Sexual Harassment (A Code in Practice)

Sexual Harassment
(A Code in Practice)

Appendix A

This section describes how complaints of sexual harassment are dealt with under the Sex Discrimination Act by HREOC. A person who makes a complaint is called "the complainant" and a person or organisation against whom a complaint is made is called "the respondent".

Lodging a complaint

Complaints under the Sex Discrimination Act can be lodged by:

individual men or women on their own behalf;
individuals on behalf of themselves and others with the same complaint;
two or more people, on their own behalf or also on behalf of others;
members of a particular class of people, on behalf of the class (called "representative complaints"); and
a union on behalf of one or more of its members.

The person making the complaint must be an aggrieved party, unless it is a union acting on behalf of a member.

Complaints must be made in writing. The letter of complaint, which needs to be signed by the complainant, should include wherever possible:

the name and contact details of the complainant;
the name and contact details of the person and/or organisation who is the subject of the complaint (the respondent/s);
the type of discrimination or harassment alleged;
details of the allegations;
where and when the alleged discrimination or harassment occurred;
the names of any potential witnesses or third parties who could provide relevant information;
details of any action that may have already been taken on the complaint (for example, with management, union etc.); and
copies of any relevant documents.

A complaint will not be disregarded if it does not contain all the above information, but it does speed up the process if it can be provided at the outset.

Complaints can be made in languages other than English. HREOC will arrange and pay for accredited translation.

Complaints should be made within 12 months of the harassment or discrimination occurring. If a complaint is made outside this time frame, the President of HREOC has discretion not to accept it, and generally will not do so unless there is a good reason.

Investigation

If the complaint is accepted, it is allocated to a complaints officer who notifies the respondent/s of the allegations and asks them to provide a response. Investigation also involves obtaining copies of relevant documents such as internal investigation reports, medical records or witness statements.

Conciliation

After all relevant information has been obtained and discussed with the parties, efforts will be made to resolve the complaint by conciliation. This usually involves holding a conciliation conference (either voluntary or compulsory) where the parties are given the opportunity to settle the complaint on mutually agreed terms.

A complaints officer presides over the conference and assists the parties to explore possible options for resolution. The complaints officer does not make determinations of fact, cannot impose an outcome and must observe the principles of natural justice. They are required by law to maintain confidentiality.

Anything said or done during conciliation is not admissible in any subsequent legal proceedings. However, evidence collected during the investigation of the complaint is admissible.

Conciliation can result in a variety of outcomes such as financial compensation, an apology, promotion, reinstatement, provision of a reference, introduction of equal opportunity or harassment policies and programs, re-crediting leave, staff training, counselling or disciplinary action.

Terminating complaints

Complaints may be terminated for a variety of reasons including that they relate to events more than 12 months old, they are lacking in substance, the alleged conduct is not unlawful or there is an adequate alternative remedy. If there is enough evidence to support the complaint, it is covered by the legislation and it is appropriate to do so, HREOC will generally attempt to conciliate the matter. If the complaint cannot be conciliated, the President of HREOC may also terminate the complaint.

In some cases, conciliation will not be appropriate, including: where the subject of the complaint is such that attempting a face-to-face conciliation would be inappropriate; where the parties have entrenched positions; or where there is no room for a negotiated outcome. In these cases, the President of HREOC may terminate the case without attempting conciliation.

A case may also be administratively closed⁴⁵ if HREOC determines that it does not have jurisdiction or the complaint relates to employment with a State instrumentality.

Proceeding to court

When the complaints are terminated for whatever reason, the complainant or the person on whose behalf the complaint was lodged (the "affected person") can apply to the Federal Court of Australia or Federal Magistrates Court to have the original allegations heard and determined. The affected person must apply to one of these Courts within 28 days of the date of the notice of termination. Further information about this process can be obtained from the Federal Court Registry in each State and Territory.

A complainant may not apply to the Federal Court of Australia or Federal Magistrates Court for a full hearing into the matter if the case was administratively closed by HREOC, but may be able to apply for judicial review of HREOC's decision by the Federal Court of Australia.

Decisions of the Federal Court of Australia and Federal Magistrates Court are binding.

Costs

There is no charge for having a complaint dealt with by HREOC.

Lawyers are not necessary at any stage of the process. However, if a party wants independent legal advice or wishes to be represented by a lawyer they are required to pay their own expenses.

If a complaint is terminated and the affected person decides to proceed with an application to the Federal Court of Australia or Federal Magistrates Court, each party is initially responsible for their own legal costs. The judge or magistrate may make an order that one of the parties pay the other's costs.

Parties can also independently apply for legal aid at any stage.

Support services

HREOC has enquiries staff who can provide information and confidential advice concerning a potential complaint. Individuals can telephone or e-mail their inquiries.

If anyone needs to use an interpreter, hearing loop, Auslan interpreter or other support service HREOC will make the necessary arrangements.

Commission contact details are at Appendix B.

Timeframes

The length of time a complaint will take to determine depends on factors such as HREOC's decision as to how the complaint should be dealt with, the complexity of the investigation and the level of co-operation from the parties. Some matters can be resolved in a few weeks while others may take over 12 months. Currently the average time taken to investigate and conciliate a sexual harassment complaint is around 7.6 months.⁴⁶ If the complaint is terminated and the complainant proceeds to court, the timeframe for hearing in the Federal Court of Australia or Federal Magistrates Service will depend on court caseloads and the length and complexity of the case.

Confidentiality

The investigation and conciliation stage is confidential and it is an offence for Commission staff to publicly discuss any details of the complaint or the identities of those involved.

However, if the complaint is terminated and proceeds to court, names of the parties will be mentioned at the hearing, may be reported by the media and will be set out in the final decision of the court, which is publicly released. If requested to do so, the judge or magistrate may make orders suppressing the names of the parties.

Footnotes

45. Administrative closure is a way of finalising a case that cannot be dealt with as a complaint by HREOC.
46. This figure is from a review of sexual harassment in employment complaints conciliated by HREOC in 2002: Human Rights and Equal Opportunity Commission A Bad Business: Review of sexual harassment in employment complaints 2002 HREOC Sydney 2003, p32.

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Last updated: 24 March 2004.