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I have been discriminated at work: Should I lodge a discrimination (adverse action) claim?

Published on April 30, 2025 by Tim Grellman

Discrimination at work causes significant distress for employees. If you have been discriminated against, you are likely wondering; should I lodge a discrimination claim and what legal avenues and remedies are available to me?

Simply put, there are several types of claims you can pursue. However, navigating these claims and determining your prospects of success can be complex.

Discriminated employees commonly pursue a general protections application. While this is not the only avenue available, general protections applications are a very common option for workers.

General protections applications are commonly referred to “adverse action” claims. They arise under the Fair Work Act which prohibits employers from treating an employee adversely “because” of a proscribed reason, including their gender, race, ethnicity, gender, sexual orientation and religion.

Notably, “prospective employees” are also protected under these laws. So, if you were discriminated against at a job interview prior to obtaining employment, you should still obtain legal advice. Unlike the unfair dismissal jurisdiction, independent contractors are also protected.

Adverse action claims are available to you if three key elements exist:

1. You exercised a workplace right (such as commencing a workers compensation claim or taking sick leave), made a workplace complaint or had a protected attribute that was discriminated against (again, such as gender, race, ethnicity, age, sexual orientation, religion);
2. The employer took adverse action against you. This can include termination of employment, a demotion, a pay cut, a change in duties or anything else that disadvantages you at work. Importantly, termination of employment is not necessary to satisfy this element. You can commence a claim prior to termination of employment if you have otherwise been injured/disadvantaged in your work; and
3. Element (2) occurred because of element (1).  That is, the adverse action must have been taken because of the employee’s exercise of a workplace right, making of a complaint or because of their protected attribute.

It is essential to be mindful that if the “adverse action” taken against you was termination of employment, you have 21 days from the date of termination to lodge a claim. This means that you should obtain legal advice as soon as possible to obtain advice on your prospects of success.

In adverse action claims, element (3) is often the most difficult one to establish. By way of an example, employees who are on maternity leave or sick leave (which satisfies element (1)) often have their employment terminated (which satisfies element (2)). However, if they are terminated for a reason other than their workplace right/protected attribute, prospects of success are generally more difficult.

Given this, you should obtain legal advice as to your prospects. In particular, your lawyer can advise if it is arguable that you were discriminated against “because of” a protected attribute like your gender, age, ethnicity or religion.

Notably, though, the workplace right/protected attribute does not have to be the sole or dominant reason for the adverse action. As long as the workplace right/protected attribute is a “substantial and operative reason” for the adverse action, prospects of success are generally stronger.

Several examples help illustrate circumstances in which an applicant can succeed. Courts have found in favour of applicants in the following examples:

• When an employee was told she was being dismissed because she was not from a particular racial/ethnic heritage;
• When an employee was told he was being dismissed because “he is always sick”; and
• When an employee was demoted and eventually terminated because she was pregnant.

You should obtain legal advice as soon as possible as to your prospects in an adverse action claim and whether you could obtain the outcome you are seeking, which could include:

• Reinstatement of employment; and/or
• Backpay for time since the dismissal (although there is a requirement to try to mitigate against your loss of income); and/or
• Compensation.

Unlike the unfair dismissal jurisdiction, compensation available is not capped to a maximum of six months’ pay. In fact, it is not capped at all. It is important to remember that the remedies available to you (particularly compensation) are potentially very significant. Given this, it is sensible, at a minimum, to obtain legal advice as to whether you have strong prospects in an adverse action claim.

Carroll & O’Dea Lawyers can assist you in your consideration of these questions, and help you navigate the general protections (adverse action) jurisdiction to obtain your desired outcome.

Please note that this article does not constitute legal advice. If you are seeking professional advice on any legal matters, you can contact Carroll & O’Dea Lawyers on 1800 059 278 or via our Contact Page and one of our lawyers will be able to assist you.