Assistance and making a complaint
Sex Discrimination
The decision of where to bring a complaint is a complex one and legal advice should be sought. It can depend on several factors like the time it will take for a complaint to be dealt with, time limits on lodging the complaint and the range of remedies or relief that are available if the matter has to go to court.
The following organisations may be able to provide assistance and advice:
- National Legal Aid: http://www.nationallegalaid.org/
- National Association of CLC’s: https://clcs.org.au/legal-help/
- Australian Council of Trade Unions: http://www.actu.org.au
- Women’s Legal Service: http://www.wlsa.org.au/members
The below provides general information on the main organisations, claims and remedies. It is not a substitute for legal advice and it is recommended that advice is sought before any particular action is taken:
Australian Human Rights Commission
Link
https://www.humanrights.gov.au
Role
The Commission’s National Information Service provides employers and employees with information about their obligations and rights under the Sex Discrimination Act.
A key role of the Commission is to investigate and conciliate complaints of discrimination, including under the Sex Discrimination Act.
The Commission is not a court and cannot decide if discrimination has happened. The Commission’s role is to get both sides of the story and help those involved try to resolve the complaint.
Claims that can be brought
The Sex Discrimination Act makes it against the law to treat an employee less favourably or disadvantage the employee because of their:
- sex
- pregnancy or potential pregnancy
- family responsibilities
- breastfeeding or
- marital or relationship status.
Examples of acts which may be discriminatory include:
- not hiring someone because they are pregnant or have family responsibilities
- not returning an employee who has taken parental leave to a position with the same status, tasks and responsibilities
- unreasonably refusing to accommodate a request to work part-time
- making negative remarks about an employee’s need to breastfeed
Almost all employees, including casuals and contract workers, are covered under the Sex Discrimination Act.
Time limits for lodging an application
Complaints should generally be lodged within 12 months of the alleged act of discrimination
Possible outcomes (these will depend largely on the individual circumstances of each complaint)
Generally, when a complaint is received, the Commission will tell the employer about the complaint and give the employer a copy of the complaint. Where appropriate, the Commission will invite the parties to participate in conciliation.
Conciliation is an informal process that allows those involved in the complaint to talk about the issues in the complaint and try to find a way to resolve the matter. There is a wide range of outcomes that can be agreed, such as training on anti-discrimination, apology and financial compensation.
If the complaint cannot be resolved or is terminated for some other reason, such as that the complaint is lacking in substance or has already been adequately dealt with, the complainant has the option of making an application to the Federal Circuit Court of Australia or the Federal Court of Australia. The Court can determine if discrimination has happened.
The Court has a wide range of powers to made orders if it finds there has been unlawful discrimination.
This can include:
- orders to employ or re-employ the applicant
- orders to pay damages
- orders to vary the termination of a contract.
Factors to consider
There is no cost in making a complaint to the Commission.
The Commission is not an advocate for the complainant or the employer.
A complainant under the Sex Discrimination Act cannot go straight to court – a complaint must be lodged with the Commission first.
At Court, a complainant must be able to show less favourable treatment against a comparison employee (direct discrimination) or that a condition has been imposed which is unreasonable in all the circumstances, and which disadvantages the employee because of their sex/pregnancy/family responsibilities (indirect discrimination). The onus of proof is on the complainant to prove the case. The employer bears the onus of proving that a condition is reasonable.
If a complainant succeeds at Court they generally would have any legal costs paid. If they are unsuccessful they may have to pay the legal costs of the employer.
There is no cap on the damages that can be awarded, and both economic loss (lost wages, out of pocket expenses) and non-economic loss (damages for hurt and suffering) can be claimed.
Fair Work Ombudsman
Link
Role
The Fair Work Ombudsman (FWO) help employers and employees understand their rights and responsibilities at work. FWO works with employees, employers and the community to educate and encourage compliance with Australia’s workplace laws.
The FWO can investigate suspected breaches of workplace laws.
Claims that can be brought
An individual can make a request for assistance to the FWO if they believe the Fair Work Act has not been complied with.
The FWO can help the parties to resolve the issue or choose to investigate.
The FWO can also seek information from employers, either voluntarily or by issuing notices, and can enter into enforceable undertakings to rectify breaches.
If the FWO thinks proceedings should be commenced against an employer, it can seek orders that include the imposition of a penalty. It must start those proceedings in the Federal Circuit Court or Federal Court.
Time limits for lodging an application
Can take action with respect to breaches that happened up to 6 years ago
Possible outcomes (these will depend largely on the individual circumstances of each complaint)
Once a request for assistance is made, the focus of the FWO is on early intervention and resolution of workplace issues through the provision of advice and support.
In responding to a request for assistance, the FWO may offer a mediation service, issue a compliance notice, or seek enforceable undertakings or a compliance partnership from the employer. Enforceable undertakings and partnerships can include a wider range of remedies than a court could order, and could include commitments to changing policies and practices, as well as paying back-pay and contrition payments
In cases of serious non-compliance, the FWO may choose to conduct an investigation or inquiry. If the FWO decides to prosecute, it can seek the imposition of a penalty. The Court can also impose any orders it considers appropriate including orders granting an injunction to stop conduct, award compensation for loss, or make orders for reinstatement.
Factors to consider
Once a request for assistance is made, the process is largely determined by the FWO.
You cannot compel the FWO to investigate or to bring a prosecution. It has a compliance and enforcement policy and a litigation policy, and it does not investigate or prosecute every case. It must consider whether it is in the public interest to do so.
If proceedings are commenced, you will be a witness, not a party to those proceedings, so they are largely out of your control.
You may not receive any direct financial compensation as a result of requesting assistance from the FWO.
There is no cost to you in making a request for assistance.
Fair Work Commission
Link
Role
Role includes:
- determining unfair dismissal applications
- the first step in resolving unlawful termination claims, general protection/adverse action claims (such as discrimination) – including termination and complaints about conduct during employment, can determine general protection/adverse action claims involving dismissal by arbitration (subject to consent)
- making orders to stop bullying at work.
Claims that can be brought
Unfair dismissal
Unlawful termination – a limited claim for employees not covered by the General Protections provisions – mainly State public servants.
General Protections/adverse action claims that involve either dismissal, or actions other than dismissal
Anti-bullying applications
Time limits for lodging an application
An application for unfair dismissal, unlawful termination or a general protections/ adverse action involving termination must be lodged within 21 calendar days after the dismissal took place.
There is no time limit for claims not involving dismissal, but the general time limit for matters involving an allegation of breach of the Fair Work Act is 6 years.
Possible outcomes (these will depend largely on the individual circumstances of each complaint)
The primary remedy in an unfair dismissal claim is reinstatement, or compensation if reinstatement is not practicable
In a general protections/adverse action matter involving dismissal or unlawful termination, if the FWC hears the matter by arbitration it can make orders that include reinstatement, compensation, lost remuneration and maintaining continuity of service. If the matter is heard by a court, the orders are wide, but along similar lines.
Both of these types of applications cannot vary the terms of a job (ie make a full-time role part-time or vary duties) unless the parties reach agreement on that matter privately.
In an anti-bullying application the FWC may make any order (other than the payment of money) to prevent the employee from being bullied.
Factors to consider
Not every employee is eligible to bring an unfair dismissal claim – you should check eligibility with the Fair Work Commission. In an unfair dismissal claim there is a cap on damages of 6 months remuneration, and no compensation for hurt feelings or distress.
The applicant in an unfair dismissal claim must prove that the action as harsh, unjust and unreasonable.
With a General Protections/ Adverse Action claim involving dismissal, the FWC must convene a private conference with the parties to see if the matter can be resolved. If it cannot, the parties can agree to have it arbitrated by the FWC, or the applicant can elect to go the Federal Circuit Court or Federal Court to have it heard.
If the application does not involve dismissal, the FWC can hold a conference, but only if both parties agree. The applicant can then choose to proceed with Court action.
The onus of proof is on the respondent to show that the action complained of was not taken for the alleged particular reason or with that intent. This can assist applicants particularly in discrimination matters.
Often when matters get to the Court stage there is an additional mediation step to try and assist parties to resolve the issues by agreement.
As with any agreement, the parties can always reach terms that are wider than what the FWC or Court can impose.
Parties usually pay their own legal costs in any FWC proceeding and related Court proceedings even if they are successful. There are some exceptions if parties have acted unreasonably.
This can leave parties out of pocket if the damages awarded do not exceed the costs incurred, or if a respondent defends a matter successfully.
As a general rule, conferences occur usually within 4 – 6 weeks of lodging an application. Once finished at the FWC, Court proceedings need to be initiated within set time frames, and the time it takes to conclude any litigation can vary significantly.
You must still be employed to bring an application to stop bullying. You cannot bring this after you have been terminated, and the FWC cannot order compensation.
ACT Human Rights Commission
Link
Role
Deals with complaints under the Discrimination Act 1991 (ACT)
Claims that can be brought
Discrimination and/or harassment under theDiscrimination Act 1991 (ACT)
Time limits for lodging an application
Complaints must generally be lodged within two years of the events complained about (with some exceptions)
Possible outcomes (these will depend largely on the individual circumstances of each complaint)
The ACT Human Rights Commission generally aims to assist parties to resolve the complaint through conciliation. Common outcomes from successful conciliations include reinstatement or compensation, apologies, change in policy or arrangements.
Factors to consider
If a complaint is not able to be conciliated or is otherwise closed by the Commission, the complainant has the right to have the matter referred to the ACT Civil and Administrative Tribunal for determination.
NSW: Anti-Discrimination Board of New South Wales
Role
Roles include:
- promoting anti-discrimination and equal employment opportunity) principles and policies throughout NSW
- preventing discrimination from occurring
- Informing people about their rights and responsibilities under anti-discrimination law, and explaining how they can prevent and address discrimination
Claims that can be brought
Discrimination and harassment based on sex which includes pregnancy and breastfeeding in the area of employment, provision of goods and services, state education, the provisions of accommodation and registered clubs.
Also it is unlawful to victimise a person because they have complained about discrimination or helped someone with a discrimination complaint. A victimisation complaint may be up held even if the original discrimination complaint is not.
Time limits for lodging an application
The President of the Anti-Discrimination board of NSW may decline a complaint if the whole or part of the conduct complained of occurred more than 12 months before making the making of the complaint.
Possible outcomes (these will depend largely on the individual circumstances of each complaint)
If after an investigation the complaint appears to involve a breach of anti-discrimination law, and it has not yet been resolved, the board helps to conciliate the complaint. The Board assists the parties to come to an agreement or settlement that will resolve it.
Many complaints are resolved through conciliation, but this can only occur if both parties agree on a settlement. The board is impartial and does not have the power to impose a settlement if the parties do not agree. If the parties do reach agreement, they often sign a written agreement, which is a legally enforceable document.
Examples of settlements include:
An apology, reinstatement of the complainant, the complainant being provided with benefits, facilities or services that were denied.
Training for staff in the respondent organisation about discrimination, and/or developing or improving existing policies.
The respondent paying compensation to the complainant or some other form of compensation such as a donation to charity.
Factors to consider
If a complaint cannot be conciliated, and in certain other cases, it will be referred to the New South Wales Civil and Administrative Tribunal (NCAT) which reviews administrative decisions made by NSW Government agencies and resolves discrimination matters. Remedies available at NCAT include: ordering compensation (currently $100,000).
Prohibiting discriminatory conduct in the future, ordering the publication of an apology, and ordering the development of programs or policies aimed at eliminating discrimination and declaring that discriminatory contracts are unenforceable.
NT: Northern Territory Anti-Discrimination Commission
Link
Role
Deals with complaints under the Anti-Discrimination Act 1996 (NT)
Claims that can be brought
Complaints about discrimination and harassment based on an attribute; and complaints, about failure to reasonably accommodate a special need based on an attribute. Relevant attributes are:
- pregnancy
- breastfeeding
- marital status
- parenthood
- association with someone who has an attribute (e.g. parent of a child with a disability)
Time limits for lodging an application
12 months
Possible outcomes (these will depend largely on the individual circumstances of each complaint)
A confidential settlement following a conciliation conference. Outcomes may include compensation, apology, workplace policy, discrimination training.
Factors to consider
The Commission is based in Darwin. It aims to get matters listed for conciliation within 6 weeks of receiving a complaint.
The Commission has the ability to prioritise matters where a party has lost their job or the allegations raise other issues of urgency.
The Commission is happy to speak to parties prior to lodging a complaint so they can get more information about the process.
Interpreters (including Auslan interpreters) can be made available.
There is no cost to use the service.
QLD: Anti-Discrimination Commission Queensland
Link
Role
The Anti-Discrimination Commission Queensland (ADCQ) tries to resolve complaints of discrimination, sexual harassment, vilification, victimisation and unnecessary requests for information in they come within the Anti-Discrimination Act 1991. The ADCQ uses conciliation to try to resolve complaints and will write up any agreement reached so that it can be signed by all parties and filed in the QCAT. If the complaint cannot be resolved, the complaint can choose to refer the complaint to QCAT for a public hearing.
Claims that can be brought
A complaint must be in writing and set out details of a possible breach of the Anti-Discrimination Act 1991such as discrimination on the basis of one of the 16 attributes (including sex, pregnancy, family responsibilities, breastfeeding, relationship status, impairment, race, religion, sexuality) and in the areas of public life covered (including in work, goods and services, State laws and programs, accommodation and education); sexual harassment; vilification; victimisation; and being asked unnecessary question on which discrimination may be based.
Time limits for lodging an application
Complaints must generally be lodged within 12 months of the events complained about (with some exceptions)
Possible outcomes (these will depend largely on the individual circumstances of each complaint)
The Commission will try to resolve the complaint through conciliation. If any agreement is reached the Commission will write it up and have the parties sign and it is then enforceable as a court order. An agreement can an include any outcome the parties agree on including an apology, a work reference, financial compensation, changes to work policy and training for staff.
Factors to consider
The process involves at least 1 conciliation step at the ADCQ, and usually a second opportunity to mediate if the matter goes to the Queensland Civil and Administrative Tribunal.
Parties are usually given a date for conciliation within 6 weeks of the ADCQ accepting the complaint.
Parties are encouraged to reach agreement to resolve the complaint and if so, this finalises the complaint.
Parties do not need a lawyer in conciliation and any representative must seek the ADCQ’s permission to attend.
A complainant must be able to show less favourable treatment against a comparison employee (direct discrimination) or that a condition has been imposed which is unreasonable in all the circumstances, and which is harder to comply with because of sex/pregnancy/family responsibilities (indirect) . The onus of proof is on the complainant to prove the case
There are no costs orders at the ADCQ nor usually in QCAT.
There is no cap on the compensation that can be awarded, and both economic loss (lost wages, out of pocket expenses) and non-economic loss (compensation for hurt and suffering) can be claimed.
South Australian Equal Opportunity Commission
Link
Role
Deals with complaints under the Equal Opportunity Act 1984 (SA)
Claims that can be brought
Discrimination under the Equal Opportunity Act 1984 (SA).
Discrimination on the basis of:
- Pregnancy
- Caring Responsibilities
- Association with a child
- Sex
- Disability (cases where women are not able to work unless they are 100% fit with regard to issues such as morning sickness have been registered as disability complaints.
Time limits for lodging an application
12 months from when the act of discrimination happened. In certain circumstances, late complaints may also be accepted.
Possible outcomes (these will depend largely on the individual circumstances of each complaint)
Conciliation conference resulting in a confidential agreement. Often this includes an apology, financial compensation (injury to feeling, job prospects), change in policy and training.
Unresolved complaints are referred to the South Australian Equal Opportunity Tribunal.
Factors to consider
The Commission can prioritise complaints with ongoing employment and also to accommodate the birth of a child.
TAS: Tasmanian Office of the Anti-Discrimination Commissioner
Role
Deals with complaints under the Anti-Discrimination Act 1998 (Tas)
Claims that can be brought
Discrimination on the basis of:
- Pregnancy
- Breastfeeding
- Parental status
- Family responsibilities
- Gender
- Disability
Time limits for lodging an application
12 months after the alleged discrimination or prohibited conduct took place.
Commissioner may accept a complaint after the time limit has expired if it is reasonable to do so.
Possible outcomes (these will depend largely on the individual circumstances of each complaint)
The Commissioner is to attempt to resolve complaints by conciliation at an early stage. Conciliation may be undertaken either before, during or after the investigation of the complaint. If the complaint is not resolved, further investigation may be undertaken and parties may be directed to take part in a further conciliation. Conciliation Agreements are binding and confidential and may include an apology, financial compensation, training, change of policy or procedures, re-instatement of employment or any other condition considered appropriate.
Unresolved complaints may be referred to the Anti-Discrimination Tribunal.
Factors to consider
The Commissioner has 42 days from the date the complaint is lodged to decide whether the complaint discloses possible breaches of the Act and should be accepted. Decisions are reviewable.
VIC: Victorian Equal Opportunity & Human Rights Commission
Link
http://www.humanrightscommission.vic.gov.au
Role
Independent statutory body with responsibilities under, for example, the Equal Opportunity Act 2010
Complaints to the Commission under the Equal Opportunity Act 2010 are resolved through a confidential dispute resolution process, which encourages workers and employers to reach a mutually satisfactory outcome.
Claims that can be brought
Allegations of discrimination (direct and indirect) in an area of public life due to one of 17 personal characteristics (attributes) protected by the Equal Opportunity Act 2010. This includes: sex, parental and carer status, pregnancy, breastfeeding, marital status and disability.
Allegations that an employer has unreasonably refused to accommodate the responsibilities that an employee has as a parent or carer. (There is also a right to request flexible working arrangements under the Fair Work Act).
Allegations of sexual harassment and/or victimisation.
Time limits for lodging an application
The Commission may decline to provide dispute resolution if it has been over 12 months since the alleged contravention took place.
Possible outcomes (these will depend largely on the individual circumstances of each complaint)
The Commission’s dispute resolution service is free, flexible, timely and fair. Settlement Agreements are binding and confidential and may include an apology, financial compensation, training, changing of policy / procedure, reinstatement of employment or any other condition that may be appropriate. Unresolved complaints may still be brought to the Victorian Civil and Administrative Tribunal (VCAT).
Factors to consider
In Victoria, under the Equal Opportunity Act an employer must not refuse flexible arrangements for an employee with parental or carer responsibilities unless it is reasonable to do so in the circumstances.
A person can make a direct application to VCAT in relation to a complaint of discrimination, sexual harassment and/or victimisation.
Employers also have a duty to take reasonable and proportionate measures to eliminate discrimination, sexual harassment and victimisation as far as possible.
WA: Western Australian Equal Opportunity Commission
Link
Role
Roles include;
- promoting equality of opportunity through community information and education
- investigating and attempting to conciliate allegations of discrimination on the grounds and areas of the Equal Opportunity Act 1984.
Claims that can be brought
Allegations, in writing, of discrimination on the grounds and relevant areas set out in the Equal Opportunity Act 1984. The relevant grounds are: breastfeeding, family responsibility, family status, marital status, pregnancy, and sex.
Time limits for lodging an application
The incident or incidents must have occurred with the 12 months previous to the date of lodgement of the complaint. In some circumstances, the Commissioner may rule there is good cause to include incidents that occurred more than 12 months before the complaint form is lodged.
Possible outcomes (these will depend largely on the individual circumstances of each complaint)
Conciliation conference resulting in a confidential agreement, which can include any elements the parties agree on: such as apology, reinstatement, monetary compensation, provision of goods or services, access to facilities, equal opportunity training and policy changes.
The complaint may also be dismissed, withdrawn or lapsed, and in some circumstances referred to the State Administrative Tribunal.
Factors to consider
To be accepted, a complaint must include a ground and relevant area of the Act. Not all areas are applicable in every ground.
The onus of proof is on the complainant.
State and Territory work health and safety Authorities.
Role
In relation to work health and safety -education, assistance, compliance, investigations, enforcement and prosecutions.
Further information about each Authority and their contact details is available on the Safe Work Australia website: https://www.safeworkaustralia.gov.au/
Claims that can be brought
Not applicable - concerns about work health and safety issues (including alleged discrimination for raising safety issues at the workplace) may be raised with the relevant Authority.
Time limits for lodging an application
Not applicable.
Possible outcomes (these will depend largely on the individual circumstances of each complaint)
- Providing advice and information.
- Monitoring and enforcing compliance with work health and safety laws.
- Fostering co-operative, consultative relationships between duty holders and the persons to whom they owe duties and their representatives.
- Sharing information with other regulators.
- Conducting and defending proceedings under work health and safety laws.
Factors to consider
Not applicable.
The relevant Authorities and Departments of Public Prosecution are responsible for prosecuting alleged offences under work health and safety laws.