DO I HAVE A CASE?

To lodge a complaint under either federal or state law the conduct must fall within:

• the definition of discrimination in the relevant legislation
• one of the grounds of discrimination specified in the relevant legislation
• an area specified in the relevant legislation.

DEFINITIONS OF DISCRIMINATIONS

There are two types of discrimination – direct and indirect.

Australian law generally defines direct discrimination to mean that a person is treated “less favourably” on the basis of an attribute that that person may possess (such as race or sex).

For example, where an employer denies a female job applicant a position simply because she is a woman, the woman is treated ‘less favourably’ than her male colleagues because of the attribute of being female.

Indirect discrimination occurs where policies or practices have a discriminatory effect because they affect different groups of people disproportionately.

For example, it would be indirect discrimination if an employer required job applicants to be above a certain height because fewer women than men would be able to meet these height requirements.

Indirect discrimination may be lawful where the policy or practice is genuinely reasonable in the circumstances. Therefore, it is often difficult and complex to prove indirect discrimination and we recommend that you seek legal advice if this is the basis of your complaint.

GROUNDS AND AREAS OF DISCRIMINATION

Your complaint should be on one of the grounds specified in the relevant legislation and must have occurred in one of the areas specified in the legislation. For example, the grounds under Victoria law include race, sex and disability and the areas include employment, education and accommodation. The Discrimination and Harassment Kit contains more information about the grounds and areas covered by federal and state laws.

DISCRIMINATION LAW

In Victoria a person who experiences discrimination or harassment or is subject to unfair dismissal from their employment may have rights under federal laws as well as under state law. However, you may only make a claim based on one law. It is important to be aware of the difference between the state and federal laws, to better understand where you stand.

For example:

• It can be more complex to get orders enforced under federal law.
• Under state law, complaints have to be made within six months, whereas under federal law you have up to twelve months
• It is possible to get more compensation under federal law
• State law does not apply in some circumstances, such as where the organisation you are making a complaint against is a federal government department.
• Some types of complaints are easier to prove under different laws.
• It may take longer to deal with a complaint lodged under state law.

MAKING A COMPLAINT

Regardless of which law you are affected by, all complaints are made to the Victorian Equal Opportunity Commission. Should your complaint be covered by a federal law, it will be sent to the Human Rights and Equal Opportunity Commission in Sydney automatically.

The process of making a complaint includes the following steps:

• Making a complaint in writing. In some cases you will have to fill in a "complaint” form.
• Investigation of your complaint by the Commission.
• Conciliation, that is, some attempt to have the parties agree on a solution.
• If no solution can be achieved through the conciliation process, the relevant tribunal will hold a hearing or inquiry.

The tribunal makes a decision about the matter and can:

• dismiss a complaint or
• find the complaint substantiated and make a number of orders such as an order that you be paid compensation.

The best way to ensure that your rights are protected is to consult an experienced professional who has a detailed knowledge of:

• Choosing the right law
• The documentation required, particularly if your complaint is referred to the VEOC
• What constitutes a satisfactory settlement.
• Presenting your case in the VEOC
• Appeals

FURTHER INFORMATION

This Information Outline is provided courtesy of McKean & Park Lawyers & Consultants who are experienced in this area of law. They are located at 405 Little Bourke Street MELBOURNE VIC 3000 or call them on (03) 9670 8822 if you would like more information on the legal topic, or you wish to obtain formal advice regarding your situation.

McKean & Park was established in 1863 by James McKean and thrives today with 20 professionals specifically in all major areas of practice including Workplace Relations and Anti-Discrimination Law. The firm is proud of the fact that many of its Lawyers are accredited specialists approved by the Law Institute of Victoria. McKean & Park is committed to providing clients with comprehensive and innovative legal services delivered promptly in a professional and cost effective way.