Why don’t people complain about discrimination and harassment?

Legal Case: Victimisation and Sexual Harassment

Published: 24 August 2017
 
People experiencing discrimination and harassment are often afraid of retaliation or victimisation if they speak up. However, victimisation is also unlawful under the Anti-Discrimination Act 1977 (NSW) (ADA). In a case that was finalised this month, an employee took on a large government department over victimisation and won. 

The facts

Ms James, who worked for Corrective Services NSW in Windsor, complained that her Director, Mr Calder, had bullied and harassed her, and had also touched her inappropriately. Her other claims were resolved but the inappropriate touching was referred to the police as a potential indecent assault. 

During the investigation of the complaint, Ms James was moved from Windsor to another position at Silverwater. Her doctor had recommended that she and Mr Calder should not have contact until it was complete. However, when the police finalised their investigation seven months later, she was still not allowed to return to Windsor, even though she had medical clearance to do so. 

Ms James complained to the Anti-Discrimination Board that she had been victimised because she had accused Mr Calder of sexual harassment. When the matter was not resolved at a conciliation conference, she asked to have it referred to the New South Wales Civil and Administrative Tribunal (NCAT).

What is victimisation?

Under the Anti-Discrimination Act, victimisation is subjecting a person to detriment because they have taken any action under the ADA, or they intend to do so or are suspected of doing so. This includes making allegations or complaints, giving evidence and being a witness.

Ms James claimed that she suffered the following detriments:

  • not being allowed to return to her job even though everything was finalised
  • two hours extra travel time, higher fuel costs and wear and tear on her car to get to Silverwater
  • the humiliation of having to do a job at a lower grade, even though she was paid at her usual rate
  • damage to her career in missing out on opportunities for training and promotion
  • being interviewed by Mr Calder when she did apply for a promotion.

The employer’s case

The employer didn’t deny any of the facts, but argued that Ms James hadn’t proved that her transfer from Windsor was victimisation because of her complaint. They said she was moved in order to ensure her safety and the integrity of the investigation, and because of the doctor’s recommendation.  She had been moved rather than Mr Calder because he was more senior and his work was more important to the unit at Windsor.

The Assistant Commissioner for Corrective Services said that Ms James wasn’t returned to her previous position after the investigation was over because her relationship with Mr Calder had completely broken down, and it wasn’t possible for them to work together. 

The Commissioner said they considered the high-intensity environment at Windsor unsuitable for Ms James when she appeared to be ‘so affected by past issues’. In addition, the Windsor unit was undergoing a restructure and her role might be affected. 

The Tribunal’s decision

The Tribunal was satisfied that on the balance of probabilities, Ms James had suffered a detriment in not being returned to Windsor. It pointed out that subjecting a person to detriment does not have to be intentional.

The Tribunal was also satisfied that Ms James’ complaint against Mr Calder was at least one of the reasons for her being subjected to the detriment. It rejected the other reasons given for her not being returned, considering her emotional behaviour reasonable in the circumstances, and the pending restructure irrelevant as there was still someone acting in her job. 

The Tribunal did not accept the Commissioner’s evidence, because there were so many internal inconsistencies. For example, the claim that Ms James couldn’t return to Windsor in case she came into contact with Mr Calder was undermined by him being involved in the job interview. 

The Tribunal noted that all the restrictions arising from Ms James’ complaint were placed on her, and none on Mr Calder. From all of this, it drew the inference that one of the real reasons she was not returned to Windsor was the employer’s disapproval of her complaining about a senior person. Ms James had been victimised. 

The outcome

Ms James was awarded $20,000 as compensation for the harm caused to her by the victimisation. Among other things, this decision took into account her diminished workplace status, loss of career enjoyment and quality of life and lost chances for promotion, and the fact that she continued to suffer significant distress.     

Take home points

  • In order to stop discrimination and harassment, people must be able to complain about it without fear of victimisation.
  • Victimisation is unlawful and should be reported as soon as it happens. 
  • Victims and witnesses can take legal action for compensation if they suffer any detriment because they were involved in a complaint, even if it is not a formal complaint. 
James v Department of Justice, Corrective Services NSW [2017] NSWCATAD 238

Bac​k to August 2017 - Equal Time Newsletter​​

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