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Discrimination toolkit

What you can do about discrimination

What You Can Do cover pictureKnow your options

There are many ways you can deal with discrimination, and many discrimination problems can be sorted out quickly and informally with some early action.

This section gives you some ideas about your options, both formal and informal.

The first thing to think about is what you want to happen. Once you know what you want, it's much easier to work out the best way to get it.

Some of the things to think about before you decide which approach you want to take are:

  • Do you feel comfortable and confident enough to try to sort the problem out yourself?
  • Do you have anyone who can help you?
  • Can you deal with the stress and time it might take if you take legal action?
  • How urgent is the situation?
  • Are you likely to have an ongoing relationship with the person who has treated you badly?
  • Does the person who has treated you badly have a boss you can talk to?
  • Can you make a complaint directly to the organisation or person you are complaining about?

It is often a good idea to get some help when you're deciding what to do. If the problem is happening at work and you belong to a union, you can ask your union for help. Legal Aid NSW, a community legal centre or other community organisations might also be able to give you advice and help (see Useful contacts).

Can I deal with a discrimination problem informally?

Yes. One option is to raise the issue directly with the person you are having the problem with. You might get a quick and easy solution by doing this.

In some situations this doesn't feel right. You might find the person intimidating or threatening, or just not feel comfortable talking to them about the problem. But you might feel that you could do it if you had a friend or family member with you.

Another option is to write a letter to the person. In the letter you should explain what the problem is, tell them how their behaviour has affected you and what you would like them to do to fix the problem. This will only work if you write a calm letter, not one that has abusive or aggressive words in it. A community worker or lawyer might be able to help you with this.

If you don't want to approach the person who has treated you badly or if you've tried it and it didn't work, maybe you could talk to their boss or someone more senior than them.

Story icon Shanti's story

Shanti works for a company that has a communal staff room. One day she notices a cartoon pinned to the notice board that makes fun of Indian people. She thinks the cartoon is racist and goes to talk to her manager about it. Her manager agrees that it's inappropriate and removes the cartoon. The manager also sends out an email to all employees reminding them that discrimination or harassment in the workplace is against the company's equal opportunity policy and won't be tolerated. The manager attaches the policy to the email and puts a printed copy on the lunchroom wall.

What if I want to deal with the problem more formally?

Many organisations have formal grievance or complaint procedures. It's often a good idea to try these if they're available.

Story icon Lin's story

Lin is a single parent and has worked for the same company for four years. She has always worked the 9.00am to 2.30pm shift so she can drop her children off at school and pick them up. Lin gets a new manager who says Lin needs to be more flexible with her work hours and that her shifts might vary from now on. This will make it hard for Lin and her kids.

Lin tries to talk about it with her manager but she won't listen, so Lin goes to the union. The union helps her make a formal complaint through the company's grievance procedure. The company backs the manager's decision, so the union suggests that Lin considers her options under discrimination law.

Some professions and industries have special organisations that you can complain to about people who work in that profession or industry. Contact details for the organisations listed in the table below are in the Useful contacts - other complaints section.

Story icon Miranda's story

Miranda has a mild intellectual disability and needs extra learning support in the classroom. The school tells her parents that it doesn't have the resources to give Miranda this support. Miranda's parents make a written complaint to the Department of Education, and the Department sets up a meeting with its representative, someone from the school and Miranda's parents to discuss what to do about getting some support for her. They work out a solution without needing to make a discrimination complaint.

Industry complaints
I want to complain about:I can complain to:
Health service providers such as hospitals, doctors, nurses, therapists, complementary medicine practitionersHealth Care Complaints Commission
Government departments and employeesOmbudsman (Commonwealth and State)
LawyersOffice of the Legal Services Commissioner
Insurance companiesFinancial Ombudsman Service
Public schools and teachersDepartment of Education
HotelsAustralian Hotels Association
Banks and other credit providersFinancial Ombudsman Service or Credit Ombudsman Service Ltd
Products or tradersNSW Fair Trading or Australian Competition and Consumer Commission
Advertising

Advertising Standards Bureau or The Communications Council

Story icon Andre's story

Andre is Aboriginal. He fell and cut his arm on a piece of glass. He goes to the local GP to get stitches. During the treatment the doctor says “I suppose you were drunk when this happened. I see too many of your people in here because of the drink”. Andre leaves the surgery feeling upset. He decides to do something about it and gets some advice from a lawyer about his options. The lawyer tells him that he can make a race discrimination complaint under discrimination law and/or make a complaint about the doctor’s comment to the Health Care Complaints Commission.

The NSW Anti-Discrimination Board website (see Useful contacts - organisations) has some helpful information about how to sort out complaints about unfair treatment and where you can go for help.

Remember, if the non-legal options don't work, you can always go down the legal path. But there are deadlines for taking legal action. Under discrimination law, you generally have to make your complaint within 12 months from when the problem occurred. This time limit applies to complaints made to the Anti-Discrimination Board in NSW. If you decide to apply to the Australian Human Rights Commission the time limit is 6 months. There are different (and often shorter) time limits for trying other legal options, especially if your case is about your employment (see sections after Tips below).

What if I'm victimised for speaking out?

Some people worry that they will be treated badly if they speak out. It is against the law for people to victimise you - to treat you badly because you have complained about discrimination, or because someone thinks you are going to complain (see Victimisation).

Tip icon Tips for handling the problem yourself
  • Write things down when they happen or as soon as you can afterwards. Record times, dates, names and what people said and did. You can use this to support your complaint later on.
  • Keep a copy of any letters or emails you send or receive, and don't throw out any other relevant paperwork.
  • Try to stay calm. Being treated unfairly can be upsetting, but try not to talk to anyone involved when you are angry or distressed. When you feel like this, talk to a friend, or a counsellor, or write down how you feel.
  • Ask for help. Confronting someone about a discrimination problem is hard to do on your own. It might be easier if you have a friend, relative, workmate or union representative there with you.
  • Remember that there are time limits on starting legal action. If you want to try non-legal options but you're getting close to the deadline, you can start legal action and then ask for it to be put on hold while you keep trying the non-legal options.
I want to take legal action. What are my options?

You might have different legal options for dealing with a discrimination problem. Making a complaint under discrimination law is one option. Most of this Toolkit focuses on discrimination law complaints.

If you've been treated unfairly at work, there are likely to be various legal options available to you. Many of these options are set out in a law called the Fair Work Act.

Depending on the circumstances of your case, you might have to pick one legal option only. But sometimes you can choose more than one. Making the right decision can be very complicated. We strongly recommend that you get legal advice on what is best for you.

If you have lost your job it's very important that you get legal advice as soon as possible because the law says you have to start some types of legal action very quickly, often within 21 days.

What legal options do I have if the unfair treatment happened in my employment?

Here are some of the other laws that might apply if you've been treated unfairly at work:

Unfair dismissal

Unfair dismissal is when you are dismissed (or forced to resign) from your job and the dismissal is 'harsh, unjust or unreasonable' (unfair). Dismissals can be unfair for different reasons, including discrimination.

You might be able to make an unfair dismissal complaint (lawyers call this 'making an application') to the Fair Work Commission. All non government employees in NSW are covered by the Fair Work Commission. If you are an employee of the NSW Government or a Local Council you are not covered by the Fair Work Commission. Instead, you must make an unfair dismissal application to the Industrial Relations Commission of NSW.

The time limit to make an unfair dismissal application to the Fair Work Commission is 21 days from the date you were dismissed. The time limit to make an unfair dismissal application to the Industrial Relations Commission of NSW is 21 days from the date you were dismissed. These time limits are very strict. Talk to a lawyer or your union urgently to find out if you have an unfair dismissal complaint and which organisation you should make it to.

General protections

General protections laws cover a variety of problems that employees face. One of these problems is discrimination because of a prohibited ground (like age, race, sex or disability).

General protections laws also cover being treated badly (including being dismissed) because of your workplace rights. Workplace rights include things like making a discrimination complaint, taking sick leave, or asking for parental leave. This type of complaint is sometimes called an 'adverse action' complaint.

You might be able to make a complaint about general protections to the Fair Work Commission. Complaining to the Fair Work Commission about general protections is not like taking your case to a court. The Fair Work Commission cannot make a judgement (a legal decision). It can only help you and your employer try to agree on a solution that resolves the problem. The time limit to make a general protections complaint to the Fair Work Commission is 21 days from the date you were dismissed.

If you and your employer cannot resolve your complaint when you are at the Fair Work Commission then you could apply to the Federal Court or the Federal Circuit Court of Australia to hear your case and make a judgement. In court the employer has to prove they did not discriminate against you.

If you are going to apply to the Court you should talk to a lawyer or your union urgently. If your complaint involves dismissal and it is not resolved at the Fair Work Commission you only have 14 days to apply to the Court.

You can also make a complaint to the Fair Work Commission or apply directly to the Court if you have not been dismissed. You have up to 6 years to apply to the Court about general protections even though you might have complained to the Fair Work Commission.

You can also make a complaint about general protections to the Fair Work Ombudsman. Complaining to the Fair Work Ombudsman is different from complaining to the Fair Work Commission or applying to a court. The Fair Work Ombudsman might investigate your complaint and help find a solution, but they can't make a judgement about your complaint. Only a court can make a judgement.

It's important that you lodge a complaint with the Fair Work Commission within the time limits, even if you have also made a complaint to the Fair Work Ombudsman. The time limits for the Fair Work Commission or the Courts do not stop running just because you've made a complaint to the Fair Work Ombudsman.

Talk to a lawyer or your union to find out if you can make a general protections complaint to the Fair Work Commission and/or the Fair Work Ombudsman.

Bullying

If you feel that you have been bullied at work you might have grounds to make a complaint to the Fair Work Commission.

The law defines bullying as where ‘an individual or group repeatedly behaves unreasonably towards a worker and the behaviour creates a risk to health and safety’.

The Fair Work Commission can make an order to try and stop the bullying from happening again, but cannot make the employer pay a fine or compensation for bullying.

Underpayment of wages and other benefits

If your employer didn't pay your proper wages or other benefits (like overtime), you can make a complaint to the Fair Work Ombudsman. You might be able to apply to the Federal Circuit Court of Australia (FCC) or the Chief Industrial Magistrates Court to have these benefits paid. If your employer has underpaid or not paid your superannuation benefits then you can make a complaint to the Australian Taxation Office.

Story icon Frank's Story

Frank is fired because he is very active in the union. He wants his job back and wants to get paid the wages he is owed. He thinks he might have a case under discrimination law and gets some legal advice. His lawyer tells him that he can't get the outcome he wants from discrimination law because trade union activity is not a ground of unlawful discrimination. But his lawyer says he could have a case for 'unfair dismissal' or 'general protections' under employment law. He might also be able to take legal action for underpayment of wages in a court.

Workers' compensation

If you have experienced discrimination or bullying at work and it has caused you a physical or psychological injury, you might be able to apply for workers' compensation. You can do this at the same time as making a complaint under discrimination law or under the Fair Work Act.

If you feel that you are being treated unfairly at work because you are on workers' compensation you could have a few legal options, including a discrimination or general protections complaint. This is a complex area of law and there are strict time limits for workers' compensation claims. It is important to get legal advice as soon as possible after you are injured to work out your options.

Tip icon Tip

If you take time off because of an injury, make sure you get a WorkCover medical certificate from your doctor which covers the period you are away from work. You should give this certificate to your employer. It is illegal for your employer to dismiss you because you have taken time off from work where you have provided your employer with a WorkCover medical certificate.

Occupational health and safety (OH&S)

OH&S laws say that employers must provide a safe and healthy workplace. If you have experienced discrimination, harassment or bullying at work, this might mean you have been exposed to an unsafe workplace. You can make a complaint about this to WorkCover NSW, who might investigate and try to prosecute your employer.

Breach of contract

Whether or not you actually have a written contract with your employer, the law says that there is a contract between you - and that both you and your employer have rights and obligations under this contract. For example, your employer might have to provide a workplace where there is no discrimination, harassment and bullying. So if you have been discriminated against at work you might be able to take legal action against your employer for breaching your employment contract. Breach of contract claims can be legally complicated. If you think that you might have a breach of contract claim you should speak to a lawyer.

Negligence

Employers have a duty of care to their employees. This means that they have to provide a workplace that is safe, and where there is no discrimination, harassment and bullying. If your employer does not do this you might be able to take legal action against them for negligence. Negligence claims can also be legally complicated so speak to a lawyer first.

Superannuation disability claims

Many superannuation policies include disability insurance. Many employees are not aware of the disability insurance. It is always a good idea to check with your superannuation fund.

If you have a disability that means you can't do your job, you might be able to make a disability insurance claim under your superannuation policy insurance. If the insurance company refuses to pay your claim for some reason, you may be able to make a complaint to the Superannuation Complaints Tribunal or the Financial Ombudsman Service.

You can also see a lawyer who might be able to help you with a claim against the insurance company.

If you think you can still do your job despite your disability, but your employer says you can't, you might be able to make a disability discrimination complaint.

How do I know which is the best legal option for me?

What is the best legal option for you will depend on many things including:

  • Whether the law covers your particular situation. There are lots of rules about who is allowed to complain under different laws, and this might mean that some legal options are not available to you.
  • Time limits. There are different deadlines under different laws for starting legal action. If you've missed a deadline it might mean that there are not as many options available to you.
  • The result you want. Different laws can give you different outcomes. For example, if you want to get your job back, it might be best to make an unfair dismissal application. But if you want compensation for hurt, humiliation and distress you have suffered from being treated unfairly at work, you can get this under discrimination law or a general protections complaint but not through an unfair dismissal complaint.
  • Your chances of success. You might have a stronger case under one set of laws than others.
  • Costs. Under some laws you might have to pay the other side's legal costs if you lose your case. It is very important that you get legal advice on the costs risks under different laws.

Story icon Nick's story

Nick is fired when his boss finds out that he is HIV+. Nick is very upset and wants to take legal action. But Nick is not well at the moment, so doesn’t see a lawyer for 3 months. His lawyer tells him that he had a good unfair dismissal or general protections case against his employer, but has missed the 21 day deadline. His lawyer also tells him he has a good case under discrimination law – and that he has 12 months from the date he was sacked to make the complaint. At the moment Nick feels that he’s not up to taking any legal action and wants to focus on getting well. But he knows that he has 12 months to make a discrimination complaint if he wants to.

Sometimes you can make complaints under different laws at the same time, and other times you have to choose between laws. Once you make your choice you might not be able to change your mind later.

If you want to take legal action, get advice from a lawyer or your union about your options. Do this as soon as you can - remember those time limits!

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