A review of outcomes of complaints under the Sex Discrimination Act 1984
Rocky
Clifford
Director, Complaint Handling
Human Rights and Equal Opportunity Commission
Note: First published 1998. This paper was written and refers to complaint handling processes prior the introduction of the Human Rights Legislation Amendment Act 1999 which significantly changed the role and responsibilities of the Commission, President and Commissioner in terms of the complaint handling function.
A review of outcomes of complaints under the Sex Discrimination Act 1984
Introduction
The intention of this paper is to review the outcomes of complaints lodged under the Sex Discrimination Act 1984 with the Sydney office of the Human Rights and Equal Opportunity Commission in the 1997 calendar year. While the focus of the paper is the conciliated outcomes, the results of all complaints lodged under the Sex Discrimination Act in 1997 will be reviewed. Issues regarding complaint handling procedures are also discussed.
Previous reports on complaint handling [1] and outcomes of sex discrimination cases [2] have identified significant problems experienced by both complainants and respondents. Parties to complaints found long delays before their complaints were dealt with as well as inefficient complaint handling processes which for many did not result in satisfactory resolutions. In fact many complainants in the past have discontinued their action in part because of lengthy delays. [3]
In response to earlier reports, the Sydney office better defined, and implemented improved complaint handling procedures. A procedures manual has been produced and an investigation training course and a conciliation training course have been developed and implemented. A data base providing complaint management information which can be used as a case management tool, was introduced in the Sydney office in October 1996. [4] Finally, a bench marking project undertaken by the Sydney office of the Commission in 1996/7, made further recommendations to improve and move towards best practice in anti-discrimination complaint handling. The Commission's complaint handling procedures have undergone substantial changes since these reports. The backlog of complaints has been removed and widespread dissatisfaction with the complaint handling service eliminated. The 1997 complaint outcomes under the Sex Discrimination Act reflect the improvement.
It is important to note that in 1993 the Federal Court of Australia, in the Ellenbogen case, handed down a decision which clarified the manner in which the Commission should define a complaint. The consequence of this was a significant increase in the number of registered complaints. Previously letters received by the Commission where either registered as a complaint or a written inquiry. Ellenbogen essentially redefined a complaint as a piece in writing, penned by an aggrieved person, alleging a breach under the Act. This decision lowered the threshold of what was to be defined by the Commission as a complaint. All complaints must be referred to the relevant Commissioner or delegate for statutory decision making.
Complaints under the federal Sex Discrimination Act which originate from New South Wales, Queensland, Northern Territory and the Australian Capital Territory are handled at the Sydney office of the Commission. Tasmanian based complaints are handled through the Commission's regional office in Tasmania.
Complaints lodged under the Sex Discrimination Act in Victoria, South Australia and Western Australia are generally handled by the State equal opportunity agencies on behalf of the Commission under co-operative agreements between state and federal Attorneys-General.
Complaints lodged under the Sex Discrimination Act, that are unable to be settled through conciliation and hence require public hearing and determination are managed through the legal section of the Commission in Sydney. This function is expected to be transferred to the Federal Court of Australia pursuant to the Human Rights and Equal Opportunity Amendment Bill 1997.
The Sex Discrimination Act 1984
The Sex Discrimination Act 1984 provides that:
52 (1) Where:
(a) a complaint relating to an alleged unlawful act is made to the Commission under section 50; or
(b) it appears to the Commission that a person has done an act that is unlawful by virtue of a provision of Part II;the Commission shall notify the Commissioner accordingly and the Commissioner shall, subject to subsection (2), inquire into the act and endeavour, by conciliation, to effect a settlement of the matter to which the act relates.
(2) The Commissioner may decide not to inquire into an act, or, if the Commissioner has commenced to inquire into an act, decide not to continue to inquire into the act if:
(a) the Commissioner is satisfied that the act is not unlawful by reason of a provision of Part II;
(b) the Commissioner is of the opinion that the person aggrieved by the acts does not desire, or none of the persons aggrieved by the act desires, that the inquiry be made or continued;
(c) in a case where a complaint has been made to the Commission in relation to the act, a period of more than 12 months has elapsed since the act was done; or
(d) in a case where a complaint has been made to the Commission in relation to the act, the Commissioner is of the opinion that the complaint was frivolous, vexatious, misconceived or lacking in substance.
Many of the Sex Discrimination Commissioner's decision making powers under the Act are derived from section 52. This section outlines the only statutory reasons for discontinuing a complaint. If a complaint is discontinued for one or more of the reasons under this section complaints are reported and recorded as declined.
If the Commissioner decides to discontinue an inquiry into a complaint pursuant to section 52(2) the Commissioner shall give a notice in writing to the complainant/s and the reasons for that decision. [6] In that notice the Commissioner shall also outline the complainant's review rights as prescribed by the Act.[7]
Inquiry and conciliation processes
The level of inquiry the Commissioner may undertake will vary. A quick informal manner may be utilised or a more formalised inquiry involving the taking of statements, collection of documents and site inspections, may be undertaken. The level of inquiry is decided on a case by case basis. The inquiry's purpose is to assist the Commissioner in deciding whether the complaint should be discontinued for reasons set out in section 52(2) of the Act. Although the Commissioner may discontinue an inquiry into a complaint at any time, the Commissioner generally attempts to identify complaints to be discontinued sooner rather than later. For example complaints may be declined as not unlawful, because an exemption exists, or more than twelve months have elapsed since the alleged act occurred. This quickens the process time and lessens unrealistic expectations of parties. After these complaints have been filtered out, only complaints that are potentially not lacking in substance are left to further inquiry. If these complaints then proceed to conciliation and are unable to be settled it is a good indication that these complaints will proceed to hearing. To put it another way if parties to a complaint lodged under the Sex Discrimination Act proceed to conciliation the parties can be fairly assured it will not be discontinued by the Commissioner if the matter does not settle, unless of course the complainant decides to withdraw the complaint. The opportunity to settle a matter after it has been >referred= for hearing by the Commissioner, but prior to determination, is always open. The majority of Sex Discrimination Act matters that are referred to the Commission for hearing settle prior to the hearing.
The Sex Discrimination Act does not prescribe procedures for conciliation. Conciliation procedures are followed according to agency policy and practice. The policy in the Sydney office is to assist settlement of matters through any appropriate means. The majority of complaints are settled following the generally recognised process of a face to face conciliation conference where by the conciliator facilitates a meeting and assists the parties in reaching an agreement. This process usually begins with a pre - conference meeting between the conciliator and individual parties. This is followed by a meeting of all parties where the issues are discussed or clarified. Proposals for settlement are then outlined by the complainant and negotiation ensues. This type of conciliation conference generally involves the conciliator >caucusing= with either party, at the conciliator's or parties' request, or, either party may engage in private caucus with there relevant representatives. If settlement is reached a conciliation agreement is drawn up by the conciliator and the parties execute the agreement.
Telephone negotiation is also a process the Sydney office may adopt when endeavouring to conciliate a complaint. The conciliator ascertains the complainant's proposals for settlement, advises the respondent of those proposals and relays any counter proposal by the respondent back to the complainant. If there is eventual agreement of the terms, the conciliator prepares the agreement for execution by the parties. Tele-conferencing is also utilised, the format for which follows that of the face to face conciliation process.
Once a complaint has been lodged and the parties are formally notified of the complaint a number of parties will attempt to settle the complaint without the assistance of the Commission. A reasonable period of time is generally granted and the parties advise the Commission if they are successful in settling the matter. At times parties ask the Commission to assist in facilitating the settlement if a stalemate has been reached.
If the parties have reasonable access to the central business district conciliators generally hold conciliation conferences in the Commission's Sydney office. If the parties are in regional centres then the conciliator generally travels to that centre. For country and remote areas the closest regional centre or large town is chosen as the conference meeting place, with the agreement of the parties. When the Sydney office is handling interstate complaints the conciliators travel to the relevant location.
Complaint outcomes
In 1997 some 376 complaints under the Sydney office's complaints under the Sex Discrimination Act had outcomes. These complaints are the subject of this review.
The Sydney office records >outcomes= of complaints in circumstances which correlate to the statutory decision making of the Commissioner or her delegate :
- when the inquiry has been discontinued under section 52(2)
- when the complaint has been referred pursuant to section 57(1)
- when the complaint has been conciliated
- when a complaint has been terminated.
The Commissioner or her delegate shall make the decision to discontinue or refer a complaint. Terminated complaints concerned either sex discrimination in State public service employment [8] or complaints that had been lodged under State anti-discrimination law. [9] Most conciliated complaints, and all complaints referred for hearing, were also finalised at the time that they were conciliated or referred. Complaints discontinued under section 52 were finalised after the 21 day statutory review right period elapsed. Note, when reviews were sought the complaints were not finalised unless the President reviewed and upheld the Commissione's decision. When the decision was overturned (a negligible number) the complaint was returned to the Commissioner for further inquiry.
1997 Complaint outcome statistics
Of the 376 complaints with outcomes, 60 complaints were made by men and 316 were made by women, (see Table 1). Some 50 complaints of the 376 related to non-employment areas of discrimination under the Sex Discrimination Act and the remaining 326 concerned the area of employment, (see Table 2).
Table 1: Complaints by sex of complainant
| Sex of complainant | Number | Percentage |
| male | 60 | 16% |
| female | 316 | 84% |
| Total | 376 | 100% |
Table 2: Complaints by area of discrimination
| Sex of complainant | Number | Percentage |
| Employment | 326 | 86% |
| Non-employment | 50 | 14% |
| Total | 376 | 100% |
Of the total number of complaints, inquiries into 206 complaints were discontinued or declined for one or more of the reasons under section 52(2) of the Act, 114 were settled by conciliation, 41 were referred for hearing pursuant to section 57 of the Act and 15 were terminated (see Table 3).
Table 3 : Complaints by Outcome
| Outcome | Number | Percentage |
| declined | 206 | 54.8% |
| conciliated | 114 | 30.3% |
| referred | 41 | 10.9% |
| terminated | 15 | 4% |
| Total | 376 | 100% |
NB. The percentages in all Tables are rounded to the nearest point 1 of a percentage.
Of the 206 complaints that were declined under section 52 (2) of the Act, 92 complaints were discontinued when either the complainant advised the Commissioner that they no longer desired the inquiry to continue, or when the Commissioner formed the opinion the complainant no longer desired the inquiry to continue, pursuant to subsection (b), 60 were deemed lacking in substance under subsection (d), 37 were deemed not unlawful under subsection (a) and 17 were classified as >out of time= under subsection (c), (see Tables 4 and 5).
Table 4: Reason for decline as a proportion of the total number of complaints with outcomes
| Reason | Number | Percentage |
| no longer desires inquiry to continue | 92 | 24.5% |
| lacking in substance | 60 | 16% |
| not unlawful | 37 | 9.8% |
| out of time | 17 | 4.5% |
| Total | 206 | 100% |
Table 5: Reason for decline as a proportion of the number of complaints discontinued
| Reason | Number | Percentage |
| no longer desires inquiry to continue | 92 | 45% |
| lacking in substance | 60 | 29% |
| not unlawful | 37 | 18% |
| out of time | 17 | 8% |
| Total | 206 | 100% |
Of the 92 complaints that were discontinued under section 52(2)(b), 70 complaints were discontinued at the complainant's request and 22 complaints were discontinued because the Commissioner formed the opinion that the complainant did not desire the inquiry to continue . Generally the Commissioner forms the opinion that the complainant no longer desires the inquiry to continue when repeated attempts to contact the complainant have been unsuccessful. Those complainants who advise the Commissioner that they no longer desire the inquiry to continue do so for a number of reasons, including private settlement or loss of interest in pursuing the complaint. A large number of complainants decide to withdraw their complaints after they receive the respondent's response. This is either because complainants are satisfied by the respondent's response or they may assess that the Commissioner will decline the complaint as lacking in substance due to lack of evidence. In these circumstances the complainant may request that the inquiry be discontinued in preference to the complaint being declined as lacking in substance. At times the weight of progressing the matter is too onerous for the complainant.
Table 3 shows 41 complaints were referred by the Commissioner for public hearing and determination. Of the 41 complaints that were referred, 29 were referred after an unsuccessful attempt at conciliation. These complaints were referred pursuant to section 57(1)(b) of the Act. Eight complaints were referred because the Commissioner had formed the view they were not conciliable pursuant to section 57(1)(a) of the Act. The Commissioner may make this decision if the complaint has given rise to a protracted dispute, if the parties are not willing to attempt conciliation or if the proposals for settlement are unrealistic or highly disparate. Three complaints were referred because the Commissioner was of the opinion, pursuant to section 57(1)(c), that the nature of the matter was such that it should be referred. One complaint was referred because the complainant had requested the matter be referred after the Commissioner had declined the matter as not unlawful. This complaint was referred pursuant to section 52(5), which requires the Commissioner to refer, (see Table 6).
Table 6: Reason for referral as a proportion of the number referred
| Reason | Number | Percentage |
| conciliation unsuccessful | 29 | 71% |
| not conciliable | 8 | 22% |
| nature of the matter is such that it should be referred | 3 | 7% |
| pursuant to section 52(5) | 1 | 2.4% |
| Total | 41 | 100% |
Of the 41 matters that were referred for hearing, 3 complaints were withdrawn, 19 were settled prior to hearing, 16 pending and 3 matters were determined. The 16 pending matters were either still to be listed, part heard, adjourned pending other matters, or awaiting a pending decision.
Table 7 : Outcome of matters referred for hearing
| Outcome | Number | Percentage |
| withdrawn | 3 | 7.3% |
| settled prior to hearing | 19 | 46.3% |
| pending | 16 | 39% |
| decision | 3 | 7.3% |
| Total | 41 | 100% |
Of the total 376 outcomes recorded, 143 matters proceeded to conciliation. Of these 114 complaints were successfully settled at or following the conciliation conference. Some 29 complaints were deemed unconciliable and referred for hearing, (see Tables 8 and 9).
Table 8 : Number of complaints where conciliation attempted of total outcomes
| proceeded to conciliation | 143 | 38% |
Table 9 : Outcome of complaints which proceeded to conciliation
| Outcome | Number | Percentage |
| settled by conciliation | 114 | 79.7% |
| did not settle | 29 | 21.3% |
| Total | 143 | 100% |
Of the 114 complaints that were settled by conciliation some 174 terms of settlement were recorded. Conciliation agreements that provided settlement terms by way of financial compensation numbered 84. A further 34 of the 174 terms of settlement provided for terms of an apology. Only 8 of the agreements which included an apology did not include financial compensation. Some 20 of the terms of settlement included terms relating to policy change and/or staff training, 7 recorded that a service was provided and 14 recorded provision of a work reference. Finally 15 terms of settlement recorded miscellany terms including offers of redundancy, ceasing to undertake an action, increased job opportunity, that the complainant was satisfied with the explanation from the respondent and a few complaints settled without the assistance of the Commission and the terms were unknown, (see Table 10).
Table 10: Terms of settlement
| Terms of settlement | Number of terms | Percentage |
| financial compensation | 84 | 48.3% |
| apology | 34 | 19.5% |
| policy change &/or staff training | 20 | 11.55% |
| miscellaneous | 15 | 8.6% |
| reference provided | 14 | 8.0% |
| service provided | 7 | 4.0% |
| Total | 174 | 100% |
Note: the number of terms of settlement exceeds the numbers of conciliated complaints because a number of agreements involved a combination of the terms listed. It was not uncommon to find an agreement which provided for an apology, reference, policy change and financial compensation.
The 84 complaints that settled with terms for financial compensation ranged from $50.00 to $90.000.00. The five most substantial amounts all concerned matters of sexual harassment, with the respondent of each either a large corporation or a government agency. The complainants were all legally represented, (see Table 11).
Table 11: Ranges of financial compensation in complaints that settled with financial compensation
| $ Range | Number |
| 50 - 1,000 | 12 |
| 1,001 - 5,000 | 37 |
| 5001 - 10,000 | 16 |
| 10,001 - 15,000 | 8 |
| 15,001 - 20,000 | 3 |
| 20,001 - 25,000 | 3 |
| 25,001 - 30,000 | 1 |
| 30,001 - 35,000 | 1 |
| 35,001 - 40,000 | 1 |
| 60,000 | 1 |
| 90,000 | 1 |
| Total | 84 |
Of the 114 complaints settled by conciliation 102 were related to employment and 12 to the provision of goods, services or facilities, (see Table 12).
Table 12: Area of complaint for conciliated matters
| Area | Number | Percentage |
| Employment | 102 | 89.5% |
| Provision of goods, services or facilities | 12 | 10.5% |
| Total | 114 | 100% |
Of the 114 complaints settled by conciliation the respondent employer or service provider was a small business in 51 matters, a medium business in 21 matters, a large business in 21 matters and a Commonwealth agency in 21 matters, (see Table 13).
Table 13: Type of employer/service provider of total of conciliated complaints
| Terms of employer | Number | Percentage |
| Small business < 15 employees | 51 | 44.7% |
| Medium business 16 - 100 employees | 21 | 18.4% |
| Large business > 100 employees | 21 | 18.4% |
| Commonwealth government agency | 21 | 8.6% |
| Total | 114 | 100% |
Of the 143 matters that proceeded to conciliation 83 were complaints of sexual harassment, 28 were complaints of sex discrimination, 21 complaints concerned pregnancy discrimination, 4 related to family responsibilities and 2 concerned marital status. Of the 28 sex discrimination complaints 11 were combined with complaints of either pregnancy or family responsibilities or both, but were categorised as sex discrimination for data purposes. Of the 17 sex discrimination complaints, 14 related to provision of goods or services, (see Table 14).
Table 14: Grounds of complaint for the number of matters which proceeded to conciliation
| Ground | Number | Percentage |
| sexual harassment | 88 | 61.5% |
| sex discrimination | 28 | 19.6% |
| pregnancy | 21 | 14.7% |
| family responsibility | 4 | 2.8% |
| marital status | 2 | 1.4% |
| Total | 143 | 100% |
Of the 143 complaints where conciliation was attempted 65 complainants were represented, (see Table 15).
Table 15 : Number of complainants that were legally or otherwise represented where conciliation was attempted
| Representation | Number | Percentage |
| No legal representation | 78 | 55% |
| Legal or other representation | 65 | 45.5% |
| Total | 143 | 100% |
The majority of complaints that were settled by conciliation were settled within 9 months of receipt of the complaint. A small number took over 2 years to settle. The longest time recorded to conciliate a complaint was 2 years and 7 months, (see Table 16).
Table 16 : Time taken to conciliate a complaint from receipt of complaint
| Time taken to resolve | Number | Percentage |
| over 2 years | 6 | 5% |
| over 1 year 6 months | 10 | 8.5% |
| over 1 year | 13 | 11% |
| over 9 to 12 months | 17 | 15% |
| over 6 to 9 months | 27 | 24% |
| over 3 to 6 months | 23 | 20% |
| 1 day to 3 months | 18 | 16% |
Summary
The initial intention was to review the 1997 outcomes of complaints lodged under the Sex Discrimination Act and to compare them to the outcomes of previous years. However, given the Ellenbogen decision, and that this review is of outcomes for a one year period covering all types of complaints under the Sex Discrimination Act while the previous reviews were for longer periods and involved sex discrimination only, a meaningful comparison cannot be drawn. It is reasonable however to say that the sheer number of complaints that were dealt with in the 1997 calendar year and the number of matters that were settled by conciliation was significantly higher than in previous reviews.
It is also reasonable to note the majority of complaints lodged under the Sex Discrimination Act in the Sydney office continue to be lodged by women, and concern sexual harassment in employment. The employer, as in the past, is usually a small business.
One third of complaints, of the total number of complaints with outcomes for 1997 were conciliated. If a complaint proceeded to conciliation there was an 80% chance of the matter settling. The majority of complaints unsuccessful at the conciliation stage were settled prior to determination, if the matter was referred for hearing. The terms of settlement were most likely to include financial compensation between $1,000 - $15,000 and an apology. The majority of complaints resolved by conciliation reached an outcome within 9 months of receipt of the complaint.
The Commission's Sydney office is currently undertaking a customer survey. Complainants and respondents are being surveyed one month after the complaint has been finalised and closed. The aim is to publish the survey outcomes in late 1998 as part of the Commission's Service Charter. The information gleaned from this survey will be utilised by the Complaint Handling Section of the Commission to further improve complaint handling processes.
1.
Distaff Associates, A Better Balance: A Review of the Complaints handling
Processes under the Sex, Racial Disability Discrimination Acts Volume
1, May 1994. Public Interest Advocacy Centre, Final Report of the Consultancy
into the Law and Practice of Complaint Handling by the Human Rights and
Equal Opportunity Commission, May 1994.
2. Hunter, R. and Leonard, A., The Outcomes of conciliation
in Sex Discrimination Cases Centre for Employment and Labour Relations
Law, The University of Melbourne, Working Paper No. 8, August 1995.
3. Ibid p17.
4. A number of the State agencies will be introducing
the same data base in the near future so it is anticipated that national
data will be eventually available on all cases of discrimination.
5. Ellenbogen v Human Rights & Equal Opportunity Commission
& Ors (1994) EOC 92-564
6. Sex Discrimination Act 1984 (Cth) section 52(3).
7. Sections 52 (3A) & (4). Note that if a complaint
has been discontinued on the basis the act complained of is >not unlawful=
the Act provides that the complainant has a right to request the matter
be referred for public hearing and determination. If a complaint has been
discontinued for the other reasons outlined in section 52(2) the complainant
has a right to request the matter be reviewed by the President of the
Commission.
8. Section 13 of the Act proscribes complaints under the
Act in relation to employment by an instrumentality of a State.
9. Section 11 of the Act proscribes a person making a
complaint under the Act when they have instituted proceedings under State
discrimination law.
Last updated 19 November 2002.