Which Court should I make my complaint about sexual harassment in?

Workplace sexual harassment is generally treated as part of discrimination law.  Under Australian law there are several different, and distinct avenue in which to bring a claim of workplace sexual harassment, or other unlawful discrimination.

These include state law, Commonwealth anti-discrimination law and the Fair Work Act, among others. Complaints can also often be made internally, and may also, in various circumstances give rise to an action for assault, or breach of contract.

Although there are similarities between each of the processes, it is important to clearly understand the processes and who can bring forth a claim. There are very clear positives and negatives (and not all are available to all people or in all circumstances). 

Segelov Taylor can provide advice and representation on the best option. 

Under State law 

Each state has different laws covering discrimination. For the purpose of this blog we refer to NSW. The law in other states has similarities (but also difference) to NSW. 

The primary anti-discrimination law in New South Wales is the Anti-Discrimination Act.  The Anti-Discrimination Act prohibits a very broad range of discrimination in employment, as well as in the provision of services and government action.  The specific protections provided by the Anti-Discrimination Act include protections against: 

• discrimination based on race and racial vilification 
• discrimination based on sex and sexual harassment 
• discrimination on transgender grounds and transgender vilification 

• discrimination on the grounds of disability 
• discrimination on the grounds of age and prohibition of compulsory retirement on the ground of age 
• discrimination on the grounds of homosexuality 
• discrimination on the grounds of a person’s responsibility as a carer 
• HIV/AIDS vilification. 

Claims must be commenced within 12 months of the date of the discrimination or other act complained of. 

Who Can Bring a Claim? 

All employees, along with potential employees and subcontractors are entitled to bring a claim under the Anti-Discrimination Act.   There is no threshold for a minimum period of employment or as to earnings. There may be some instances where claims cannot be brought under the state Act and must be brought under Commonwealth law. 

The Process 

The process for a claim under the Anti-Discrimination Act is generally: 

1. A complaint should be made to the Anti-Discrimination Board within 12 months of the action complained.   

1. The Anti-Discrimination Board will investigate the complaint and will arrange a mediation.  The mediation, which seeks a resolution of the complaint, generally occurs within three to six months of the complaint. 

1. If the mediation does not resolve the complaint, the complaint may be referred to the New South Wales Civil and Administrative Tribunal (NCAT). 

1. The matter will be listed for hearing within about 6 months of the referral from NCAT. 

1. The hearing will take place before three members of NCAT.   Witnesses will be cross examined and the NCAT members will decide as to whether discrimination has taken place, along with appropriate orders for compensation.  The compensation that may be ordered is limited to $100,000. 

Generally, each party pays their own costs although there is some capacity for orders to be made requiring one party to pay some or all the costs of the other side. 

Discrimination under Commonwealth anti-Discrimination laws  

There are series of Acts that prohibit discrimination under Commonwealth law.  These Acts are organised under the Australian Human Rights Commission Act.  The specific Acts include: 

• The Race Discrimination Act which prohibits racial discrimination and racial vilification; 

• The Sex Discrimination Act which prohibits sex discrimination and sexual harassment; 
• The Age Discrimination Act which prohibits age discrimination; 
• The Disability Discrimination Act which prohibits disability discrimination. 

The range of protections under Commonwealth law is more limited than under New South Wales law. 

The protections are also reproduced, at least in respect of direct discrimination, in the adverse action provisions of the Fair Work Act. 

Who Can Bring a Claim? 

Most employees, along with potential employees and subcontractors are entitled to bring a claim under the Australian Human Rights Commission Act.  Some state government employees are not entitled to bring a claim under the Commonwealth laws.  There is no threshold for a minimum period of employment or as to earnings. 

The Process 

The process for a claim under the Australian Human Rights Commission Act is generally: 

1. A complaint should be made to the Australian Human Rights Commission within 12 months of the action complained.  The Commission may elect not to accept a complaint made after that period. 

1. The Commission will investigate the complaint and will arrange a conference.  The conference, which seeks a resolution of the complaint, generally occurs within three to six months of the complaint. 

1. In the event the conference does not resolve the complaint, the complaint will be ‘terminated.’  The termination entitles the complaint to commence court proceedings. 

1. If the complaint elects to do this, proceedings can then be commenced in the Federal Circuit Court or Federal Court.  The proceedings must be commenced within 60 days of the date of the termination of the complaint by the Australian Human Rights Commission. 

1. The Court will list the matter for directions.  Orders will generally be made for the preparation of evidence, and generally, further mediation. 

1. The matter will be listed for hearing within about 6 months of the commencement of proceedings. 

1. The hearing will take place before a judge in the Federal Court or Federal Circuit Court.   Witnesses will be cross examined and the judge will decide as to whether discrimination has taken place, along with appropriate orders for compensation.  The compensation is uncapped. 

Generally, the losing party pays 50-70% of the successful party’s costs. 

Discrimination under the Fair Work Act  

Claims alleging discrimination are brought under the general protections provisions of the Fair Work Act, and are generally known as “adverse action” claims. 

Under the Fair Work Act, the prohibited reasons are extended from personal attributes (race, age, sex, etc.) to also include workplace rights and industrial rights. 

Adverse action claims involve allegations that a person has been treated unfairly (including by having their employment terminated) because of: 

• a prohibited reason such as sex, race, age; or 
• a person having exercised or proposed to exercise a workplace right; 
• a person having exercised or proposed to exercise an industrial right, such as joined or participated in union activities. 

Adverse action claims are more significant and costlier than unfair dismissal claims. Unlike unfair dismissal there is no cap on the amount of compensation that can be recovered, and compensation can be recovered, if appropriate, for pain and suffering. 

Adverse action claims must be commenced within 21 days of the termination of employment or 6 years if there is no allegation of termination. 

Who Can Bring a Claim? 

All employees (other than state government employees), along with potential employees and subcontractors are entitled to bring an adverse action claim. There is no threshold for a minimum period of employment or as to earnings. 

The Process 

The process for an adverse action claim differs depending on whether it involves the termination of employment. 

For claims involving termination: 

1. Within 21 days of the termination, proceedings must be commenced in the Fair Work Commission. 

1. Within about six weeks of filing the matter will be subject to a conciliation conference which will attempt find a negotiated resolution 

1. In the event there is no negotiated resolution, the Commission will issue a certificate. Following the certificate, the applicant can commence proceedings in the Federal Court or Federal Circuit Court. Alternatively, the parties can agree to have the matter dealt with by the Fair Work Commission. 

1. If the parties elect to have the matter be dealt with by the Fair Work Commission, the matter will be timetabled for hearing in a manner like that used for unfair dismissals. This timetable will allow for the preparation of statements by both the employee and employer, an outline of submission and potentially the production of documents. A hearing will occur before a member of the Fair Work Commission. Hearings generally take place about 3 to 6 months after the termination. 

1. If the applicant elects to commence proceedings in the Federal Circuit Court or Federal Court, the matter will be listed for directions. The directions will cover the preparation of pleadings, evidence, usually in affidavit form, and other steps.  Commonly, Orders for compulsory mediation will be made.  The matter will then be listed for trial. 

1. The trial in the matter will take place about twelve months after the termination.  Witnesses will be cross examined and the judge will decide as to whether adverse action has taken place and the appropriate orders for compensation, penalties etc, that may arise. 

David Taylor, Principal at Segelov Taylor Lawyers has an in-depth understanding of the discrimination process and can help you with your claim. If you believe you are being discriminated against, please get in touch by email david@segelovtaylor.com.au or by phone (02) 8880 0500.