Complaint assessment

Complaint assessment

A complaint is made to the Anti-Discrimination Commissioner.

The complaint is assessed against the Anti-Discrimination Act 1998 and the Anti-Discrimination Commissioner determines whether the complaint can be dealt with under the Act ('accepted') or is outside the scope of the Act ('rejected').

If the complaint is rejected, the Commissioner writes to the person who made the complaint (who is called the 'complainant') telling them of the decision and the reasons the complaint has been rejected. The complainant is also told about their right to have that decision reviewed by the Anti-Discrimination Tribunal and how to ask for a review.

Notifying those involved of the complaint

The person or organisation that the complaint is about (who is called the 'respondent') is generally only contacted if and when the Commissioner has decided the complaint can be dealt with under the Act. That is when the complainant/s and respondent/s are sent a letter telling them the complaint is being dealt with and why, and providing a copy of the complaint and a summary of it.

Meeting to try to resolve the complaint

They will usually also be asked to come to a conciliation conference, which is a meeting to talk about resolving the complaint. If they reach an agreement at the meeting, the complaint will end with the agreement.

Investigation of the complaint

Investigation of the complaint

If the complaint is going to be dealt with, the investigation process starts. This will include letters and documents to and from the complainant/s and respondent/s as well as others who might have relevant evidence in the form of documents and witness statements.

The Commissioner has 6 months to complete the investigation. If the investigation can't be finished in that time, she can ask the complainant to agree to her having more time.

At the end of the investigation there are 3 possible outcomes:

  1. the complaint is dismissed
  2. there is a further attempt to resolve the complaint through conciliation
  3. the complaint is referred to the Anti-Discrimination Tribunal for it to hold an inquiry

Complaint dismissed

If the complaint is dismissed, the Commissioner writes to the complainant/s and the respondent/s to tell them this decision and to give them the reasons for the decision. Those letters also tell the parties that the complainant has a right to ask the Tribunal to review the decision.

If a further conciliation process happens, but the complaint cannot be resolved, the Commissioner must then send the complaint to the Tribunal for it to hold an inquiry.

Providing information or documents (s 97)

Providing information or documents (s97)

If the Commissioner forms the view that a party or another person or organisation has information or documents relevant to the situation being investigated, the Commissioner may require the person to provide the information or documents using section 97 of the Anti-Discrimination Act 1998.

If the person refuses to do so 'without reasonable excuse' the person can be fined.

Section 97 of the Act says:

Information and documents

97.

(1)  The Tribunal, Commissioner or an authorised person may require any person to provide specified documents that the Tribunal, Commissioner or authorised person believes may be relevant to the complaint.

(2) A requirement is to be -

(a) in writing; and
(b) served on the relevant person.

(3) The Tribunal, What is a section 97 Notice?

A 'Section 97 Notice' is issued under section 97 of the Act.

If this happens, you will receive a letter from the Commissioner asking for 'specified information' or 'specified documents' (or both) under section 97.  The Commissioner's letter will enclose a copy of section 97 from the Act.

This means that you are obliged by law to answer the Commissioner's questions or provide relevant documents, unless you have a reasonable excuse for not doing so.

Withdrawing a complaint

Withdrawing a complaint

The Anti-Discrimination Act 1998 (the Act) says that a complainant can apply to the Commissioner to withdraw his/her complaint at any stage of the complaint process.  If the Commissioner is satisfied that the application was made voluntarily, the withdrawal will be granted.  This means that the complaint comes to an end and the file is closed unless the Commissioner decides it is in the public interest to continue to investigate the situation.

Applying to withdraw

If a complainant wants to withdraw his or her complaint, they need to notify the Commissioner in writing and give their reasons for wanting to withdraw.  It is important to put these reasons in writing to be sure that the reasons are accurately recorded.

There are various reasons why a complainant may wish to withdraw his or her complaint.  These reasons may include the following:

  • The situation has been resolved;
  • The complainant has moved on and no longer wishes to proceed with the complaint;
  • The complainant does not want to pursue the complaint for personal reasons, eg, health reasons;
  • The complainant has agreed to withdraw the complaint as part of a settlement under another law – for example, worker's compensation.

Example of voluntary withdrawal:

Brandon lodges a complaint against a service provider.  His complaint is also investigated internally by the service provider and amendments are made to its service policies.  Brandon is satisfied with these changes and applies to withdraw his complaint.  The Commissioner accepts his reasons for withdrawal and the complaint is closed.

Granting a withdrawal

If the Commissioner is satisfied that the application to withdraw has been made voluntarily, then the Commissioner grants the withdrawal and records the terms of any agreement reached between the complainant and the respondent/s.  If no agreement has been reached, then the Commissioner simply grants the withdrawal and notifies the parties.  If the complaint is withdrawn before it is accepted for investigation, and the respondent/s have not been notified of the complaint, a letter confirming the withdrawal goes to the complainant only.  In each case the file is then closed.

Pressure to withdraw

The Commissioner can investigate what led a complainant to make an application to withdraw the complaint.  This is because people should not be pressured or threatened into withdrawing their complaint.

Threats could be made or pressure applied to the complainant by the respondent or by a person connected with the respondent who knows about the complaint.  Threats or pressure could be made directly to the complainant, or to a person associated with the complainant.

Example of pressure to withdraw:

Alice works at a business with her uncle, Fred.  Alice makes a complaint of sexual harassment against her boss, Carlos.  Alice applies to have her complaint withdrawn because Carlos has told Fred he will be sacked if Alice does not withdraw her complaint.

If the Commissioner is satisfied that the complaint was not withdrawn voluntarily, the investigation of the complaint may continue.  The Commissioner may also continue to investigate the complaint if it is in the public interest to do so.

As well, withdrawal of a complaint does not prevent the Minister of Justice from referring the complaint to the Tribunal for inquiry.

If a complainant is pressured or threatened to withdraw a complaint, this could amount to victimisation under the Act.  The complainant would have a right to make a fresh complaint of being victimised.

Representation

Representation

Parties involved in a complaint with Equal Opportunity Tasmania can choose at any time to be represented by a lawyer or advocate during the complaint handling process.

During the investigation

  • You need to apply in writing to the Commissioner for 'authorisation' or 'permission' to be represented during the investigation process of a complaint.
  • The Commissioner will deal with the lawyer or advocate and all letters will be sent to the lawyer or advocate and not the party.
  • It is the responsiblity of the lawyer/advocate to keep the party informed.

At dispute resolutions

Representation requests may be granted once a formal request has been made in writing to the Commissioner or by completing an application form.  You can request representation or to have an accompanying person attend.

A representative is a person who speaks on behalf of the complainant or respondent and therefore has 'speaking rights'.

An 'accompanying person' is a support person. They have no speaking rights during the resolution unless during the process both complainant and respondent agree that the accompanying person may speak.

Legal advice

At any stage of the complaint process you can obtain legal advice, at your own expense, from a lawyer or advocate, without having to get authorisation or permission from the Commissioner.  The person obtaining legal advice does not need to tell the Commissioner that they have obtained the advice, for it is everyone's right to do so.

Companies, corporations or departments

If a company, corporation or department has been named as a respondent to a complaint, no 'permission' or 'authorisation' is needed for a person in authority, with the powers to negotiate a settlement, to speak on behalf of the company.

If the company wishes to be represented by a lawyer or advocate during the investigation or resolution process they must seek approval from the Commissioner.

Dispute resolution meetings

Dispute resolution meetings

A Conciliation Conference is a private and confidential meeting between the person or people who made the complaint (the complainant/s) and those who the complaint was made about (the respondent/s).

Conciliation Conferences:

  • is an opportunity to speak frankly and openly about the situation complained about;
  • is an opportunity to explore ways of resolving the complaint;
  • is an opportunity for the complainant/s and respondent/s to have some control of the how the complaint can be resolved.

Conciliation Conferences are not an opportunity for arguing the case or making legal submissions.

Because a conciliation conference gives the complainant and respondent the opportunity to discuss how the complaint might be resolved, it means they can:

  • reach agreement without going to the Tribunal or court
  • resolve the complaint confidentially and cost-effectively
  • bring the dispute to an end, fully and finally

At the Conciliation Conference

  • The complainant/s and respondent/s are given an opportunity to talk about the issues raised in the complaint.
  • They do not present their 'case' as if they are in a court or tribunal hearing.
  • They will not be ordered to agree to anything. It is up to them to decide if they can agree on an outcome.

Rules applied at conciliation conferences

Fairness: each participant has time and opportunity to share their view of the situation

Courtesy: participants must treat one another with respect and courtesy

Constructiveness: participants are expected to be constructive and not obstructive

Confidentiality: what is said is not for discussion outside the conciliation conference. It is a confidential process.

Person running the conciliation conference

The person running the meeting is called the conciliator.  It is their job to:

  • chair the meeting and keep it on track
  • explain the purpose and process of dispute resolution through conciliation to the people at the meeting
  • help the people at the meeting to explore ways to resolve the complaint
  • make sure everyone at the meeting is treated fairly throughout the process
  • make sure the complainant/s and respondent/s have time to explain their position

The conciliator is impartial and cannot give legal advice.  They do not decide what the outcome of the complaint should be.

They can explain what the Anti-Discrimination Act says about particular situations and how it has been interpreted in previous complaints.

Where will the conciliation conference be held?

Generally the conciliation conference is held in the Conference room at Equal Opportunity Tasmania, in Hobart.

If the participants are in another part of Tasmania (or outside Tasmania), the conciliation may be held in Launceston or Devonport, for example.

Sometimes the Commissioner will allow a person to participate in the conciliation conference by telephone conference.

Attending the conciliation

The Commissioner has the power to order people to come to a conciliation conference.

  • A person who is ordered to come to a conciliation conference, must do so. There can be a penalty for not attending.
  • If there is a good reason a person cannot come to the conciliation conference at the time, date or place scheduled, they can ask for it to be changed or to take part by phone.

These people may be asked or required to come to a conciliation conference:

  • Complainant/s: the person or people who made the complaint
  • Respondent/s: the person, people, or organisation against whom the complaint was made
  • Other people who may be able to help the parties to understand or resolve the complaint

Representation or support at the conciliation

  • A person who is attending the conciliation conference as a party can ask the Commissioner for permission to have a representative or a support person come with them
  • A person may use an interpreter at a conciliation conference. Equal Opportunity Tasmania will pay the costs of the interpreter.
  • If a company, business or department is a party to the complaint and required to participate in a conciliation, they must have someone attend the meeting on their behalf and that person must have the authority needed to agree on any resolution

Confidentiality

Conciliation Conferences are held in private.

Everything said, written or done in the Conciliation is confidential.

If agreement is reached to resolve the complaint, the parties can decide whether the details of the resolution are to be kept confidential.

This means that, other than any agreement reached, what is said, written or done in the conciliation conference must not be spoken about or written about outside the meeting and cannot to be taken into account in any later legal proceeding held in relation to the complaint.

This is important because it means the people at the conciliation conference can feel comfortable and confident to talk about the issues, and propose ways to resolve the complaint, without fear of those discussions being used against them later.

If the conciliation is done by written correspondence or with the parties in separate rooms, the confidentiality rule still applies.

Resolving the complaint

The complainant/s and respondent/s are asked to think about how the complaint might be resolved before participating in the conciliation process.

They are asked to think carefully and creatively about what they think is a fair and reasonable outcome.

The kind of outcomes that are identified as suitable generally depend on the nature of the complaint.  For example, if the complaint is about work issues, the complainant may, for example, want a written apology, a reference from the employer, anti-discrimination training for managers/supervisors and staff of the employer.

Agreement

If the parties reach an agreement on how to resolve the complaint, that agreement is legally binding and everyone involved must do what they have agreed to do.

To make sure that everyone remembers what was agreed, the conciliator will make a written record of the agreement and the parties will be asked to sign it. Once it is signed, the parties will be given a copy of the agreement, and the signed original will be kept on the Commissioner's file for the complaint.

An agreement is enforceable as if it were an order made by the Tribunal.

If someone doesn't do what they promised, the other party can ask the Supreme Court to enforce the agreement, or can ask the Commissioner to apply to the Supreme Court for this to happen.

Costs

Conciliation is a free service provided by the Anti-Discrimination Commissioner.

Everyone coming to a conciliation conference must pay their own travel and meal costs, etc, and any legal fees if they are legally represented.

No agreement reached

If the conciliation conference does not result in an agreement on how to resolve the complaint, there may be further investigation by the Commissioner's investigator, or the complaint may be referred to the Anti-Discrimination Tribunal for Inquiry.

Investigations

Investigations

The investigation process commences immediately after the complaint lodged has been accepted by the Commissioner.  This means that possible breaches have been identified under the Anti-Discrimination Act 1998.

The following is an overview of the usual investigation process:

  1. The Commissioner sends a copy and a summary of the complaint to the complainant and the named respondent and/or named organisation for their response. The Commissioner will ask the parties at this stage if they want to meet to try to resolve the complaint.

  2. The respondent's response is received and sent to the complainant for their reply.

  3. The complainant's reply is received and the Investigation Officer assigned to the complaint assesses the documents and identifies what further investigation is needed, such as collecting documentary evidence and witness statements.

  4. When the investigation process is complete the Commissioner determines whether the complaint should be dismissed, proceed to conciliation or referred directly to the Anti-Discrimination Tribunal.

There is no charge for having a complaint investigated or conciliated, unless you seek legal representation.

Rights and obligations

Rights and obligations

Each party to a complaint has certain rights and obligations to ensure the complaint process is handled fairly and within reasonable time-frames.

Complainants and respondents should remember that Equal Opportunity Tasmania is an impartial body required to investigate complaints of discrimination and prohibited conduct under the Anti-Discrimination Act 1998 (the Act).

Complainant's responsibilities

As a complainant, the complaint is your chance to state your position and provide relevant details of why you think you have been discriminated against.  It is your responsibility to put clearly, concisely and responsibly your statement about the discrimination you believe you have experienced.  If the complaint is accepted for investigation you are given a chance to comment on what the respondent says about your complaint.  The respondent is not notified of a complaint until after it is accepted for investigation.

It is the complainant's responsibility to ensure that:

  • your complaint is made in writing and signed by you and any other person making the complaint with you.
  • you identify the person/s, group of people, or organisation that you believe has discriminated against you.
  • you provide as many details as possible of the alleged discrimination or prohibited conduct.
  • you lodge your complaint in person, by post, or by other means that the Commissioner allows.
  • If you provide supporting documentation ensure you send copies and retain originals.
  • You provide requested information within the specified timeframe (usually 14 days).
  • You provide clear and accurate information, which is not false or misleading.

During the investigation, the Commissioner may require you to provide specific information or documents under section 97 of the Act.  It is your responsiblity to comply with any such request or provide a reasonable explanation as to why you cannot comply.

Respondent's responsibilities

Under the Act, you, as a respondent, are not required to provide a 'response' to a complaint.  However to ensure procedural fairness and natural justice, the Commissioner always asks for a response.  It is your chance to state your position, what you believe is important and what happened, responding to what is stated in the complaint and adding your own statement.

It is a respondent's responsibility to ensure that:

  • You reply within the specified timeframe (usually 14 days).
  • You request an extension of time in writing from the Commissioner if you have good reasons for not being able to meet a timeframe.
  • If you are not directly named as a respondent to the complaint, but are the responsible person in a company, business, organisation, club, agency etc that has been named as a respondent to the complaint, you respond for the organisation.
  • The information and other documentation you provide is clear and detailed.
  • If you provide supporting documents ensure you send copies and retain originals.
  • You provide accurate information, which is not false or misleading.

If you choose not to provide a response, the Commissioner may still require you to provide specific information or documents under section 97 of the Act.  It is your responsibility to comply with any such request or provide a reasonable explanation as to why you cannot comply.

Complainant and Respondent rights

You are entitled to confidentiality from this office - the Act says the Commissioner must have regard to the desirability of maintaining confidentiality of all persons involved in the investigation of complaints.  Your identity will not be revealed to anyone apart from the complainant or respondent, representatives or advocates, or to witnesses where information from witnesses is sought.

You are entitled to procedural fairness, including a chance to respond to a complaint or reply to a response - this may involve a longer investigation than you might have anticipated.  It is important to get all the facts before reaching a conclusion.

Equal Opportunity Tasmania cannot give legal advice, but you are entitled to procedural advice regarding any complaint you are involved in as complainant or respondent.  You may seek outside legal advice or assistance from your lawyer or community legal centre at any stage of the complaint process.

If you have difficulties writing, you may get someone to help you, or you may contact Equal Opportunity Tasmania to get assistance in completing your complaint or response.

You are entitled to write a complaint or put in a response in any language other than English. Equal Opportunity Tasmania will arrange translation.

Keeping the Commissioner up-to-date

It is your responsibility as a complainant or respondent to ensure that Equal Opportunity Tasmania can contact you during the complaint process:

  • Keep your contact details up-to-date- let us know if you change address, phone number or email.
  • If you are going away - interstate, overseas, on holiday, etc - let us know the dates you will be absent and provide contact details.
  • If you are ill and cannot reply to Equal Opportunity Tasmania correspondence, please try to make contact or ask someone else to make contact so that we know why you are not replying.
  • If we haven't heard from you for some time, a determination could be made without all the input you believe is important.

Please advise Equal Opportunity Tasmania during the complaint process if you require additional assistance or the services of an interpreter.

Anti-Discrimination Tribunal

If a complaint goes to the Anti-Discrimination Tribunal all relevant information from both the complainant and respondent on the complaint file will be provided to the Tribunal.  All questions and additional correspondence must be directed to the Tribunal, not Equal Opportunity Tasmania.

If a complaint is rejected or dismissed the complainant has a right of review through the Tribunal.

If the Tribunal upholds the rejection or dismissal, the complaint lapses and the file is closed.  If the Tribunal overturns the rejection the complaint will be returned to the Commissioner for investigation.

If the Tribunal overturns the dismissal, the Tribunal holds an inquiry.  This is a hearing or trial where the parties give evidence on oath or affimation and are cross-examined and witnesses may be called.  At the end of an inquiry, the Tribunal decides if discrimination has occurred or not, and makes orders about compensation or dismissal,etc.

Tribunal contact details are:

The Registrar
Anti-Discrimination Tribunal
GPO Box 1311
HOBART  7001

or

7th Floor
50 Collins Street
Hobart  Tas  7000

Ph:   (03) 6166 4750

Anti-Discrimination Tribunal website