An overview of legal procedure & case law
To discriminate is to make a distinction in favour of or against a person or thing.[1]
Discrimination between employees involves an employer deliberately treating an employee, or a group of employees, less favourably its other employees.[2]
The element of intent is central to establishing discrimination. To discriminate requires a conscious decision to make a distinction.[3]
Discrimination in this context is not limited to direct discrimination and could encompass indirect discrimination.[4] Indirect discrimination is conduct that is ‘facially neutral’ but may nevertheless amount to, or result in, less favourable treatment.[5]
Determining whether an employer has discriminated between an employee and other employees requires a comparative test between the applicant and another employee who acted in the same way as the employee in question.[6]
[1] Hodkinson v The Commonwealth [2011] FMCA 171 (31 March 2011) at para. 176, [(2011) 207 IR 129].
[2] ibid., at para. 178.
[4] Klein v Metropolitan Fire and Emergency Services Board [2012] FCA 1402 (10 December 2012), [(2012) 208 FCR 178]; Waters v Public Transport Corporation (1991) 173 CLR 349; Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32 (7 September 2012), [(2012) 248 CLR 549].