Interim orders before referral
A person who had made a complaint to the ADCQ alleging discrimination on the basis of family responsibilities by her employer proposing to change her work hours/arrangements, applied to the tribunal for orders to stop the changes pending the outcome of her complaint. The complainant argued that if her complaint was not resolved at conciliation in the ADCQ, her employment would be terminated because she could not accept the changes, and any subsequent remedy would be of little value.
The tribunal said that on its face, section 144 'involves the exercise of a wide discretionary power to make orders directed to the maintenance of the status quo for the purpose of enabling the processes provided under the ADA to be effectively pursued, and to maximise the opportunity for its objectives to be achieved. Those objectives include protection from unfair discrimination, the investigation of complaints in which discrimination is alleged, and if the commissioner believes resolution by conciliation is possible, attempts to do so.' It said that at this early stage, the nature of any possible prejudice is likely to lack precision, which is recognised by the use of the word 'might' in the section.
The tribunal was satisfied there was a risk that if the new system is introduced the complainant would lose her job, the prospects of conciliation would likely be adversely affected, and the nature of any remedies may be diminished because reinstatement under the new system is not something she can seek. Any uncertainty attached to those risks did not make them too remote or unlikely.
As to the tests for an injunction, the respondents conceded the complainant had an arguable case. The issue would be the reasonableness of the term. The balance of convenience was argued by both parties on the basis of financial impact for both of them.
The tribunal decided that the financial impact of denying the interim relief should prevail over the effects the employer could suffer if it is granted. The tribunal also said it was material that because the complainant is not an Australian citizen she would not be able to rely on Centrelink benefits if she loses employment. The tribunal ordered that the respondents are prohibited from altering the applicant's present hours of work until further order.
(Source: ADCQ annual report 2012-13)