578Civil proceedings relating to discriminatory conduct

578 Civil proceedings relating to discriminatory conduct (1) For the purposes of this section, an employer engages in ***discriminatory conduct*** if the employer— (a) dismisses, or threatens to dismiss, a worker from employment; or (b) alters, or threatens to alter, the position of a worker to the worker's detriment; or (c) treats a worker less favourably than another worker in relation to promotion or re‑employment. (2) Conduct referred to in subsection (1) is engaged in for a ***prohibited reason*** if a substantial reason is because the worker— (a) has given the employer or any other employer notice of an injury; or (b) has taken steps to pursue a claim for compensation against the employer or any other employer; or (c) has given, or attempted to give, a claim for compensation to the employer or any other employer, the Authority or a self-insurer; or (3) For the purposes of this section, a prospective employer engages in ***discriminatory conduct*** if the prospective employer— (a) refuses or fails to offer employment to an applicant for employment; or (b) in offering, or refusing to offer, terms of employment, treats an applicant for employment less favourably than another applicant for employment. (4) Conduct referred to in subsection (3) is engaged in for a ***prohibited reason*** if a substantial reason is because the applicant for employment— (a) has given an employer notice of an injury; or (b) has taken steps to pursue a claim for compensation against an employer; or (c) has given or attempted to give a claim for compensation to an employer, the Authority or a self-insurer; or (5) A worker or an applicant for employment may apply to the Industrial Division of the Magistrates' Court for an order under this section in relation to an employer or a prospective employer who has engaged in discriminatory conduct for a prohibited reason. (6) An application referred to in subsection (5) must be made not more than one year after the date on which the discriminatory conduct occurred. (7) In a proceeding under this section, if all the facts constituting the discriminatory conduct are proved, the employer or prospective employer bears the burden of adducing evidence that the reason alleged in the proceeding was not a substantial reason for the conduct. (8) It is a defence to a proceeding under this section if the employer or prospective employer proves that— (a) the relevant conduct was necessary to comply with the requirements of this Act, the **Accident Compensation Act 1985**, the **Workers Compensation Act 1958** or the **Occupational Health and Safety Act 2004**; or (b) the worker or applicant for employment was unable to perform the inherent requirements of the employment even if the employer or prospective employer made reasonable adjustments to those requirements; or (c) the worker was engaged in fraud or dishonesty in relation to, or associated with, the giving of notice of the injury or pursuit of the claim for compensation. (9) The Industrial Division of the Magistrates' Court may make one or more of the following orders in relation to an employer or prospective employer who has engaged in discriminatory conduct for a prohibited reason— (a) an order that the employer or prospective employer pay (within a specified period) to the worker or applicant for employment such damages as the court considers appropriate to compensate the worker or applicant for hurt and humiliation as a result of the discriminatory conduct; (b) an order that the employer or prospective employer pay the worker or applicant an amount not exceeding the remuneration that— (i) in the case of a worker, but for the discriminatory conduct, the worker would have received from that employer during the 12 months immediately after the discriminatory conduct was engaged in; (ii) in the case of an applicant for employment, the applicant would have received if the applicant had been employed by that prospective employer for a period not exceeding 12 months from the day on which the applicant made the application for employment; (c) an order that— (i) the worker be reinstated or re‑employed in the worker's former position or, if that position is not available, in a similar position; or (ii) the worker or applicant for employment be employed in the position for which the worker or applicant had applied or a similar position. (10) In making any order under this section, the court must take into account any compensation or damages received by the worker in respect of any injury to which the discriminatory conduct relates. (11) Each party to a proceeding under this section is to bear its own costs in the proceeding unless the court determines that it is fair that a party pay all or a specified part of the costs of another party.