Employees are protected from certain forms of workplace discrimination and cannot be dismissed due to their protected attributes. The careful handling of dismissals, particularly when an employee is likely to claim they were dismissed due to a personal attribute, or because they exercised a workplace right, is important to avoid claims. Two recent decisions from the Fair Work Commission offer important lessons for business owners on how to avoid, manage, or resolve such claims effectively.
What are protected attributes?
The Fair Work Act 2009 prohibits an employer from taking adverse action against an employee or prospective employee on the basis of certain protected attributes. These attributes include race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction, and social origin.
What is considered adverse action?
Adverse action can include forced resignation, dismissal, demotion, changes to conditions, threats, or other detrimental treatment.
Under the Fair Work Act, a forced resignation, also called constructive dismissal, occurs when an employee resigns but only because of their employer’s conduct, meaning they had no real choice but to leave. This can happen if the employer says, ‘resign or be terminated’, creates intolerable working conditions, or makes major changes to the role without the employee’s agreement. In these cases, the law treats the resignation as a dismissal, giving the employee potential access to unfair dismissal or general protections claims.
Want to better understand compliance requirements in the dismissal process? Our Discipline and Termination Kit can help. Find out more.
Recent Fair Work Commission examples exploring workplace discrimination
Case 1: Autism and misconduct
A service desk analyst failed to persuade the Fair Work Commission that she was dismissed by a state anti-corruption commission because of behaviours linked to her Autism, such as her direct communication style and tendency to critique colleagues’ work, rather than due to misconduct.
The analyst commenced employment in November, assisting staff with IT issues through a ticketing system. Soon after, she raised concerns about an uneven allocation of tickets, suspecting a colleague of deliberately holding onto them.
Initially, the employee did not disclose her autism, only mentioning a “neurological condition”, which led the employer to offer flexibility with her hours and remote work. At her six-week probation meeting, the employee formally disclosed her autism spectrum disorder diagnosis and again raised the ticket distribution issue.
The employer’s people and culture director shared this information with her managers, who then implemented adjustments to support her. These included:
- Providing written instructions instead of verbal ones
- Offering clear deadlines and advance notice of changes
- Using straightforward, unambiguous communication
- Allowing extra time for processing information
- Giving regular positive feedback
An “Autism tip sheet” was also circulated to help the team understand how to work effectively with her.
In January, after again voicing concerns about her colleague, the analyst accessed system login records to check her suspicions, despite being told to “let it go.” She discovered her colleague had been working late at night and shared her findings, but this was reported to management as a breach of policy.
The employer concluded she had violated their information security rules by accessing logs without authorisation. The HR team considered this serious misconduct and prepared a recommendation for her dismissal. The supporting document also referenced her communication style, tendency to challenge colleagues, and perceived combative behaviour, which she interpreted as the true reasons behind her termination. Days later she was called to a meeting via Microsoft Teams and informed that the employer no longer trusted her because of the breach, resulting in dismissal.
Case 2: Gender bias and resignation
An employee resigned from her FIFO role at a remote gas facility in WA. She claimed she was forced to resign after being subjected to persistent gendered language, terms such as gents, fellas, lads and brothers, as well as being excluded from critical work communications and assigned less complex tasks.
The employer arranged a meeting where an apology was offered, and management showed effort in addressing her concerns. She then chose to leave her shift early and tendered resignation. In her general protections claim, she argued her resignation was not voluntary but forced by the workplace culture.
The Fair Work Commission’s determinations
In the first case, the Fair Work Commission determined that the employer terminated the employment of the service desk analyst because she accessed another employee’s information without approval, not because of her Autism diagnosis. The Fair Work Commission noted the worker had not provided sufficient evidence to show her actions were connected to her condition. The simple existence of a protected attribute was not enough to determine that any behaviour potentially connected to that attribute would protect the employee from adverse action including, in this case, dismissal.
In the second case, the question was whether the employer’s conduct objectively forced the employee to resign. The Fair Work Commission found it did not. The employer did not ignore or trivially dismiss the employee’s concerns; management engaged actively, position options were offered, and there was no evidence of deliberate exclusion. The Fair Work Commission found that the employee had alternatives available – such as internal formal processes, different work arrangements, or continuing despite frustrations. The Fair Work Commission concluded she voluntarily resigned, so no adverse action had occurred.
Key lessons for business:
- Base your disciplinary or termination decisions squarely on evidence of misconduct or poor performance, not personal traits.
- Document all steps of the process clearly, including any reasonable adjustments made for employees with protected attributes.
- Voluntary resignation is not necessarily a constructive dismissal. Employers must be mindful that not all unhappy resignations are legally forced resignations.
- Act on complaints quickly, thoroughly, and document all efforts. Even if you’re not able to find a perfect solution, genuine engagement and attempts to rectify issues matter.
- Offer alternatives in writing (e.g., role changes, internal transfers, formal complaint processes) – offer employees real choices to try and avoid resignation in the first instance.
How Business Chamber Queensland can help
General protections claims can be legally sensitive and stressful, especially when you’re a small business without in-house HR resources. Business Chamber Queensland offers practical support to limit risks and handle disputes effectively, including:
- Pre-claim advice: We can review your draft disciplinary letters, performance notices, or briefing notes for unintended bias or legal exposure.
- Policy and documentation support: We’ll help you create or refine processes, from onboarding to complaints management, to ensure clarity and compliance.
- Training and awareness: Workshops and sessions on respectful communication, reasonable adjustments, and complaint handling to help build a strong workplace culture.
- Conciliation and representation: We can assist in responding to Fair Work Commission notices or attending conciliation or arbitration confidently and with preparation.
References:
Case 1 – Erika Duncan v IBAC ([2025] FWC 1731)
Case 2 – Thea Slatyer v Chevron Australia Pty Ltd ([2025] FWC 2394)
