Discrimination in the workplace; family or carer

“Subject to certain exceptions, s 351 of the Fair Work Act 2009 (Cth) prohibits an employer from taking adverse action against an employee or prospective employee for various reasons, including race and family or carer responsibilities. “Adverse action” is defined in s 342 of the Act to include dismissing an employee and refusing to employ a prospective employee. A person takes action for a particular reason if the reasons for the action include that reason (s 360). These provisions appear in Chapter 3 Part 3–1 of the Act. If, in an application in relation to a contravention of this Part, it is alleged that a person took action for a particular reason and taking that action for that reason would constitute a contravention of the Part, then it is presumed that the action was taken for that reason unless the person who took the action proves otherwise (s 361(1)).”

Herbert v Star Aviation Pty Ltd [2019] FCAFC 136 (14 August 2019) (Katzmann, Colvin and Thawley JJ)