7.7.2 – Discrimination offence

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  1. Section 76 of the Occupational Health and Safety Act 2004 is entitled ‘Prohibition on discrimination’. The section creates an indictable offence that applies where an employer engages in adverse conduct as a result of a person’s actions in relation to health and safety issues.
  2. The offence consists of 5 elements:
    1. the accused is an employer or prospective employer;
    2. the complainant is employed by the accused or was a prospective employee of the accused;
    3. the complainant engaged in protected action;
    4. the accused engaged in adverse conduct against the complainant;
    5. the dominant reason why the accused engaged in that conduct was because the complainant engaged in protected action (Occupational Health and Safety Act 2004 s76).

    Accused an employer or prospective employer

  3. The first element is that the accused is an employer or prospective employer (Occupational Health and Safety Act 2004 s76).
  4. For information on this element, see Employer’s Duty to Employees.

    Complainant an employee or prospective employee of accused

  5. The second element is that the complainant was an employee or prospective employee of the accused (Occupational Health and Safety Act 2004 s76).
  6. For information on employment relationships and distinguishing employees from independent contractors, see Employer’s Duty to Employees.

    Complainant engaged in protected action

  7. The third element is that the complainant:

    (a) is or has been a health and safety representative or a member of a health and safety committee;

    (b) exercises or has exercised a power as a health and safety representative or as a member health and safety representative or as a member of a health and safety committee; or

    (c) assists or has assisted, or gives or has given any information to, an inspector, the Authority, an authorised representative of a registered employee organisation, a health and safety representative or a member of a health and safety committee; or

    (d) raises or has raised an issue or concern about health or safety to the employer, an inspector, the Authority, an authorised representative of a registered employee organisation, a health and safety representative, a member of a health and safety committee or an employee of the employer (Occupational Health and Safety Act 2004 s76(2)).

  8. Proof for Occupational Health and Safety Act 2004 s76(2)(d) that the employee raised an issue or concern about health or safety, is a question of fact for the jury to be assessed in the circumstances of the case (DPP v Acme Storage Pty Ltd [2017] VSCA 90 at [26]).
  9. While the jury may consider evidence that the employee acted disingenuously and did not genuinely seek to raise a health and safety issue, it is not necessary for the prosecution to affirmatively prove that the employee’s actions were genuine (DPP v Acme Storage Pty Ltd [2017] VSCA 90 at [27]).
  10. In assessing whether an employee has raised a health and safety issue, it is not appropriate to draw a distinction between “genuine” concern about health and safety and an “industrial” objective. This is a false dichotomy, as there is no necessary inconsistency between health and safety objectives and industrial objectives (DPP v Acme Storage Pty Ltd [2017] VSCA 90 at [33]).

    Adverse conduct

  11. The fourth element is that the accused engaged in one or more forms of proscribed adverse conduct (Occupational Health and Safety Act 2004 s76).
  12. The prohibited forms of adverse conduct are:

    (a) dismiss or threaten to dismiss an employee;

    (b) injure or threaten to injure an employee in the accused’s employment;

    (c) alter or threaten to alter the position of an employee to the employee’s detriment;

    (d) refuse or fail to offer employment to a prospective employee;

    (e) treats a prospective employee less favourably than another prospective employee would be treated in offering terms of employment (Occupational Health and Safety Act 2004 s76(1)).

  13. The word “threat” carries its ordinary meaning. In DPP v Acme Storage Pty Ltd [2017] VSCA 90 at [40], the Court of Appeal quoted with approval the following parts of the Macquarie Dictionary definition of threat:

    1. a declaration of an intention or determination to inflict punishment, pain or loss on someone in retaliation for, or conditionally upon, some action or course; menace.

    2. an indication of probable evil to come; something that gives indication of causing evil or harm.

  14. There is no part of this element which requires the prosecution to prove that the accused intended to carry out the threat, intended that the employee believe the threat or that the accused was reckless as to whether the employee would believe that the threat would be carried out (DPP v Acme Storage Pty Ltd [2017] VSCA 90 at [42]).
  15. It is also not necessary to prove that the threat was communicated to the employee who was said to be the subject of the threat (DPP v Acme Storage Pty Ltd [2017] VSCA 90 at [43]).
  16. Terms such as “dismiss”, “injure”, “alter” and “detriment” are not used in a special legal sense. They are ordinary words and the judge does not need to give the jury a special legal definition. However, the judge can give the jury assistance on matters to consider when deciding whether the relevant form of conduct has been proved (DPP v Acme Storage Pty Ltd [2017] VSCA 90 at [78]-[84]).

    Reason for prohibited conduct

  17. The fifth element involves showing that the protected action was the dominant reason for the prohibited (Occupational Health and Safety Act 2004 s76(3))
  18. The accused bears the onus of showing that the reason alleged in the charge was not the dominant reason for the conduct (Occupational Health and Safety Act 2004 s77).
  19. There is no basis for reading in a word like “genuine” into the language of section 77, or requiring the jury to consider whether the alleged dominant reason was genuinely held by the accused (DPP v Acme Storage Pty Ltd [2017] VSCA 90 at [92]).

Last updated: 22 August 2018

In This Section

7.7.2.1 – Charge: Discrimination offence

7.7.2.2 – Checklist: Discrimination Offence

See Also

7.7 – Occupational Health and Safety

7.7.1 – Employer’s Duty to Employees and non-Employees