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DISCRIMINATION AND HARASSMENT

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 DISCRIMINATION

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).

An example of direct discrimination would be where an employer denies a female job applicant a position simply because she is a woman. In these circumstances 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.

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 ACT law include race, sex and disability and the areas include employment, education and accommodation. 

CHOOSING FEDERAL OR TERRITORY LAW

A person who has a complaint about discrimination or harassment may have rights under federal as well as territory law.

It may be possible to make a complaint under either a federal law or the ACT Discrimination Act. It is important to choose the right law under which to bring your complaint. A number of factors will be relevant to your decision. For example:

Whether the discrimination took place in the ACT or outside the ACT. If the discrimination took place outside the ACT the ACT Human Rights Office may not have jurisdiction to investigate your complaint.

Whether the complaint is against a Commonwealth Department or agency. The ACT Discrimination Act does not apply in some circumstances, such as where the organisation you are making a complaint against is a federal government department.

In some cases if you lodge your complaint in the wrong place you will not be permitted to lodge your complaint in a more appropriate place.

If your case goes to a hearing it is more likely that a costs order will be made in your favour if you win, or a costs order will be made against you if you lose, under Federal Law.

It may take longer to deal with a complaint lodged under federal law.

In order to determine whether you shall lodge your complaint under ACT law with the HRO or under Federal law with the HRE&OC you should first make inquiries with each office as to whether they could accept your complaint and the likely length of time it might take to resolve the complaint. The ACT law has strict guidelines in the Act about time taken to investigate complaints.

If you have been sacked from your job you may also have rights under Federal industrial law.

If you are uncertain about choosing the right law to make a complaint under we recommend that you:

  • Seek advice from the Human Rights Office or the Human Rights and Equal Opportunities Commission; or
  • Contact a solicitor for legal advice.

MAKING A COMPLAINT

Whether you make a complaint under state or federal law, the process is similar and usually involves the following steps:

  • Making a complaint in writing to the appropriate agency. For example, if proceeding under ACT Law you would set out you complaint in a letter to the Anti Discrimination Board. In some cases you will have to complete a complaint form.
  • Investigation of your complaint.
  • 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.

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