It's understandable to feel upset and frustrated when you believe you've been unfairly passed over for a promotion. It's natural to question the reasons behind the decision, especially when it feels like discrimination might be involved. You deserve to have clarity and fairness in these situations, and I'm here to help you understand your rights and explore what options you might have.

Let me look up the most relevant information for your situation.

I understand you're concerned about potentially being overlooked for a promotion unfairly. Whether this constitutes discrimination depends on the specific circumstances and reasons behind the decision.

What constitutes workplace discrimination

The Fair Work Act prohibits an employer from taking adverse action against an employee or a prospective employee for discriminatory reasons. This protection covers situations where you're treated unfairly because of specific characteristics you possess.

Protected attributes under Australian law

You would have grounds for a discrimination claim if you were overlooked for promotion because of any of these protected attributes:

race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction, social origin, breastfeeding, gender identity, intersex status, experiencing family and domestic violence.

What adverse action looks like

Being passed over for promotion can constitute adverse action. Adverse action includes doing, threatening or organising any of the following: firing an employee, injuring the employee in their employment (for example, not giving an employee their legal entitlements, such as pay or leave), changing an employee's job to their disadvantage, treating an employee differently than others.

Real example from the workplace

The documents provide a clear example of promotion discrimination: Wendy's manager tells her that she didn't get the job because customers might not take her seriously as she is young and a woman. Wendy is being discriminated against because of her gender and age, which is prohibited under the Fair Work Act.

Key questions to consider

To determine if you have a discrimination case, consider:

• Were you given a reason for not getting the promotion?
• Do you believe the real reason relates to any of your protected attributes?
• Can you demonstrate you were qualified for the role?
• Were you treated differently from other candidates without a legitimate business reason?

Resolving the issue

If you believe discrimination occurred, start by raising this with your employer directly. Many workplace issues can be resolved through internal processes. However, if the matter isn't resolved internally or if you face retaliation for raising concerns, you could make a complaint with the Australian Human Rights Commission (AHRC). The AHRC accepts complaints about workplace discrimination covered by federal discrimination laws.

Your legal position

Simply being overlooked for promotion isn't automatically discrimination - employers can make promotion decisions based on legitimate business reasons like qualifications, experience, or performance. However, if the decision was influenced by any of your protected attributes, this would constitute unlawful workplace discrimination under the Fair Work Act.

The key is identifying whether there's evidence that your protected attributes played a role in the decision. If you can establish this connection, you have strong legal protections and avenues for recourse through both internal processes and external complaint mechanisms.

Now, here are some actionable steps you can take:

1. Reflect and Document:

   • Start by carefully reflecting on the situation. Ask yourself:
   • What was the reason given for not promoting you? Was it vague or specific?
   • Do you have any reason to believe that a protected attribute (like your age, gender, race, etc.) played a role in the decision?
   • Have you heard comments or observed behaviors that made you feel singled out or discriminated against?
   • Document everything. Keep a detailed record of events, conversations, emails, and any other relevant information. The more evidence you have, the stronger your position will be.

2. Review Company Policies:

   • Check your company's HR policies and procedures. Look for policies on promotions, equal opportunity, and anti-discrimination.
   • Familiarize yourself with the process the company is supposed to follow for promotions. Did they follow it? If not, that's important to note.

3. Seek Feedback:

   • Request a formal feedback session with your manager or HR.
   • Ask for specific reasons why you weren't selected for the promotion and what you can do to improve your chances in the future.
   • Take detailed notes during the feedback session. If possible, have a witness present or send a follow-up email confirming what was discussed.

4. Assess Your Qualifications and Performance:

   • Objectively assess your qualifications, skills, and performance against the requirements of the promotion.
   • Gather evidence of your achievements, positive feedback, and successful projects.
   • Compare your qualifications and performance to those of the person who was promoted. Were you equally or more qualified?

5. Consider Internal Options:

   • If you feel comfortable, discuss your concerns with a trusted HR representative or a senior manager.
   • They may be able to provide insights, mediate the situation, or initiate an internal investigation.

6. Seek External Advice:

   • Consult with a legal professional specializing in employment law. They can assess your situation, advise you on your legal rights, and help you determine the best course of action.
   • Contact the Fair Work Ombudsman or the Australian Human Rights Commission for information and guidance.

7. Consider Your Career Path:

   • Regardless of whether you pursue a discrimination claim, start thinking about your long-term career goals.
   • Are there other opportunities within the company that you could pursue?
   • Should you consider looking for a new job where you feel valued and have better opportunities for advancement?

Remember, it's essential to approach this situation strategically. Focus on gathering information, documenting everything, and seeking advice from trusted sources. Whether you decide to pursue a formal complaint or not, taking these steps will help you make informed decisions and protect your rights.