7.7.2.2 – Checklist: Discrimination Offence

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This offence consists of five elements:

1. The accused was an employer; and

2. The complainant was an employee of the accused; and

3. The complainant was engaged in protected conduct; and

4. The accused took action against the complainant; and

5. The dominant reason the accused took that action was because the complainant engaged in protected conduct.

Accused as an Employer

1. Has the prosecution proved that the accused was an employer?

If yes, then go to 2

If no, then the accused is not guilty of discriminating against an employee

Complainant as an Employee

2. Has the prosecution proved that the complainant was an employee of the accused?

If yes, then go to 3

If no, then the accused is not guilty of discriminating against an employee

Protected conduct

3. Has the prosecution proved that the complainant engaged in protected conduct?

Consider – In this case, protected conduct is [identify relevant form of protected conduct].

If yes, then go to 4

If no, then the accused is not guilty of discriminating against an employee

Action against complainant

4. Has the prosecution proved that the accused took action against the complainant?

Consider – In this case, taking action against the complainant means [identify relevant form of adverse conduct]?

If yes, then go to 5

If no, then the accused is not guilty of discriminating against an employee

Dominant reason

5. Has the accused proved that the complainant’s protected conduct was not the dominant reason for taking action against the complainant?

Consider – The standard of proof for this element is ‘the balance of probabilities’, which means ‘more likely than not’.

Consider – The dominant reason is the main, or most influential, reason.

If yes, then the accused is not guilty of discriminating against an employee

If no, then the accused is guilty of discriminating against an employee (provided you have answered yes to questions 1, 2, 3 and 4)

Last updated: 22 August 2018

See Also

7.7.2 – Discrimination offence

7.7.2.1 – Charge: Discrimination offence