DDA termination decisions: alternative remedies
DDA complaint decline/termination decisions: Alternative Remedies
Summaries of decisions by Disability Discrimination Commissioner or delegate to decline complaints, and of the President of HREOC or delegate reviewing such decisions; or (from 13 April 2000) decisions by the President or delegate to terminate complaints.
Last updated: 19 April 2000. Compilation and release of these summaries beyond April 2000 has not been authorised by the Commission
Section 71(2) of the DDA provides a number of grounds on which the Disability Discrimination 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. These grounds include
- in a case where some other remedy has been sought in relation to the subject matter of the complaint - the Commissioner thinks that the subject matter of the complaint has been adequately dealt with; or
- the Commissioner thinks that some other more appropriate remedy in relation to the subject matter of the complaint is reasonably available to the person aggrieved by the act; or
- in a case where the subject matter of the complaint has already been dealt with by the Commission or by another statutory authority - the Commissioner thinks that the subject matter of the complaint has been adequately dealt with; or
- the Commissioner thinks that the subject matter of the complaint could be more effectively or conveniently dealt with by another statutory authority.
These decisions are subject to review by the President of the Commission if the complainant applies for review within 21 days of being notified of the decision.
From 13 April 2000 when the Human Rights Legislation Amendment Act 1999 takes effect, this procedure will be replaced by the President or delegate deciding directly whether a complaint should be terminated.
This document
- summarises decisions by the President (or delegate of the President) reviewing by the Commissioner (or the Commissioner's delegate) to decline complaints on these grounds, and some decisions by the Commissioner which were not required to be reviewed, and
- provides some comment on the legislative grounds concerned and on issues arising from the decisions summarised.
While each case is required to be considered on its merits and its particular facts, this document may assist interested parties by indicating the types of decisions to decline complaints which have been made and upheld on review previously.
There is considerable overlap between the grounds for declining complaints discussed below. Decisions are presented under the heading of the ground of decision applied by the President or delegate.
Note that some decline decisions made on this basis are summarised under the heading for the area about which the complaint was made (such as education or employment).
Subject matter adequately dealt with
The Commissioner may decline to deal further with complaints where
- the matter has been adequately dealt with by the Commission or by another statutory authority (DDA s.71(2)(g)), or
- some other remedy has been sought and the matter has been adequately dealt with (DDA s.71(2)(e)).
These grounds do not require that a remedy has been obtained. What is required is only that the matter has been "adequately dealt with".
Although the Commissioner would be bound to take into account the views of the parties on whether a complaint has been adequately dealt with, the decision is one for the Commissioner.
In particular, decisions referred to below indicate that a complaint may be found to have been adequately dealt with even though the complainant remains unsatisfied. For example, the Commissioner may consider that an offer of settlement by the respondent adequately deals with the subject matter of the complaint even though the offer has been rejected by the complainant. Similarly, a submission by a respondent that a complaint should be declined on this basis requires consideration but will not be automatically accepted.
Whether the subject matter has already been adequately dealt with will depend on the facts of the matter. Relevant factors may include
- the nature of any investigation or negotiations conducted, including any specialised technical, professional or other expertise or specific knowledge of the circumstances which may mean that the Commissioner should give more weight to previous processes and their results
- the nature and extent of any remedy already achieved, awarded or offered in relation to the subject matter or matters covered by the DDA complaint
- whether the remedy was constrained by any jurisdictional or other limits not applicable under the DDA
- whether the remedy was accepted or agreed to by the complainant
- how far any remedy already achieved or offered contributes to the achievement of the objects of the DDA in comparison with the outcomes sought in the DDA complaint.
Decisions indicate that where the subject matter of a complaint has been dealt with by a settlement of proceedings in another jurisdiction agreed to by the complainant or authorised representative, this will support a decision to decline the complaint as adequately dealt with, in the absence of clear contrary indications. Contrary indications might include that the settlement
- was reached without independent advice
- was affected by duress or a significant mistake of law or fact
- failed to take into account significant interests of third parties able to be taken into account under the DDA
- failed or was unable to take into account significant issues or factors, including compensation, able to be taken into account under the DDA.
As indicated by s.71(2)(e), relevant avenues of redress are not restricted to remedies through a statutory authority. Internal grievance procedures and other non-statutory remedies are discussed further below.
Matter dealt with by Commission or other statutory authority - subject matter adequately dealt with
Refusal of drivers licence already considered by court
A man with a disability affecting his balance and communication complained that he had been discriminated against when the NSW Roads and Traffic Authority refused to grant him a licence or permit him to take further driving tests unless there was medical evidence of improvement in his condition. This occurred after accidents and after driving tests where his driving was assessed as of a poor and dangerous standard. The Commissioner declined the complaint, on the basis that there had been no unlawful discrimination since any condition or requirement applied should be considered reasonable in the interest of public safety and since the matter had already been adequately dealt with in an appeal to the Local Court as provided for under the Roads and Traffic Act. The President confirmed the decision to decline the complaint, on the basis that the matter had been adequately dealt by the court. She noted that it would be inappropriate for the Commission to review the decision of a court which was in effect what was being sought in this case (1999).
Complaint adequately dealt with by Social Security Appeals Tribunal and AAT
The President upheld the Acting Disability Discrimination Commissioner s decision to decline a complaint regarding entitlement to a disability pension. She found that the complaint had already been adequately dealt with in appeals to the Social Security Appeals Tribunal and the Administrative Appeals Tribunal. She noted that the SSAT was specifically set up to deal with grievances regarding social security entitlements and the AAT similarly was specifically created to deal with review of administrative decisions (20 November 1998).
Agreed settlement meant matter adequately dealt with
An employee complained that she had been discriminated against by being dismissed while on sick leave for an injury. The Delegate of the President confirmed the Acting Disability Discrimination Commissioner's decision to decline the complaint. A complaint on the same matter had been lodged with the Industrial Relations Commission and settled with the agreement of the complainant through her solicitor. In the circumstances the Commission found that this meant the subject matter of the complaint had been adequately dealt with, notwithstanding that the complainant was now dissatisfied with the earlier settlement (2 April 1998).
Decision by IRC on unfair dismissal case adequately dealt with complaint
An employee complained that he had been discriminated against when his employment was terminated after he refused to work a late shift, because of medical advice that the later hours would aggravate his diabetes. The President upheld a decision to decline the complaint. The Industrial Relations Commission had already awarded substantial financial compensation under the Industrial Relations Act after finding that in the circumstances the direction to work the late shift was unlawful under that Act (22 July 1997).
Subject matter adequately dealt with in Local Court proceedings
A person with a disability complained that she had been discriminated against by being evicted on the basis of failing to keep the premises in a reasonable state of cleanliness. The President upheld a decision to decline the complaint. As well as finding that there had been no discrimination, he noted that the issue of responsibility for the state of the premises had been dealt with in eviction proceedings in the Local Court and found that the subject matter had been adequately dealt with (10 June 1997).
Efforts by employer to resolve matter adequate although complainant not satisfied
An employee complained that he had been discriminated against and harassed by his employer. The President confirmed a decision to decline the complaint. He found that there had been numerous attempts to resolve the matter, within the employing department and by the Merit Protection and Review Agency. Although the complainant believed that these investigations and their outcomes were unsatisfactory the President accepted on the evidence that they were bona fide attempts to resolve the matter and had adequately dealt with the subject matter of the complaint (19 May 1997).
Subject matter adequately dealt with by AAT case despite different respondent
A man with a disability complained that restrictions imposed on his ability to fly because of his disability were discriminatory. The President confirmed the Disability Discrimination Commissioner's decision to decline the complaint. He found that the same subject matter had been adequately dealt with in previous proceedings in the Administrative Appeals Tribunal, notwithstanding that the respondents in the AAT and DDA proceedings were different (1 November 1996).
Complaints by Commonwealth employee adequately dealt with by MPRA
A Commonwealth Government employee complained that he had been discriminated against by having his work assessed without reasonable accommodation of his disabilities. The President confirmed the decision of the Disability Discrimination Commissioner to decline the complaint. The subject matter of the complaint had been previously appealed to and dismissed by the Merit Protection and Review Agency. The President was satisfied that the subject matter had been adequately dealt with in those proceedings and also that in any event there had been no discrimination (28 March 1996).
Complaint adequately dealt with by unfair dismissal decision by NSW Industrial Relations Commission
An employee complained that she had been discriminated against by being dismissed. Confirming a decision by the Disability Discrimination Commissioner, the President found that unfair dismissal proceedings previously taken under the NSW Industrial Relations Act regarding the same circumstances had adequately dealt with the matter (4 July 1995).
Other remedy sought and subject matter adequately dealt with
This ground for declining complaints has been applied when remedies other than under the DDA have been sought in the course of proceedings in a court, including where a remedy has been obtained by way of agreed settlement and where no remedy has been provided because the court has found the complaint not to be substantiated. This ground has also been applied where other less formal remedies have been sought and obtained, such as by representations resulting in an administrative decision.
This provision is also applicable where an employer or service provider provides appropriate internal avenues for redress of grievances or is subject to non-statutory remedies such as under an effective industry or professional code. The Commissioner is not bound to continue investigating or attempting to conciliate, or to refer to hearing, matters which he or she thinks have already been adequately dealt with by the respondent.
This need not mean that a remedy has been provided. If an offer of an adequate remedy is open this may be sufficient basis for a finding that the matter has been adequately dealt with and for a decision to decline to deal further with the complaint.
Insurance complaint dealt with by Life Insurance Complaints Service
A man with schizophrenia complained that he had been discriminated against by an insurer who had accepted his decision to cancel his income protection policy when he was under the effects of his illness. The Commissioner declined the complaint on the basis that the matter had already been investigated by the Life Insurance Complaints Service (1998).
Industrial Relations Court decision rejecting claim dealt with matter adequately
An employee alleged that he had been discriminated against by dismissal because of his disability. The President found the complaint had been adequately dealt with in proceedings in the Industrial Relations Court, which held there had been a valid non-discriminatory reason for termination (14 October 1998).
Bar Association investigation dealt with complaint adequately despite complainant lack of satisfaction
The President found that a complaint against a barrister's conduct in pre-hearing conference was found to have been adequately dealt with when investigated by the relevant Bar Association, notwithstanding that the complainant was not satisfied with the outcome (5 August 1998).
Settlement of court case on same matter meant matter adequately dealt with
An employee complained that he had been discriminated against in termination of his employment and regarding his employer's response to work related injuries. The President confirmed the decision of a delegate of the Disability Discrimination Commissioner to decline the complaint as already adequately dealt with. The complainant, who was legally represented, had signed a Deed of Release in the course of unfair dismissal proceedings in the Industrial Relations Court, by which he accepted payment in full settlement of claims in the Industrial Relations Court and the relevant State Equal Opportunity Commission. The President found that the Deed of Release covered the subject matter of the complaint under the DDA, which therefore had been adequately dealt with (29 May 1998).
No evidence of discrimination found in investigation by Ombudsman: matter adequately dealt with
Confirming a decision by a delegate of the Disability Discrimination Commissioner, the delegate of the President found that a complaint of discrimination against a housing authority and an educational institution had been adequately dealt with by an investigation by the Ombudsman, which had found no unreasonable or unlawful conduct by the respondents (19 November 1997).
Note that the Commission may find that an avenue of redress such as the Ombudsman has in fact dealt adequately with a matter once a remedy has been sought through that avenue, although the Commission might not always be able to say in advance that the same avenue presents a more appropriate remedy reasonably available. Compare the decision dated 28 November 1995 referred to below regarding the Defence Force Ombudsman.
Complaint adequately dealt with: settlement of unfair dismissal claim
Confirming a decision by the Disability Discrimination Commissioner, the delegate of the President found that a complaint of discriminatory dismissal had been adequately dealt with by settlement of an unfair dismissal claim in the Industrial Relations Court regarding the same subject matter (10 November 1997).
Allegations dismissed by Work Health Court adequately dealt with
An employee complained that she had been discriminated against by failure to consult her about return to work from injury and by failure to make proper modifications to the workplace. The delegate of the President confirmed a decision to decline the complaint, on the basis that the Northern Territory Work Health Court had already dealt with and dismissed these allegations (7 November 1997).
Internal review by university adequately dealt with complaint
A law student complained that he had been discriminated against because his disability had not been taken into account in a decision to discontinue his enrolment. The delegate of the President confirmed a decision by the Disability Discrimination Commissioner that the matter had been adequately dealt with by a subsequent decision of a higher level university body to permit the student to re-enrol (27 August 1997).
Representations to Minister resulted in matter being adequately dealt with
A complaint alleging disability discrimination by the lack of allocation of a suitable home by an authority controlling community housing was declined on the basis that after representations to the relevant Minister a suitable home had in fact been provided (President, 11 December 1996).
Internal investigation dealt adequately with complaint
The Disability Discrimination Commissioner declined a complaint regarding services provided by an ambulance service, on the basis that an internal investigation by the ambulance service had dealt adequately with the subject matter. The delegate of the President confirmed this decision. He also noted that the complainant could appeal the results of this internal investigation to the Healthcare Complaints Commission (28 June 1996).
Internal investigation dealt adequately with complaint
A complaint against a large Commonwealth authority was dismissed by a delegate of the Disability Discrimination Commissioner, and this decision was confirmed by the President, on the basis that the circumstances of the complaint had been adequately dealt with by the respondent (23 June 1996).
Workers compensation payment adequately dealt with subject matter
An employee complained that because of his work related injury he had been prevented from performing certain duties and thus from holding a higher classification position. The President confirmed the decision of a delegate of the Disability Discrimination Commissioner to decline the complaint. He found that the compensation which had been awarded for the employee's injury was based on him being unable to continue to perform the duties in question. The subject matter of the complaint had therefore already been adequately dealt with (29 November 1995).
Law Institute investigation dealt adequately with complaints against solicitors
A woman with a disability complained that she had been discriminated against by members of the legal profession involved in action by her under the Industrial Relations Act. The President confirmed the Disability Discrimination Commissioner's decision to decline the complaint on the basis that the subject matter had already been adequately dealt with by investigation by the relevant supervisory legal body (17 October 1995).
Other more appropriate remedy reasonably available
This ground for declining a complaint does not require that another remedy should have already been sought, only that it should be reasonably available and be "more appropriate".
Although the Commissioner would be bound to take into account the views of the parties on appropriateness of alternative remedies, the decision is one for the Commissioner, rather than one on which an election by the complainant is conclusive.
This ground may overlap with the power to decline complaints which could more effectively or conveniently be dealt with by another statutory authority such as industrial relations authorities, Ombudsmen or State or Territory anti-discrimination authorities. Some decisions refer to both concepts or combine them. However there are also a number of differences in the application of these grounds. In particular, "other more appropriate remedy" is not restricted to remedies through other statutory authorities.
Appropriateness of remedy may also require consideration of additional factors such as
- cost of remedy - to the complainant and the respondent and possibly to other parties involved and to the public
- whether the alternative remedy is more specifically established for the issue or area concerned.
In a number of decisions, alternative remedies have been decided to be more appropriate because of technical or other specialist expertise.
On the basis of decisions to date, the appropriate weight to be given to these different factors appears to depend on the circumstances of the case.
Attention may also be required to the direction in section 10A(1) of the Human Rights and Equal Opportunity Commission Act that
it is the duty of the Commission to ensure that the functions of the Commission under this or any other Act are performed . efficiently and with the greatest possible benefit to the people of Australia.
No decline review decisions are yet available on the effect of this provision on how the Commissioner ought to approach decisions on whether another remedy is more appropriate in relation to a complaint. It appears to reinforce the point, indicated by a number of decisions summarised below, that depending on the circumstances of the case it may be found more appropriate for a matter to be dealt with by a remedy specifically established for the issue, institution or jurisdiction concerned, rather than the Commission duplicating the work of such a remedy.
Complaint against solicitor: Law Society more appropriate remedy
Confirming a decision by the Acting Disability Discrimination Commissioner declining a complaint, the President decided that the Law Society provided a more appropriate remedy regarding alleged misconduct by a legal practitioner (31 October 1998).
Involuntary treatment: Mental Health Board more appropriate remedy
The President confirmed a decision to decline a complaint that being subjected to involuntary mental health treatment was discriminatory. He found that the Western Australian Mental Health Board provided a more appropriate remedy, noting that the Board had specific expertise in the area and had power to overturn orders made under the Mental Health Act 1996 (WA) (14 October 1998).
More appropriate remedies available for complaints against police and magistrate
The President confirmed a decision of the Disability Discrimination Commissioner to decline a complaint against police on the basis that the matter could be more appropriately dealt with by the Queensland Criminal Justice Commission. He confirmed a related complaint against the Queensland Magistrate's Court on the basis that the Commission had no power to investigate the decisions of a court and that there was a more appropriate remedy available by means of appeal to a higher court (9 October 1995).
Complaint regarding medical treatment: Health Care Complaints Commission more appropriate remedy
The President confirmed the decision of a delegate of the Disability Discrimination Commissioner to decline a complaint regarding surgical and medical treatment in hospital on the basis that the NSW Health Care Complaints Commission provided a more appropriate remedy. He noted that the Health Care Complaints Commission is a specialist body established to deal with such complaints (9 September 1995).
In another similar case, the Queensland Health Rights Commission and Medical Board (to which complaints had also been made regarding the same matters) were found to provide more appropriate remedies for a complaint regarding medical treatment, despite submissions from the complainant that he had failed to gain a remedy through these avenues on previous occasions and that they lacked statutory power to force compliance with their findings (17 September 1998).
Subject matter could be more effectively or conveniently dealt with by other statutory authority
In practice there appears to be little distinction between the operation of this ground for declining complaints - which applies only to remedies through statutory authorities - and the more general ground that another more appropriate remedy is reasonably available. The fact that an alternative remedy does or does not have a statutory basis does not seem to have been decisive for or against it being regarded as more appropriate, effective or convenient for complaints to be dealt with through that remedy rather than the DDA. Decisions indicate that a statutory authority will not always be found to offer a more effective remedy, while a non-statutory remedy is not for that reason necessarily less effective in particular circumstances.
Decisions summarised below indicate that, depending on the subject matter, relevant statutory authorities are not restricted to other specialist equal opportunity or anti-discrimination authorities as have been established by State and Territory statutes.
Commission not the appropriate body to review AAT decisions
A complainant raised concerns about an AAT decision regarding disability support benefit entitlements. Confirming the Acting Disability Discrimination Commissioner s decision to decline the complaint, the President noted that the appropriate avenue for reiview of AAT decisions was the Federal Court (20 November 1998).
AAT more effective or convenient to deal with complaints about decisions of Commonwealth authority
Confirming a decision to decline a complaint, the President decided that allegations of abuse of process raised against a Commonwealth authority were more appropriately dealt with by the Administrative Appeals Tribunal (7 March 1997).
Industrial Relations Court more effective and convenient regarding dismissal
The President confirmed a decision to decline a complaint that an employee's dismissal had involved discrimination because of disability. He noted that the Industrial Relations Act 1988 made it unlawful to terminate an employee's employment on discriminatory grounds including in relation to disability and that unless satisfied that termination had been for a valid reason the Court was able to make orders to put the employee in the same position as if employment had not been terminated. He also noted that proceedings in the Industrial Relations Court on the matter had been brought and in fact were part heard. He was satisfied that the subject matter could be dealt with more effectively and conveniently by the Industrial Relations Court (25 November 1996).
The same decision was made by a delegate of the President in an earlier similar complaint (17 April 1996).
Specialist authorities more effective or convenient regarding mental health treatment
A woman complained against a number of bodies regarding medical treatment provided to her sister. The President confirmed the Disability Discrimination Commissioner's decision to decline the complaints. He found that the Victorian Health Complaints Commissioner, who was already investigating the matter, and the Mental Health Review Board were able to deal more effectively and conveniently with complaints regarding allegedly poor or inappropriate medical treatment. He also found that complaints seeking to secure involvement of the family in medical and accommodation decisions had been adequately addressed by a successful application for guardianship (30 June 1996).
Defence Force Ombudsman not found more effective or convenient
The Disability Discrimination Commissioner declined a complaint from a defence force member on the basis that the matter could be more effectively or conveniently dealt with by another statutory authority, the Defence Force Ombudsman. The President reversed this decision. He was not satisfied that another more appropriate remedy was available in this case, noting that the Defence Force Ombudsman could only make an unenforceable recommendation (28 November 1995).
Complaint against statutory authority more conveniently deal with in AAT proceedings
The President confirmed a decision by the Disability Discrimination Commissioner to decline a complaint against a government authority regarding workers compensation payments and conduct of a rehabilitation program. He noted that an appeal was pending to the Administrative Appeals Tribunal under the Commonwealth Employment Rehabilitation and Compensation Act regarding the employer's internal complaint process dealing with the same subject matter. He concluded that the matter could be more effectively and conveniently dealt with in those proceedings (17 October 1995).
The same decision was also made by the President in another similar case (22 August 1996).
Failure to arrange suitable return to work: Workcover more appropriate remedy
The President confirmed the Disability Discrimination Commissioner's decision to decline a complaint regarding failure to find an appropriate workplace for an employer returning from injury. He found that the matter could be more effectively be dealt with by the Victorian Workcover Authority (25 June 1995).
Social Security Appeals Tribunal remedy for social security matters
The President confirmed a decision to decline a complaint regarding social security entitlements, on the basis that the subject matter could be more effectively or conveniently dealt with by the Social Security Appeals Tribunal (20 June 1995).
Page last revised 9 February 2000