Balancing the Act: ADCQ newsletter -
Victimisation under Qld anti-discrimination law
This article by Susan Booth (Legal Adviser, Anti-Discrimination Commission Queensland) first appeared in Balancing the Act Issue 4, November 1998 page 5.
'Victimisation is a serious matter and can be dealt with even when the original complaint is not successful'.
Under Queensland's Anti-Discrimination Act 1991 (the Act) victimisation is an unlawful offence. Victimisation provisions also protect a complainant who refuses to do something that would be unlawful under the Act. The person threatened or harassed may lodge a complaint of victimisation. Such complaints are treated in the same way as other complaints under the Act. It is important to note that even if the original complaint of discrimination or harassment does not continue, the complaint of victimisation can continue.
Acts of victimisation are subject to penalty provisions - in the case of an individual 45 penalty units or imprisonment for 3 months; in the case of a corporation 170 penalty units (at the time of writing a penalty unit under Queensland law is $75.00). Sections 129 - 131 of the Queensland Anti-Discrimination Act 1991 the Act) deal with victimisation.
A recent Anti-Discrimination Tribunal Queensland case illustrates the victimisation provisions in anti-discrimination legislation. The case is Abo El Wafa V Jim England and Kennedy Taylor (Queensland) Pty. Ltd (H97 of 1996).
The complainant was employed as an electrical engineer by Kennedy Taylor from 30 January 1995. He complained that he was the victim of racial discrimination in his employment primarily through the conduct of the company's former state manager. He complained that because of his complaint to the Anti-Discrimination Commission in February 1996 he was victimised by being dismissed and being refused a reference by the company.
The Tribunal found that the complaints about comments made to the complainant by the first respondent were not established, in that the remarks to which he took offence either were not made as he perceives them to have been made, or to the extent that they were made were a misconceived attempt at camaraderie, which did not amount to less favourable treatment.
In relation to the failure to provide a reference, the Tribunal held that the refusal of the second respondent to provide a reference because of the complainant's involvement in these proceedings against the company was a contravention of the Act amounting to victimisation. The second respondent was ordered to provide the complainant with a detailed reference and to pay $5,000 for compensation.
As this case illustrates, victimisation is a serious matter and can be dealt with even when the original complaint is not successful. In cases where a person in the course of their work is alleging discrimination or sexual harassment, employers are well advised to exercise care when dealing with the allegations. Employers must attempt to ensure that the complainant or any person who may be a witness or who may provide information about the complaint is not subjected to any acts or threatened acts of victimisation. As with complaints of discrimination or sexual harassment, employers can minimise their vicarious liability by endeavouring to take reasonable steps to prevent victimisation. These may include ensuring that all staff and supervisors are trained about sexual harassment and discrimination (including victimisation), and their prevention; establishing an effective, confidential complaints procedure; and treating all complaints seriously, and investigating them promptly and confidentially.
During the 1997/98 financial year, victimisation comprised 2% of complaints to the Anti-Discrimination Commission. While this figure may be considered as relatively small, the case of Mr Abo El Wafa clearly illustrates that complaints of victimisation can have costly implications for employers and individuals. Victimisation like other types of complaints should be prevented at all costs.