QLD Powers under EO Act to Dismiss A Complaint due to not substantiated

[ManufacturedAntiques]

Seeking some guidance regarding a complainant and substantiating claim of discrimination and victimisation (after submitting an email complaining of discrimination).

EVENTS TO DATE:
- lodged a complaint with the EO commission;
- complaint was accepted, investigator assigned and was substantiated;
- respondent has replied

Being asked to substantiate my claim again against the respondent's response as the onus is on me under the Act.

I understand the link under the Act re the person who I alleged did the victimisation had to know about the complaint of discrimination.

However the response is so incredibly carefully worded they have avoided saying what initiated/started the victimisation.

I have lodged two complaints of discrimination over the past 10 years and they have progressed into conciliation at this stage but I am being blocked here and asked to substantiate again.

How strong is the Commissioner's rights in being able to dismiss a complaint at any time which the Commissioner believes has not been substantiated.

Where do I go from here in regards to this?

 

[ManufacturedAntiques]

Respondent has also advised they have found my complaint to be unclear. Onus is back on me to make it clear and substantiate.
Requested a conciliation conference so both parties can discuss matter without prejudice. Request has been denied.

 

[Rob Legat - SBPL]

I'm not surprised that the request for a conciliation conference was denied. According to the principles of procedural fairness, a person has to know the terms of the complaint made against them in order to be able to fairly respond. That's what you're being asked to do in terms of 'substantiation'.

Discrimination and victimisation are separate issues. I'll illustrate with victimisation, because discrimination will depend on the exact nature of discrimination alleged.

Here's what you need to do for each allegation (using 'victimisation' as the example allegation):
1. Find the relevant section/part of the Anti-Discrimination Act which deals with the conduct. In this case, s130 gives the meaning of victimisation;

2. Look for the elements of what constitutes victimisation:
(a) Does or threatens an act; and
(b) To your detriment; and
(c) Because you, or someone you are associated with/related to:
i) refused to do something which would contravene the Act;
ii) allege (or intends to allege) the person committed something that would constitute a contravention of the Act, and that allegation is formed in good faith; or
iii) due to proceedings under the Act against any person; or
(d) They believe that something under (c) is/will/or has happened.

3. Map the factual circumstances against those requirements, as relevant. You must satisfy (a) and (b). In addition you must satisfy at least one of (c)(i) or (ii) or (iii) or (d) ((i) or (ii) or (iii)).

You don't necessarily need to provide the evidence to back that up at this point (unless specifically instructed to do so). It can be sufficient to simply state names, dates, and actions. For example, "On 1 March 20202, my manager at Friendly Corporation Pty Ltd, Bill Smith, directed me to not hire Fred Jones because of his age. I stated that Fred's age was not a relevant factor for the position, and that to do so would be discriminatory. Bill said that if I didn't do as he was directed, I would be demoted and my pay level downgraded."

 

[ManufacturedAntiques]

Thank you for taking the time to respond.

With discrimination and victimisation being two separate matters, the discrimination is sexual discrimination in a workplace.

Do you have a similar example that I could follow for this? It has really helped to clarify. It was the discrimination part the respondent advised was unclear.

Feel like under procedure fairness I am being disadvantaged by a respondent who is being difficult and knows the 'loop holes' in the Act so it can be dismissed on the grounds of unsubstantiated which the Commissioner has the power to do.

 

[Rob Legat - SBPL]

Discrimination can fall into direct and indirect. Direct is easier to recognise.

In terms of examples, I suggest reading through this page: Sex discrimination | Australian Human Rights Commission It covers good, general purpose examples on a range of discrimination types.