Can I be fired for reporting harassment at work?
Generally, your employer cannot lawfully fire you because you reported harassment at work. Australian law protects employees who raise workplace concerns. But the reason for a dismissal matters, so it helps to know what those protections cover and what to do if your job is at risk.
What counts as reporting harassment?
You might tell your manager that a co-worker keeps making sexual comments, report racist jokes to HR, or ask your employer to deal with repeated intimidating behaviour. You do not need to use legal language: a clear complaint or question about what is happening at work may be enough.
Under the Fair Work Act, employees have a workplace right to make a complaint or inquiry about their employment. An employer must not take adverse action against you because you exercise that right. Adverse action includes firing you, but it can also include cutting your shifts, demoting you or treating you differently in a way that harms your employment.
For example, if your roster is suddenly reduced because you complained about a supervisor’s conduct, that may be unlawful even if you have not been dismissed.
Does the type of harassment matter?
Different laws may apply depending on what happened. Sexual harassment and harassment linked to a protected characteristic—such as race, sex, disability or age—can raise issues under anti-discrimination laws. Employers also have work health and safety duties to manage risks to workers’ physical and psychological health, including risks associated with harassment and bullying.
Even when behaviour does not fit a particular legal definition, you can still raise a genuine concern about your working conditions. You do not have to wait until things become severe before speaking up.
Could I still lose my job after making a report?
Reporting harassment does not make someone immune from dismissal for an unrelated, lawful reason. An employer may, for instance, be able to dismiss an employee for serious misconduct or a genuine redundancy. The key question is whether the report was a reason for the decision.
Your employer may also investigate your complaint, including by speaking to the person you reported. That does not automatically mean you are being treated unfairly. An investigation should, however, be handled fairly, and your employer should take care to protect those involved from retaliation.
If you believe you have been dismissed because you complained, you may be able to make a general protections dismissal application to the Fair Work Commission. In some circumstances, an unfair dismissal application may also be available. Unfair dismissal looks at whether the dismissal was harsh, unjust or unreasonable, and has eligibility rules, including minimum employment periods. General protections claims do not generally require a minimum period of employment.
What should I do now?
- Keep a record. Note what happened, when, who was involved and who witnessed it. Save relevant messages and copies of your complaint, while respecting workplace rules about confidential information.
- Report the behaviour clearly. Check your workplace policy for reporting options. If your manager is involved, consider HR, another manager or a designated contact.
- Say what you need. This might include a change in seating, help avoiding contact with someone, or a plan for your safety while the complaint is investigated.
- Document any response. If your shifts change or you receive a warning after reporting, record the dates and ask for the reason in writing.
Act quickly if you are dismissed. Applications to the Fair Work Commission for general protections dismissal or unfair dismissal generally must be lodged within 21 days of the dismissal taking effect. Extensions are limited. A union, community legal centre or employment lawyer can help you work out which option fits your situation.
