Resolving a Claim

Legal Resource

Resolving a Discrimination claim

Resolving a Discrimination Claim

AFT 9 September 2019

To resolve a complaint of discrimination in the workplace a complainant will ultimately need to be focused on what it is they are seeking as a remedy. For some people it is as simple as an apology or reinstatement to their former role with the employer. For others, it can be pursuit of compensatory damages to compensate for the pain, loss or humiliation they have suffered as a result of the discrimination.

Knowing what remedy is right for you can be tricky. Often when complainants seek legal advice they are so overwhelmed as a result of the alleged discrimination, that they cannot see clearly what they ultimately need or desire. Seeking professional legal advice is key in understanding what remedy is appropriate for your based on your factual circumstances.

The purpose of this article is to provide the reader with an awareness of the type of methods that can be applied at first instance to resolve a complaint, and also what type of orders can be made by a Tribunal if a complaint is the matter is still unresolved.

While I hope this may be helpful to anybody interested in knowing about resolving a discrimination claim, it is not intended to be and is certainly no substitute for legal advice. If you or someone you know needs advice or representation from an employment lawyer, our firm offers a free case assessment to see if we may be able to help in your case.

Human Rights Commission

The Australian Human Rights Commission (the “AHRC”) investigates complaints and may conciliate and resolve those complaints that have occurred under one the four (4) specific legislative instruments that cover anti-discrimination laws at a Commonwealth level being:

Age Discrimination Act 2004;

Disability Discrimination Act 1992;

Racial Discrimination Act 1975; and

Sex Discrimination Act 1984.

Further information about the Complaint Information Service can be obtained via the AHRC website. While the website provides useful tips on how to prepare for a conciliation, the AHRC encourages parties to undertake their own due diligence by obtaining independent legal advice. The site also provide published de-identified examples of matters that have previously been resolved by the AHRC. The AHRC promotes complaints being resolved on a ‘without admission of liability’ which means should parties reach an agreement, then it is done so without admitting to any wrongdoing, or fault.

Below provides some examples of matters resolved by the AHRC detailing the outcome or remedy that resolved the complaint.

Grounds

Grounds of discrimination: sex

In a 2017 before the AHRC a complainant had been dismissed by her employer following an internal complaint against the Manager in her workplace whom she had alleged sexual harassment. While the employer had cited termination on the grounds of poor performance, they affirmed that they had investigated the former employee’s complaint and had appropriately managed the complaint by removing the Manager from the workplace.

The AHRC successfully resolved the complaint with a a compensatory order of $30,000 made in favour of the former employee and importantly overturned the ‘termination’ to a ‘resignation’ and provided a statement of service.

In a further 2017 Conciliation before the Commission, a complainant claimed that her employer had discriminated against her on the grounds of sex and family responsibilities. While her employer suggested that the complainant had remained as a ‘casual employee’ with the business, the complaint was resolved by way of the parties agreeing to end the employment agreement, and the complainant receiving a Statement of Service and Statement of Regret along with $2,000 compensatory pay out for the distress she had experienced as a result of the termination.

Grounds of discrimination: pregnancy

A 2016 AHRC complaint saw a complainant who had been dismissed from her position shortly after she had told her employer of her impending pregnancy citing an ‘organisational restructure’. The complainant alleged being approached by the company about further work opportunities prior to disclosing her pregnancy.

While the former employer alleged that the redundancy was genuine, they agreed to provide the complainant with a written reference and a compensatory payout of $7,750.

A further example saw a 2014 decision where a complainant alleged her employer made her redundant whilst she was off on maternity leave. While the employer denied discriminating against the former employee, there was an agreement to conciliate the matter before the AHRC. The outcome resulted in the former employer providing the complainant with a statement of service, and statement of regret regarding the incidents that occurred as well as a compensatory payout of $6,000 in general damages to the complainant.

Grounds of discrimination: racial / national origin

In a 2012 complaint before the AHRC an Indian national origin was allegedly discriminated against by his supervisor and work colleagues by a series of derogatory comments made directly towards him including “don’t they teach you how to add up number in India”. The work colleagues further discriminated against him by not permitting him to voice his complaints during ‘team meetings’ based on their belief of his non-understanding of the English language. While the former employer had allegedly conducted workplace investigations of the comments in question, they concluded that there was not enough evidence to demonstrate that the comments made were racially discriminative against his national origin.

Ultimately, the AHRC aided a resolution of a $25,000 compensatory payout to the complainant by the former employee for compensate for loss suffered as a result of stress, anxiety and humiliation.

Related: Employment Law: Disciplinary ActionRelated: Employment Law: Disciplinary Action

Queensland Human Rights Commission

The Anti-Discrimination Act 1991 (Qld) statutorily defines the Queensland Human Rights Commission (the “QHRC”) functions to broadly include making inquiries into complaints and where possible, conciliate those complaint, to carrying out investigations regarding any contraventions of the Anti-Discrimination Act 1991 (Qld) to taking any action incidentally incurred as part of discharging the obligations when performing their role. They may accept any complaint made by the complainant, or an agent for the complainant providing that the complaint is made in writing, and that the complaint particularises the details of the contravention as well as stating their address, and also includes lodging the complaint directly to the QHRC.

Where an unfair agreement is made with a complainant, preventing them from making any complaints with the Commission, the Commission may exercise their discretion to investigate the complaint if they reasonably believe that it is fair to investigate the complaint. Therefore, any perceived unfair agreements not to complain, are essential not binding. However, if the Commission believes that the complaint is frivolous, trivial or vexatious or is misconceived or lacking in substance, the Commissioner must dismiss the complaint. Further, if the Commission are notified of the complainant pursuing action in another court or tribunal, then the Commission has the discretion to either reject or stay a complaint already being dealt with. And finally, the Commission has further powers to make binding directions to ensure anonymity of the complainant’s identity or any other party involved in the alleged investigation, is preserved.

Other points to note is that the time limit to make a complaint is within one (1) year of the alleged discrimination taking place, and once the application is received by the QHRC, the QHRC has a time limit of 28 days to either accept or reject any complaint made.

Should your application be rejected, the complainant may write to the QHRC asking for their reasoning for the rejection, however it must be done so within 28 days of receiving the notice of rejection. Should your application be accepted, then the QHRC must notify the alleged complainee of the complaint in writing, permitting the complainee to respond within 28 days detailing their response to the complaint.

It is worthy to note that should an application progress through to the second stage, being that of referral to a Tribunal, Orders may be made by the Commission to protect a complainant’s interests prior to conciliating the complaint, or making an order that the tribunal might make after a hearing. For example, the the type of Orders that are potentially possible include :

– Preserving a complainant’s job from compulsory retirement based on the complainant age ;or

– Prohibiting an employer transferring the compliant from her workplace ;or

– Prohibiting an employer to request a complainant undergo medical assessment, and/or terminating employment for failing to comply with the request ; or

– Prohibiting an employer to medically retire the compliant from the workplace .

In terms of resolving the complaint at the first stage, that is by way of a private conciliation conference conducted by the Commission. Attendance at conciliation conferences is compulsory. But what if a party does not take part in a conciliation conference? If a party does not participate without a reasonable excuse, then that party may be liable to pay for the complainants’ costs in bringing the application before the Commission. These costs are enforceable.

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How is a conciliation conference conducted in the QHRC?

All conciliation conferences are private which means that should any resolution occur at the conciliation, then they are also to remain private and confidential. They are also informal as well, which means that both parties will have an opportunity to speak, to listen and be actively involved in reaching a mutual resolution.

A ‘conciliator’ is appointed by the Commission and is tasked with coordinating and running the conciliation. Their role is to provide independent and unbiased assistance to both parties who are attempting to resolve a complaint. Essential they are there to assist the parties. They are not allowed to provide any legal assistance to either party, nor are they permitted to take sides. They also cannot tell you whether you should accept or decline an offer.

There are a variety of ways that a conference may be conducted, for example, the conciliator may offer to teleconference the parties, or all parties might meet at a specific location and to either attend in a face-to-face conference, or be in separate rooms with the conciliator moving back and forth between the separate rooms to achieve a result. This method is called ‘shuttle mediation’.

What a Conciliator might do during the conciliation is encouraging each party to explain what lead up to the complaint, and detail how it has affected them personally. Further, they may encourage the parties to elaborate on what actions they took or didn’t take and what offers that might be available to resolve the complaint. In the event that a complaint is successfully conciliated, the conciliator’s role is to assist the parties in writing a written agreement for all parties to sign. This agreement is binding, and enforceable.

In the event that the complaint is unsuccessful, then the complainant may ask for the conciliator to refer their matter to the next stage (Stage Two) in the matter being heard by a Tribunal for a public hearing. Depending on the nature of the complaint, it may be referred to the Queensland Industrial Relations Commission (if work-related) or to the Queensland Civil and Administrative Tribunal (all other complaints).

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What outcomes can the QHRC Achieve?

There are examples where the QHRC, like the AHRC may publish decisions of conciliations listing what outcomes have been achieved by the parties. While the Commission conducts private and confidential conciliations, there are avenues for a brief summary of the decision to be published on the QHRC website in the form of a ‘case study’. The matters are de-identified and aim to preserve anonymity of the parties.

The type of case studies that are published include all attributes prohibited from discrimination as listed in section 7 of the Anti-discrimination Act 1991 (Qld) to include:

(a) sex;

(b) relationship status;

(c) pregnancy;

(d) parental status;

(e) breastfeeding;

(f) age;

(g) race;

(h) impairment;

(i) religious belief or religious activity;

(j) political belief or activity;

(k) trade union activity;

(l) lawful sexual activity;

(m) gender identity;

(n) sexuality;

(o) family responsibilities;

(p) association with, or relation to, a person identified on the basis of any of the above attributes.

In addition to the above, the QHRC also have a number of other forms of case studies such as Aboriginal and Torres Strait Island case studies; and victimisation case studies the provide a useful guide on previous conciliation decisions and outcomes that have been achieved by the Commission.

Aboriginal and Torres Strait island (Case Studies)

In an undated, example of an Aboriginal and Torres Strait Island case study before the Commission, the Commission saw an Aboriginal Woman pursue a claim against a local hotel that she had interviewed for, but was unsuccessful in obtaining an administrative role. The complainant alleged that when she arrived for the interview, the interviewer was ‘surprised’ of her cultural identity. The complainant alleged that despite having a glowing CV and references provided, the hotel did not employer her. The complainant alleged racial discrimination on the grounds of race due to the way the prospective employer behaved at the interview. The outcome of the conciliation resulted in financial compensation of $1,000 for the hurt and humiliation she had experiences as well as a written apology, and a further agreement for the employer to reference Equal Employment Opportunity reference in any future recruitment advertisements.

Victimisation (Case Studies)

A further undated example of a victimisation case study before the Commission, female complainant’s solicitor lodged a complaint on grounds of victimisation and discrimination on the ground of pregnancy. Here, the employer had repeatedly told the pregnant employer to ‘finish work’ soon and that due to a company restructure, her position would be unavailable after the birth of her child. The complainant became aware of documentation that discussed how to terminate an employee who is taking maternity leave. When the complainant notified the employer of the documentation, the employer launched an investigation into how the complainant had found the documentation in the employer’s office.

In this example, the Commission provided an ‘informal conciliation’ process as there was an offer of employment reinstatement to the complainant. However, the complainant believed that it would be an intolerable situation to return to and preferred to rescind the offer. The employer agreed to the complainant’s counteroffer, as well as paying all legal costs incurred by the complainant, as well as a further compensatory order of $3,500 to compensate the compliant for the distress, pain and suffering experienced.

As highlighted above, you might find yourself in a situation where both parties are unable to reach a resolution to the complaint. In accordance with the Anti-Discrimination Act 1991 (Qld) a complainant has a right to seek referral to a tribunal after a conciliation conference. Normally any work-related matter is referred to the Queensland Industrial Relations Commission and all other complaints referred to the Queensland Civil and Administrative Tribunal. A time limit of 28 days is required to notify the Communication of the unconciliated complaint and intention to pursue a referral to Tribunal to resolve the matter.

Forum for resolution of complaint

The Anti-Discrimination Act 1991 (Qld) (the “Act”) provides clarity in definition the functions and powers of both the Queensland Civil and Administrative Tribunal (“QCAT”) and the Queensland Industrial Relations Commission (“QIRC”).

The type of Orders that either of the Tribunals may make if a complaint is proven is highlighted in section 209 of the Anti-discrimination Act 1991 (Qld) to be:

(a) an order requiring the respondent not to commit a further contravention of the Act against the complainant or another person specified in the order;

(b) an order requiring the respondent to pay to the complainant or another person, within a specified period, an amount the tribunal considers appropriate as compensation for loss or ‘damage’ caused by the contravention;

(c) an order requiring the respondent to do specified things to redress loss or ‘damage’ suffered by the complainant and another person because of the contravention;

(d) an order requiring the respondent to make a private apology or retraction;

(e) an order requiring the respondent to make a public apology or retraction by publishing the apology or retraction in the way, and in the form, stated in the order;

(f) an order requiring the respondent to implement programs to eliminate unlawful discrimination;

(g) an order requiring a party to pay interest on an amount of compensation;

(h) an order declaring void all or part of an agreement made in connection with a contravention of this Act, either from the time the agreement was made or subsequently.

In defining ‘damage’ the Act states that an order of this kind is in relation to a person who suffers ‘embarrassment, humiliation and intimidation’ as a result of the offence committed by the complainee.

Further, the types of actions that the Tribunal may ask a respondent to do including:

(a) Employing, reinstating or re-employing a person or

(b) Promoting a person; or

(c) Moving a person to a specified person within a specified time.

In a 2017 decision before QCAT where a complainant sought relief on the grounds of alleged discrimination in the form of sexual harassing detrimental acts set up by co-workers had the intention or effect of humiliating the complainant at his workplace. QCAT noted the previous attempts made before the then Anti-discrimination Queensland Queensland (now Queensland Human Rights Commission) which was unsuccessful, and then upon an application by the complainant received a referral to the Tribunal, namely QCAT. When the complainant finally became aware of the acts in the workplace being nothing more than a ‘prank’ and that other work colleagues in the workplace were aware of the alleged ‘prank’ the complainant suffered acute anxiety and PTSD as confirmed from a medial diagnosis.

In determining what Order was appropriate to make, the Tribunal was satisfied that in determining a financial order, one could be made to compensate for non-financial losses, that is the ‘pain and suffering and loss of enjoyment of life’ as well as financial loss for compensation of actual financial loss and future financial loss. In reaching their determination, the Court considered the 2014 decision of Richardson which affirmed that the community standards had increased in determining what is an appropriate level of compensation for pain, suffering and loss of enjoyment of life than before. The value placed on the Community had increased from a previous compensatory pay out for non-financial losses of $18,000 to $100,00. In ascertaining what an appropriate level of compensatory damages in this matter, the Tribunal also gave regard to other similar decision finalised in other State and Territory Tribunals being that of:

Discrimination Cases (disability):

– The 2015 decision before the Federal Circuit Court of Australia – involved a complaint of discrimination against disability in employment resulting in exacerbation of the complainant pre-existing clinical depression which resulted in a compensatory non-financial loss award of $75,000;

– The 2015 decision before the Victorian Civil and Administrative Tribunal (“VCAT”) where a complainant was discriminated against due to a disability – while there was no psychological injury reportedly suffered by the complainant, there were feelings of anger, frustration and stigmatisation because of her disability. This resulted in a compensatory non-financial loss award of $15,000;

Discrimination cases (sexual orientation)

– The 2015 decision before the Anti-Discrimination Tribunal of Tasmania where a complaint was directly discriminated against by way of sexual orientation and sexual harassment and as a result suffered anxiety attacks, nightmares as well as depression and loss of body weight. Here a compensatory order for non-financial loss was awarded to the complainant by the tribunal of $25,000;

Discrimination case (victimisation):

– The 2015 decision before New South Wales Civil and Administrative Tribunal the complainant was denied a loss of promotion in the police office and consequently suffered medical intervention to cope with declining emotional health, here the Tribunal awarded a non-financial loss of $70,000 to compensate the complainant

Discrimination case (sexual harassment):

– In another 2015 decision before VCAT a complainant suffered shock, embarrassment and humiliation resulting from sexual harassment of a direct supervisor which caused the complainant to resign due to suffering severe diagnosed psychological injuries. Here the Tribunal awarded $180,000 for non-financial losses, plus $20,000 in aggravated damages;

Discrimination case (political opinion):

– The 2016 decision before the Act Civil and Administrative Tribunal a complainant was left feeling ostracised, depressed, anxious and humiliated suffering from a chronic adjustment disorder when the complainant was denied membership of a club because of his political beliefs. This resulted in a compensatory non-financial loss award of $30,000.

Ultimately, the Tribunal awarded a total compensatory amount of $156,051 to compensate for non-financial losses, past loss of earnings (including superannuation) as well as future loss of earnings (including superannuation) and any other future costs of treatment. The Tribunal also ordered that a ‘non publication order’ be made under section 191 of the Anti-Discrimination Act 1991 (Qld) to protect the anonymity of the complainant, and other parties involved in the matter.

Summary

Hopefully by now you have a broader understanding of methods of resolving a complaint of discrimination. While I find that it is informative for readers to be aware of compensatory damages that might be achievable for non-financial losses, it is not always an appropriate remedy to seek in all circumstances. Each case should be examined on its merits.

Should you find yourself in a position where you believe you have been discriminated against in your workplace and need some assistance in navigating the best outcome for your personal needs, contact Anderson Fredericks Turner today.

More Information

The information contained on this page is general in nature and specific advice ought to be obtained from a lawyer before acting on any general information with respect to any legal matter.

Anderson Fredericks Turner has lawyers across Queensland who can provide specific advice with respect to issues involving employment law, including for issues relating to discrimination. Our lawyers operate from local offices in Brisbane, Beenleigh, Maroochydore, Southport, Townsville, although we have the capacity to advise and represent people nationally.

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