Two significant cases - Anti-Discrimination NSW and the Australian Human Rights Commission

In 2022-2023, Anti-Discrimination NSW (ADNSW) received 1,833 complaints whilst the Australian Human Rights Commission (AHRC) received 6,849 complaints. Despite significant numbers of complaints being received across these jurisdictions, few cases proceed to final hearing.  This article examines two recent significant cases, which provide learnings from both jurisdictions.

Recent decisions

Federal

Section 46P of the Australian Human Rights Commission Act 1986 (Cth) allows complaints about discrimination, unlawful under federal legislation, to be made to the AHRC. Once the AHRC receives the complaint, they will attempt to facilitate the resolution of the complaint by conciliation. If certain criteria are satisfied, the President of the AHRC can terminate a complaint.  An applicant can then apply to the Federal Circuit and Family Court of Australia (FCFCoA) or the Federal Court of Australia (FCA) to have the matter heard.

In a 2023 decision by the FCA, a former chief accountant successfully appealed a decision of the Federal Circuit and Family Court, walking away with almost five times more than the original award of damages, and an award for economic loss.

In 2018, the Appellant, then 68 years old, was told that the organisation had a retirement age of 65 and was asked when he would retire. Despite the Appellant arguing that this was unlawful, and that he would provide three months’ notice of his retirement, the former employer proceeded to employ someone to assume the Appellant’s role. After the Appellant gave a retirement date of July 2019, he was informed that his contract would end on 31 December 2019, and from 1 January 2019, he would be put on a new contract under which he would be required to train the employee who would be assuming his position. The Appellant said he left work in distress and did not subsequently return to work.

In November 2019, the Appellant commenced proceedings in the FCFCoA alleging age discrimination and constructive dismissal. He claimed the discrimination caused him to suffer a psychiatric injury. At first instance, the Judge found that the former employer had unlawfully discriminated against the Appellant and ordered an apology and payment of general damages of $20,000.

The Appellant filed an appeal and submitted that the decision in respect of the quantum of damages awarded as general damages was manifestly inadequate, and that there was error in failing to also make an award of damages for economic loss. The FCA upheld the appeal, increased the general damages to $90,000 and made an award for economic loss in the amount of $142,215.56 plus interest.

State

Section 87A of the Anti-Discrimination Act 1977 (NSW) allows complaints about discrimination to progress to ADNSW. When a complaint is made to ADNSW, a process similar to that conducted by the AHRC is followed. If a complaint is not resolved, or is declined, the complainant may request AD NSW to refer the matter to the NSW Civil and Administrative Tribunal (NCAT).

In a recent application before NCAT, a permanent full-time truck driver was regularly required to work on Saturdays until he took a short period of leave following a work-related injury.  The employee complained to ADNSW that the failure to roster him on Saturdays after his injury amounted to unlawful disability discrimination. When the complaint did not resolve by way of conciliation, he sought to make out his case, on the balance of probabilities, before NCAT.  NCAT was then required to determine whether the employer treated the employee less favourably, in the same circumstances or in circumstances that were not materially different than it treated its other employees who did not have the disability.

When the evidence was tested, NCAT accepted that Saturday work was not offered as a matter of fact. However, NCAT determined that it was not offered because the work was not available, and not otherwise because of the applicant’s protected attribute, being his disability. The employee did not lead any evidence that another employee, in the same or similar circumstances, was provided with the Saturday work during the relevant period. Accordingly, the employee failed to establish that he was denied work on the grounds of his disability.  As the onus was on the employee as the person bringing the proceedings, the application was dismissed. 

Key takeaways

While the two cases had different outcomes, there are consistent themes between them.

• The damages awarded in discrimination cases by courts and tribunals continue to increase.  This reflects the changing attitudes in the community and the general deterrent function of damages.
• Leaders and decision-makers should receive targeted training to increase awareness of employee rights. This will enable them to take these rights into account when making decisions and operational plans, avoiding decisions—directly or indirectly—that are contrary to workplace rights and employment protections.
• Organisations should maintain detailed and contemporaneous records of the internal processes followed when making adverse decisions about employees.  This will provide evidence of the decision-making processes and may help refute any alleged accusation of discrimination.