti-Discrimination NSW, you may be able to apply to the NSW Civil and Administrative Tribunal.

If you made a complaint to the Australian Human Rights Commission, you may be able to start court proceedings in the Federal Circuit and Family Court or the Federal Court of Australia.

If you made a complaint to the Fair Work Ombudsman, you may be able to apply to the Fair Work Commission.

Before starting legal action, you should get legal advice.

Can I apply t​o the NSW Civil and Administrative Tribunal about discrimination at work?

If Anti-Discrimination NSW does not resolve your complaint, you can ask for it to be referred to the Administrative and Equal Opportunity Division of the NSW Civil and Administrative Tribunal (NCAT). In some cases, the President of Anti-Discrimination NSW can refer your complaint to NCAT, even if you do not ask for this to happen.

There is no fee to apply to NCAT in these cases.

Do I need a lawyer to re​present me at the NSW Civil and Administrative Tribunal?

The NSW Civil and Administrative Tribunal (NCAT) encourages you to run your own case without needing a lawyer or other representative.

If you want a lawyer to represent you, you will need to make a request in writing to NCAT.

For more information, see Representation on the NCAT website.

Are there legal costs if ​I go to the NSW Civil and Administrative Tribunal?

Generally, you will have to pay your own legal costs if you have a lawyer representing you in the NSW Civil and Administrative Tribunal (NCAT). In some cases, NCAT can make a costs order against the losing party, for example, where they caused unreasonable delay, or did not follow an order.

Is there a Duty Solicitor at the NSW Civil and Administrative Tribunal?

There is no Duty Solicitor available at the NSW Civil and Administrative Tribunal (NCAT). 

Can I apply to the Federal Court of Australia or Federal Circuit and Family Court of Australia to have my complaint heard about discrimination at work?

You can apply to the Federal Court of Australia or Federal Circuit and Family Court of Australia within 12 months of the discrimination at work.

If you first made a complaint to the Australian Human Rights Commission (AHRC), you have 60 days from when the AHRC issues a termination notice to apply to the Federal Court of Australia or Federal Circuit and Family Court of Australia.

From 12 December 2022, a representative body, such as a union can apply to the Federal Court of Australia or Federal Circuit and Family Court of Australia on behalf of an individual or a group of people with regards to a terminated complaint.

Before applying to the Federal Court of Australia or the Federal Circuit and Family Court of Australia, you should get legal advice. 

Can I make an application to t​he Fair Work Commission?

You have a legal right at work to be protected from unlawful discrimination.

If your employer is unlawfully discriminating against you, it may be adverse action (unless you are a state system employee). You could apply to the Fair Work Commission to resolve your dispute or apply to the Federal Circuit and Family Court of Australia.

For more information, see General protections - Frequently Asked Questions.