Discrimination

A. What is discrimination?

Federal, State and Territory legislation prohibits direct and indirect discrimination on a number of grounds as well as sexual harassment. Legislation also prohibits victimisation and vilification.

Most complaints of discrimination occur in a work context. The basic rule is that employers may not unlawfully discriminate in the arrangements made for offering employment, the selection of employees, or the terms and conditions of employment offered. Once an employment relationship exists, it is unlawful for an employer to discriminate on the basis of any of the prescribed grounds or attributes in the terms or conditions of employment, by denying access to promotion or other benefits (such as training), by subjecting an employee to any other detriment, or by subjecting an employee to less favourable working conditions resulting in harassment.

There may be an exemption from these requirements in limited circumstances, particularly where the nature of the role has some particular requirement. It is also necessary for employers to make clear to employees and contractors that they are also bound by this legislation as the employer can be held liable for the actions of their workers.

Complaints about discrimination can be made either to the state Anti-Discrimination Commissions or to the federal Human Rights Commission. The following comments primarily reflect the provisions of the Queensland anti discrimination legislation but the federal legislation and other state legislation is similar in effect.

The Anti-Discrimination Act 1991 (Qld) says it is against the law to treat a person unfairly for reasons including:

  • sex
  • marital status
  • relationship or parental status
  • race
  • religious belief or activity
  • political belief or activity
  • impairment/disability
  • trade union activity
  • lawful sexual activity
  • pregnancy
  • breastfeeding needs
  • family responsibilities
  • gender identity
  • sexuality
  • age

It is also a breach of the legislation to treat a person unfairly because of their association with someone from one of these groups. For example, if you have to leave a café because your breastfeeding friend has been asked to leave, it is unlawful, and you, as well as your friend, could lodge a complaint with this Commission.

The legislation applies in the areas of:

  • work and work related areas including pre-work;
  • education;
  • the provision of goods and services;
  • superannuation;
  • insurance;
  • disposition of land;
  • accommodation;
  • club membership and affairs;
  • administration of state laws and programs; and
  • local government.

By way of example, discrimination comes within the legislation if a person is treated unfairly when they:

  • apply for a job, or try to get into a course;
  • are at work, school, college or university;
  • buy things in shops, hotels etc;
  • rent a flat, house, caravan or motel room;
  • apply for credit or a loan;
  • use any business, trade or professional services;
  • use services provided by your city or shire council or the state government;
  • deal with superannuation or insurance companies;
  • buy land.

In order to lodge a complaint with the Commission or the HRC, it is generally necessary for a person to show that they were treated badly or unlawfully on one of the grounds (e.g. race) and in one of the areas (e.g. at work) and also demonstrate how they were affected by it.

Not all discrimination is against the law. No matter how unfair the treatment is, it must be covered by the legislation before a complaint can be lodged with the Commission. For example, the Commission could not deal with a complaint if a person was treated unfairly because of their physical appearance or because of bullying in the workplace, unless these can be related to an attribute such as race or sex.

Complaints of discrimination must be lodged with the Commission within 12 months of the incident occurring. If the matter cannot be resolved by conciliation, then the complainant can choose to refer their complaint to the next level where the complaint is heard through a judicial process.

B. What is direct and indirect discrimination?

Direct discrimination occurs if a person treats someone else less favourably than they would another person in comparable circumstances because of, for instance, age or race.

Indirect discrimination involves imposing a requirement, condition or practice that appears fair and neutral but can only be complied with by a higher proportion of people without the attribute or personal characteristic. The question is whether the issue is likely to have a proportionately different or worse impact on a particular class of persons.

Most unfair treatment is clear, for instance not getting a job because a person is told they are too old, or not being able to rent a flat because you and your partner aren’t married, but sometimes it is less obvious. Sometimes, a policy or rule seems fair because it applies to everyone, but a closer look shows that some people are being treated unfairly. For example, an employer might have a policy of not letting staff work part-time. This policy could impact unfairly on people who have children and can’t work full-time, and may be against the law. This is called indirect discrimination, and is against the law, where it can be shown that the rule isn’t reasonable in all the details of the case.

AGE DISCRIMINATION – TEACHING OLD DOGS NEW TRICKS

Lightning Bolt Co Pty Ltd v Skinner & Anor

The Queensland Court of Appeal has dismissed an appeal by an employer and confirmed an Anti-Discrimination Tribunal decision which found that the employer had dismissed two employees on the basis of their age and contravened s136 of the Anti-Discrimination Act 1991 (Qld). The facts were that the employer had hired the complainants as storemen for a period of approximately three months, before dismissing them both in March 2000 on the basis that there was insufficient work due to a down turn in trade. In April 2000 one of the two complainants became aware that two younger employees had filled their previous positions. The complainants had their matter referred to the Tribunal by the Anti-Discrimination Commissioner on 8 December 2000. The employer argued that there had been a downturn in the business which meant there was not enough work to retain the complainant’s services and the terminations were decided on a “last employed, first out basis”.

However, the Tribunal found that there was no lack of work for the respondents at the time of their dismissal and the loss of business from a major customer did not give rise to a need to reduce the number of storemen employed, nor any need for cost-cutting. There was evidence the employer decided employ storemen who could later be trained as salespeople. The Tribunal accepted that the substantial reason for the respondents dismissal was their age, in contravention of the legislation. The employer was ordered to pay one complainant $72,582 and the other complainant $8,906. The Court of Appeal rejected the arguments on appeal that the Tribunal had failed to give adequate reasons and that there was insufficient evidence to ground the finding of discrimination and the appeal was dismissed with costs.

C. Sexual harassment

Sexual harassment is any unwelcome sexual attention that is offensive in some way. It is against the law whenever and wherever it happens. Under the Queensland legislation, sexual harassment occurs if a person:

  1. subjects another person to an unsolicited act of physical intimacy;
  2. makes an unsolicited demand or request (whether directly or by implication) for sexual favours from the other person;
  3. makes a remark with sexual connotations relating to the other person; or
  4. engages in any other unwelcome conduct of a sexual nature in relation to the other person;

AND the person engaging in the conduct does so either:

  1. with the intention of offending, humiliating or intimidating the other person; or
  2. in circumstances where a reasonable person would have anticipated the possibility that the other person would be offended, humiliated or intimidated by the conduct.

CASE EXAMPLE

ANTI DISCRIMINATION TRIBUNAL AWARDS $40 000 FOR SEXUAL HARASSMENT

Lang v. NuttAnti-Discrimination Tribunal Queensland

The complainant, who had been a marketing assistant with the Palm Beach Surf Lifesaving Club Supporters’ Club Inc, alleged that she had been subjected to sexual harassment by the General Manager during her employment for some 2.5 years. She claimed she had been subjected to unsolicited demands for sexual favours, comments with sexual connotations relating to her, other unwelcome conduct of a sexual nature and an unsolicited act of physical intimacy, namely kissing on the lips and on the head.

The Tribunal found that although there had been a level of sexual banter and innuendo engaged in by both parties, none of that amounted to solicitation or encouragement for the conduct which occurred. The Tribunal was of the view that it would have been obvious to Mr Nutt that his advances were unwelcome and that he was attempting to use a position of influence over Ms Lang to persuade her to engage in consensual sexual activity with him. The Tribunal also considered that whilst Ms Lang’s reaction to the events resulted from her special susceptibility to anxiety or panic attacks, this did not excuse the respondent or diminish his responsibility for the consequences of his actions. The Tribunal applied the “eggshell skull” rule that just because Ms Lang might have a special susceptibility did not mean that the compensation she should receive should be reduced.

The Tribunal considered an award of $15 000 for general compensation was appropriate together with interest. The Tribunal found that Ms Lang was probably capable of performing paid work from the time she left the Club’s employment but the respondent had not sought to show that there was any employment available to her that she should have undertaken. In any event, the Tribunal considered that Ms Lang would have had difficulty obtaining employment given her depressed state. The Tribunal awarded $24 700 for past economic loss being the equivalent of 1 year’s nett income, making a total award of $40 505.

D. Complaint process

Please note the information set out below is of a general nature only and it is not intended to replace legal advice about any specific claim. The Anti-Discrimination Commission Queensland (“Commission”) has been established to handle complaints under the Anti-Discrimination Act 1991 (Qld) (“Act”) and the Queensland Civil and Administrative Tribunal hears complaints that are unable to be resolved at the Commission stage. Similar provisions exist under federal legislation and are dealt with by the Human Rights Commission and federal courts. This section contains practical information about procedure in the Commission. Procedure in the federal jurisdiction is similar although there are some differences. Further information is available on the website of the Anti-Discrimination Commission Queensland – www.adcq.qld.gov.au or the Human Rights Commission website – www.hrc.gov.au.

It is important at the outset to remember that there is no general law against all discrimination. It is necessary for any complaint to be brought within the scope of the applicable legislation. In brief, state and federal legislation contains prohibitions on specific forms of direct and indirect discrimination (such as age, sex, religious belief or activity) in specific areas (such as work and the provision of accommodation). In addition, there is a general prohibition on sexual harassment and vilification. In this section, the word “discrimination” is used to refer to all forms of conduct prohibited by the legislation.

E. Process in the Anti-Discrimination Commission Queensland

1. Making a complaint

The Commission seeks to resolve complaints through a process of conciliation between the parties. If this process is unsuccessful, then the person making the complaint can choose to refer their complaint to the Queensland Civil and Administrative Tribunal (“QCAT”). QCAT is like a court and a judicial process is adopted ending ultimately in a formal hearing and a decision by the Tribunal which has the force of law.

The first step is to seek to resolve any complaint informally with the person/s or body you believe responsible for the discrimination. If this is not successful, then a formal complaint can be lodged with the Commission. The complaint must be in writing and signed and a complaint form is available from the Commission website – www.adcq.qld.gov.au. A complainant should ask any witnesses to provide written statements setting out their recollections and observations. There is no need to provide these documents to the Commission at this stage.

Complaints must be lodged with the Commission within 12 months of the incident or conduct comprising the discrimination complained about occurring. An extension of time may be granted for out of time complaints if a reasonable explanation for the delay can be provided.

The Commission will firstly satisfy itself that the complaint meets the threshold requirements of the Act and may ask for further information. The Commission will then convene a conference of the parties to try and resolve the complaint. The respondent may provide a written response prior to the conference but is not required to do so.

2. Conciliation conference

Conferences are normally held at the Commission’s premises with the parties attending in person. However, sometimes conferences may be held by telephone with conciliators who are located in another town. Conferences are conducted by a conciliator who will seek to resolve the complaint by discussion between the parties. Three hours are generally set aside for each conference.

If representing yourself, you should let the Commission staff know that you are there for a conference on your arrival. If you are legally represented, arrangements will normally be made to meet your solicitor beforehand. You will then be taken to a room and the conciliator will outline the rules for conduct of the conference to you. The most important requirement is that anything raised at the conference and any offers of settlement must be kept confidential and may not be used in later proceedings. Each party should be allowed to speak without interruption even if you don’t agree with what is being said and language should be kept polite.

You will then be taken into the main conference room. You and your legal representative (if you have one) will sit on one side of a table, the respondent/s and their legal representative (if they have one) will sit on the other side of the table and the conciliator will sit at the head of the table. The conciliator will confirm that it is not their role to make a judgment or to take sides but rather to seek a resolution of the complaint by informal means. You will be asked to confirm your agreement to keep all matters raised at the conference confidential. The conciliator will ask you to provide an outline of your complaint. Where you have legal representation, the conciliator may allow your legal representative to provide this outline but it is a matter for the conciliator’s discretion and the practice varies between conciliators. Some conciliators will require the complainant or respondent to provide the outline even where they have a solicitor.

The outline involves setting out the main facts of the complaint, how these facts constitute discrimination under the legislation and the emotional feelings and loss and damage suffered as a result of the discrimination. Even where a legal representative gives this outline, the conciliator will ask the complainant if they would like to add anything. It is your complaint and you should feel free to take the opportunity to add anything you consider to be worthwhile. It is helpful for the respondent/s to hear from you in person and gauge your truthfulness. The respondent/s will then be allowed to respond to the complaint. Where the respondent/s have a legal representative, that representative will generally be allowed to provide the response although each of the respondents will also be asked if they wish to add anything personally.

It is quite common for the version of events given by the complainant and respondents to vary significantly or indeed be completely different. This can be distressing for the parties but is normal at this early stage of proceedings. You can take a break if you feel you need to.

The conciliator will provide the complainant with an opportunity to respond to what has been said by the respondents and may offer the parties the opportunity to confer with their legal representative away from the other party. Normally, the complainant and their representative go outside the conference room to a separate room to confer. The conciliator will come and have a talk to both the complainant and respondent about what has been said. The conciliator may then ask the complainant to return to the main conference room and tell the respondents what they would like to resolve the complaint. Sometimes the conciliator will not require the complainant to return to the main conference room but will convey any offer they wish to make to the respondent/s.

It is uncommon for first offers by both the complainant and respondent to be accepted and you should be prepared to negotiate if you wish to resolve the complaint at the Commission conference. A complainant should consider whether they are prepared to accept an amount less than may be awarded if successful in the Tribunal in order to resolve the matter at the conference stage without the need for lengthy, potentially expensive and emotionally traumatic proceedings in the Tribunal. It is also quite common for respondent/s to reject all offers of settlement at this initial conference and the complainant will then need to decide if they want to proceed to the next stage of proceedings.

If a settlement is reached then the respondent/s will normally require a document formalising the settlement to be prepared and signed by each of the parties. Commonly called a “release and discharge”, this document may be prepared by the Commission or by the respondent/s. It will normally record that the complainant provides the respondent/s with a release from all claims or actions the complainant may have against them in exchange for the provision of things such as an apology, undertaking and/or compensation. It will also normally require the settlement to be kept confidential and also that each party not make adverse comments about the other.

A discharge constitutes a final settlement of a complaint and it is not generally possible for either party to change their mind once a discharge has been signed. Accordingly, each party should give careful thought to their decision before accepting any settlement. Any settlement will occur on a “without prejudice” and confidential basis. This means that there is no formal admission of liability by the respondent and that neither party can tell anyone else the terms of settlement

3. Remedies

Both parties should give thought to how they would like to resolve the complaint prior to coming to the conference. It is common for a complainant to ask for:

  • An apology, whether public or private;
  • An undertaking that the respondent/s will attend a course in anti-discrimination conducted by the Commission or a private service provider; and
  • Monetary compensation.

It is up to the complainant to determine what they would like to obtain to satisfy their complaint. Sometimes, an apology or statement of regret will be sufficient for the complainant. This is a highly personal decision. However, whilst it is commonplace to seek an apology and the undertaking of training, the major remedy is usually monetary compensation.

The aim of any compensation is to place the complainant, as much as possible, in the position they would have been if the discrimination had not taken place. Monetary compensation can comprise a number of elements:

The first element is “general damages” which is a payment to compensate a complainant for hurt feelings and the pain and suffering they have gone through as a result of the discrimination. There is no fixed formula for general damages and the amount of any general damages will depend on the facts of each case. Your legal representative will be able to give advice about a range of general damages appropriate to your case and assistance can be gained from previous decisions of the Tribunal.

In addition to general damages, compensation can also be claimed for any loss of income suffered by a complainant both to the date of the conference and subsequently if they are likely to continue to suffer loss of income in the future. Compensation can also be claimed for any medical expenses which the complainant has incurred or is likely to incur in the future.

Of course, any amount claimed will be affected by the factual strength of a case and practical factors such as how committed the parties are to pursuing litigation. Your legal representative will discuss these matters with you prior to the conference so that a position can be put to the other party at the conference.

4. What happens if the complaint is not resolved at the conference?

If the complaint cannot be resolved at the conciliation conference and it is unlikely that further negotiations will resolve the matter, then the conciliator will declare the complaint unconciliable and give the complainant up to 28 days to decide whether they wish to refer their complaint to QCAT.

This is an important decision to make because QCAT proceedings require a large commitment of time and energy by both parties and there may be costs consequences if the Tribunal rules against either party after a hearing. Tribunal proceedings can take up to 12 months or longer before a decision is made and it is possible for the losing party to appeal on points of law. No matter how good a complainant or respondent thinks their case is, there is potentially a long battle ahead.