Remedies for discrimination

Contributed by Victorian Equal Opportunity and Human Rights Commission and current to June 2019

This chapter discusses remedies ordered following determinations by the Victorian Civil and Administrative Tribunal (VCAT). Possible outcomes for complaints under the Equal Opportunity Act made to the Victorian Equal Opportunity and Human Rights Commission (the Commission) are considered. The payment of compensation, or damages, at the Commission and VCAT is also discussed.

Outcomes and remedies

When a complaint under the Equal Opportunity Act is successful, there are a number of remedies open to the complainant.

Remedies available at VCAT

Section 125 allows VCAT to make any order it considers will prevent the unlawful conduct continuing, compensate the complainant or address any loss, damage or injury suffered by the complainant.

If VCAT finds a person has breached the Equal Opportunity Act it can make any one or more of the following orders under Section 125(a):

(i) an order that the person refrain from committing any further contravention of this Act;
 
(ii) an order that the person pay to the [complainant], within a specified period, an amount [VCAT] thinks fit to compensate the [complainant] for loss, damage or injury suffered in consequence of the contravention; or
 
(iii) an order that the person do anything specified in the order with a view to addressing any loss, damage or injury suffered by the [complainant] as a result of the contravention.

This forms the basis for the remedies available to a complainant. Under section 125b VCAT can also take no further action, even though there was a breach of the Equal Opportunity Act.

Examples of remedies ordered by VCAT include: These examples are discussed further below.

The remedies that can be ordered by VCAT for a breach of the Racial and Religious Tolerance Act 2001 (Vic) (RRTA) are in similar terms to the remedies available under the Equal Opportunity Act. Remedies under the RRTA are discussed in more detail in the chapter on Racial and religious vilification.

Conciliated outcomes at the Commission

The Commission's dispute resolution process enables a complainant and respondent to reach an agreement about resolving the complaint. The types of outcome sought may be guided by what remedies are available at VCAT. However, parties to dispute resolution are not limited to these options. Many complaints are resolved at conciliation and outcomes may include:
  • an apology (verbal or written, private or more public)
  • financial compensation
  • a job reinstatement or reference
  • access to a previously denied job opportunity or service
  • an agreement to change or stop behaviour
  • an agreement to amend or develop policies
  • an agreement to undertake human resources and equal opportunity training.

Examples of conciliated outcomes at the Commission

Sex discrimination in the area of goods and services - employee training
The complainant was advised by a sales person that he was looking in the women's clothing section of the respondent retail store. When the complainant responded he was aware of this, the sales person asked him to leave as he was embarrassing the other customers. He was also told not to shop there in the future. The complainant felt humiliated and left the store. He considered if his female partner went there to buy male clothes nothing would have been said to her. When notified of the complaint, the respondent agreed to participate in dispute resolution. The parties reached an agreement that the respondent would provide equal opportunity training for all staff.

Sex discrimination and sexual harassment in the area of employment - compensation
The complainant alleged her male work colleague would often make comments or act in an inappropriate sexist manner. As she was working in a male-dominated industry, she ignored this behaviour as she felt she could not voice her concerns. She alleged the colleague grabbed her on the bottom and made comments to others about her being loose, humiliating her at a work function. When she told him she was upset about his behaviour he replied it was just a joke. When notified of the complaint the respondent agreed to participate in dispute resolution resulting in an agreement that the respondent pay the complainant $15,000.

Gender identity discrimination in employment - compensation and employee training
The complainant worked for the respondent on a short-term contract and applied for a permanent role. She was transitioning from male to female and asked her employer to use her new legally recognised name. The complainant requested this name change on several occasions however her employer asked her to stop trying to inform people about the name change and let them adjust at their own pace. When she insisted she had a legal right to change her name, the complainant was told perhaps she was not the type of person they wished to employ. Soon after the complainant was informed the permanent position was not going to be offered to her and she could continue on contract for one more month. When notified of the complaint the respondent agreed to participate in dispute resolution. The parties reached an agreement for the respondent to pay the complainant $6000 and provide LGBTI+ training to all staff.

Religious belief/activity in employment - roster changes
The complainant worked shift work for a health provider and alleged he was rostered to work the Sabbath (Saturday). This was against his religious belief/activity, being a Seventh Day Adventist. When notified of the complaint the respondent agreed to participate in dispute resolution. The parties reached an agreement for the respondent to not roster the complainant to work on Saturdays.

Disability discrimination in the area of goods and services - improve physical accessibility
The complainant used a mobility scooter and alleged she had difficulty accessing a shopping centre complex as there were no kerb ramps leading to some shops. She had to travel on her mobility scooter on the road behind cars to access a pedestrian crossing. When notified of the complaint the respondent agreed to participate in dispute resolution. The parties reached an agreement for the respondent to install kerb ramps to permit access to footpaths. The respondent also created increased disability car parks near some shops to increase accessibility.

Race discrimination in employment - compensation
The complainant alleged she was subjected to comments about her race by a work colleague. The comments included they did not like people of her Middle Eastern background and she was not a real Australian as she was not born in Australia. When notified of the complaint the respondent agreed to participate in dispute resolution. The parties reached an agreement for the respondent to pay the complainant $15,000 general damages.

Sex discrimination in sport - new policies and guidance
The complainant's daughter played in an under 12s mixed football team. He alleged the female players had played half a game at the most and sometimes played less than two minutes on the field. He had complained to the coach who said he did not think boys and girls should play together and he would select whoever he wanted to play. When notified of the complaint the respondent agreed to participate in dispute resolution. The parties reached an agreement for the respondent to review and implement codes of behaviour and conduct for coaches, players and parents. A new position was established to oversee the behaviour of coaches, players and parents. The coach decided to leave the Club.

Age discrimination in the area of employment and discriminatory information request - apology and change to practice
The complainant wished to apply for a position as area manager for a retail chain. The application form asked for a qualification and required him to select the year that he obtained his qualification. The drop down list only went as far back as 1995. The complainant completed his degree in 1976 and was unable to complete the application and was denied the opportunity to apply for the position. The respondent agreed to dispute resolution. The respondent stated the drop down list was an oversight. The application form had been updated, and the drop down box replaced with a free text entry field. The respondents expressed their sincere apologies to the complainant for any inconvenience caused and invited him to apply for the role. The complainant was satisfied with the action taken by the respondent and the matter was resolved.

Disability discrimination in the area of goods and services - review of practices
The complainant was admitted to a psychiatric ward as an involuntary patient. He alleged staff on the ward did not give him information about his rights, let him make any decisions or let him access his phone or a computer. The respondent stated to the Commission that it followed its set procedures when admitting the complainant while he was an involuntary patient. However, they did agree to participate in dispute resolution to discuss the complainant's admission and its processes. This provided the complainant an opportunity to raise and discuss his concerns with the respondent. As a result, the respondent committed to reviewing some of their practices. The complainant was satisfied he was able to meet with the respondent and considered his complaint resolved.

Marital status in the area of employment - statement of regret and policy change
The complainant was employed in the travel industry. She applied under her employer's staff travel policy to travel overseas at a reduced cost with her de facto partner. Her employer denied her application on the basis that she was not legally married to her partner. As a result, the complainant had to purchase full fare tickets for her partner. When contacted about the complaint the respondent agreed to attend a conciliation conference. At the conciliation conference the respondent explained a staff member had misread its staff travel policy which resulted in the complainant's reduced travel application being denied. The respondent acknowledged that the application should have been approved and expressed its regret at the hurt and inconvenience the complainant experienced. The respondent agreed to refund the cost of the ticket purchased by the complainant. In addition, the respondent changed its staff travel policy wording (which had previously stated that staff must be married to be eligible for discounted fares) and extended it to include de facto relationships.

Disability in the area of education - adjustments to school excursion arrangements
The complainant's son has an intellectual disability and wanted to attend school camp. She sought permission from the school to stay near the camp during the day, and for her son to stay overnight with her and be dropped back to the camp the following day. This request was based on her son's integration aide not attending the school camp and her concerns about her son's bedwetting and having unsupervised access to food at night. The respondent denied the complainant's request, stating it felt her son was more than capable of attending the camp independently and that doing so would help his development. The school considered if the complainant collected her son at night this would highlight his disabilities and differences to other children. When notified of the complaint, the respondent agreed to meet the complainant to further discuss her request so that her son could participate in the school camp. Following this meeting, the school agreed to the adjustments sought by the complainant and the matter was resolved.

The examples above highlight the capacity for dispute resolution to achieve tailored and systemic outcomes that can have impacts beyond the parties to a complaint. Some outcomes act as a tool to achieve social change - for example, changes to policies and practices and training. The dispute resolution process can allow a complainant to seek a personalised remedy in a confidential and less adversarial forum. Respondents can explore creative options to resolve matters without the risk of stigma associated with a negative court finding against them.

Additional examples where conciliation resulted in payment of compensation are set out in Table 1: Damages awarded by VCAT under the Equal Opportunity Act 2008-2019.

Damages

Under the Equal Opportunity Act and the RRTA, a person can seek financial compensation (also known as damages) when they have suffered financial or physical (including psychological) loss because of unlawful conduct.

Damages can be ordered by VCAT under section 125(a)(ii) of the Equal Opportunity Act to compensate the complainant for loss, damage or injury suffered as a consequence of the discrimination. Similarly, damages can be ordered under section 23C(ii) of the RRTA to compensate an complainant for loss, damage or injury suffered as a consequence of the vilification.

Importantly, this means there must be a connection between the loss and the unlawful conduct for an award to properly be made. In assessing damages, each case will be determined on its own merit.

In Obudho v Patty Malones Bar Pty Ltd [2017] VSC 28 a nightclub was found to have discriminated against the complainant, a music promoter of African origin, when it cancelled his booking at the venue for an African music themed event. The nightclub had cancelled the event after it learned the event was to be titled 'Africa Fest'. It claimed this meant the nightclub would have to engage additional security to comply with local guidelines for 'culturally specific' events. VCAT rejected this argument and found there was no legal requirement to comply with the guidelines. VCAT issued a declaration of discrimination, but did not award any damages to Mr Obudho because the nightclub had not discriminated against him as the organiser.

On appeal, the Supreme Court clarified what is required by the phrase 'in consequence of the contravention' in section 125(a)(ii). The Court noted the nightclub had contravened section 44 of the Equal Opportunity Act by refusing to provide services when it cancelled the room hire booking because of the race of the prospective patrons, which included each complainant. Applying the ordinary dictionary meaning to the phrase, Justice Emerton found Mr Obudho, was 'a victim of the discriminatory conduct constituted by the cancellation of the booking for the Africa Fest' and was 'entitled to compensation directed to putting him in the position that he would have been in had the booking for the Africa Fest not been cancelled' [37]. It did not matter whether he suffered loss as an event organiser or as a patron - what mattered was that he suffered loss was suffered 'in consequence of' the nightclub's breach of the Act. For this reason, Mr Obudho was entitled to compensation for his loss of profit on the Africa Fest. He was also entitled to compensation of $6000 for non-economic loss in the form of personal upset and humiliation [51].

The unlawful conduct in question need not be the sole cause of the loss or damage. However, the loss or damage suffered must be as a consequence of the breach of the Equal Opportunity Act. VCAT has indicated it may be possible for damages to be awarded where there have been multiple causes of loss or damage, despite some of those causes being unrelated to breaches of the Equal Opportunity Act. However, this is only if the complainant can demonstrate that the unlawful conduct was a cause of the loss or damage.(1)

Hall v A. & A. Sheiban Pty Ltd [1989] FCA 72 is considered a leading case in setting out the overarching principles for assessing damages in anti-discrimination claims. In that case, Justice Lockhart noted the closest analogy would be with the principles guiding damages for claims in tort, although:

[I]t is difficult and would be unwise to prescribe an inflexible measure of damage of cases of this kind and, in particular, to do so exclusively by reference to common law tests in branches of the law that are not the same, though analogous in varying degrees, with anti-discrimination law.
 
Generally speaking, the correct way to approach the assessment of damages in cases under s. 81 of the [Sex Discrimination] Act is to compare the position in which the complainant might have been expected to be if the discriminatory conduct had not occurred with the situation in which he or she was placed by reason of the conduct of the respondent [72]-[73].

In practice, this means a complainant should consider both financial loss and hurt and humiliation they have incurred as a consequence of the conduct. In assessing what might be appropriate as a compensatory amount, a court necessarily considers the general standards prevailing in the community (see Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82 [95]). This approach to damages has been followed in federal and Victorian jurisdictions.

Importantly, there is no upper limit on the amount of damages under the Equal Opportunity Act and the RRTA. This contrasts with other jurisdictions, such as unfair dismissal under the Fair Work Act 2009 (Cth) - see sections 392(5)-(6). However, any claim of damages will need to be justified with supporting evidence.

In Collins v Smith [2015] VCAT 1992 VCAT considered what compensation was payable for a proven complaint of sexual harassment in employment. On the question of compensation, the employer argued Victoria's worker's compensation legislation limited the amount of compensation VCAT could award under section 125(a)(ii) of the Equal Opportunity Act. This was because the personal injury suffered by the complainant arose out of, or in the course of, her employment. Justice Jenkins rejected this argument. Justice Jenkins determined the limits imposed by worker's compensation legislation do not apply in an action for damages for physical or mental injury under the Equal Opportunity Act. Further, Justice Jenkins endorsed the complainant's arguments that 'beneficial legislation, such as the Equal Opportunity Act, is to be interpreted beneficially to give effect to its objects' [50]-[51] and that any tension between the two legislative sources was to be resolved in favour of the specific provisions of the Equal Opportunity Act.

Categories of damages

As damages in anti-discrimination complaints are considered by VCAT and courts to be 'entirely compensatory' in nature (see Graeme Innes v Rail Corporation of NSW [No 2] [2013] FMCA 36 [160], citing with approval Qantas Airways v Gama [2008] FCAFC 69 [94]) the two main types of damages are:

  • 'special damages', which relate to economic or financial losses (past or future) -for example, loss of wages or out of pocket expenses such as medical expenses
  • 'general damages', which relate to non-economic losses (past or future) - for example, compensation for hurt, humiliation and injury to feelings or for diagnosed psychological injury or physical illness that have been caused or exacerbated by the discriminatory treatment. In Burns v Media Options [2013] FCCA 79 [1782], for example, the court found the respondent's discriminatory conduct exacerbated the complainant's pre-existing mental illness.

Other types of damages exist, but are not as commonly awarded. 'Aggravated damages', for example, may be awarded in circumstances where there is clear evidence that the person who committed the discrimination has been 'high handed, malicious or oppressive', and has been 'calculated to increase the hurt suffered by the complainant'. See Hall v A & A Sheiban Pty Ltd [1989] FCA 72 [75], citing Alexander v Home Office [1988] 2 All ER 118.

The Supreme Court observed in Spencer v Dowling [1996] VSC 51; [1997] 2 VR 127, [144] that the intention of the Equal Opportunity Act 1984 was to provide a sum of damages to compensate the complainant for loss. The Court thus considered the damages have to be compensatory, as distinct from punitive, in nature. However:

an award of compensation under the Act will often comprehend an award for hurt, humiliation and injured feelings caused by the discriminatory conduct of the respondent, there is little doubt that, contained within the board's power, is a capacity to aggravate such compensation where the conduct, in committing the discriminatory act, has been high handed, malicious or oppressive and has been calculated to increase the hurt suffered by the Complainant [144]-[145] (citations omitted).

For this reason, VCAT has considered aggravated damages are part of the compensation scheme in the Equal Opportunity Act (see Coyne v P & O Ports [2000] VCAT 657). Section 125 of the Equal Opportunity Act provides that VCAT may order a respondent to pay compensatory damages, 'an amount VCAT thinks fit to compensate the complainant for loss, damage or injury suffered in consequence' of breach. The section does not spell out how damages may be measured.

For example, aggravated damages were claimed in Delaney v Pasunica Pty Ltd [2001] VCAT 1870 (Delany). VCAT refused to order them because the factors raised in support of aggravated damages were factors already taken into account in VCAT's award of general damages. VCAT was not satisfied there had been conduct on the part of the respondent calculated to increase the complainant's hurt and humiliation [51]-[55].

As set out above, damages in anti-discrimination matters are not intended to be punitive. 'Exemplary damages' are designed as a punishment for the party found guilty of unlawful conduct. They are thus generally not available for claims of discrimination, sexual harassment and victimisation. Also see, for example, Hall v Sheiban [1989] FCA 72 [78]-[83] and Phillis v Mandic [2005] FMCA 330 [26].

An award of damages will not include an amount for any legal expenses incurred, which are described as 'costs'. See the section on Costs.

Assessing special damages - financial loss

A number of factors can be considered in calculating an award of special damages to cover specific financial loss of a complainant as a result of the unlawful conduct. Examples include:

  • comparing the past earnings of the complainant before the unlawful conduct with the current earnings or future potential earnings of the complainant. Can any difference in income be attributed to the unlawful conduct? In other words, has the earning capacity of the complainant suffered as a result of the unlawful conduct? Is there total or partial incapacity? How long is the incapacity expected to last?
    See Burns v Media Options Group Pty Ltd [2013] FCCA 79 [1773]
  • can any other benefits of the job that the complainant is now unable to access be measured financially - for example, a promotion, rostered overtime, weekend penalty rates, special bonuses, share benefits, use of a mobile phone or car
  • has the complainant spent their own money on doctors and medical specialists because they have fallen ill or had a medical condition aggravated as a result of the unlawful conduct?
  • does the complainant have copies of their pay slips, receipts, invoices and proof of payment that can be provided as evidence of this loss?

An example of an itemised award of special damages for medical expenses can be found in Gama v Qantas Airways Ltd [No 2] [2006] FMCA 1767 [129]-[130].(2) Mr Gama was awarded damages to compensate him for breaches of section 9 of the Racial Discrimination Act 1975 (Cth) and section 15(2)(d) of the Disability Discrimination Act 1992 (Cth). Mr Gama claimed damages for attendance at medical appointments, travel to medical appointments and medication costs, for the past and future. Mr Gama was awarded a 20 per cent contribution towards these costs by way of special damages, comprising:

  • $1350 for 20 per cent of the cost of the doctor's appointments and $945 for 20 per cent of the cost of travel to date of hearing
  • $2831 for 20 per cent of medication costs taken to date of hearing
  • $3150 for 20 per cent of future doctor's appointments calculated at 15 visits per year for seven years
  • $3603 for 20 per cent of future medication costs for seven years
  • interest on those amounts (taking into account Mr Gama would have received a Medicare rebate) [129]-[130].

In support of his claim for past and future medical expenses, Mr Gama provided a sworn affidavit setting out how much he had spent on medication to date, and for how long he was required to take the medication in the future. Mr Gama further provided evidence of his travel costs for attending medical appointments, and the expected period he would need to continue to see his doctor. Mr Gama's doctor also provided oral evidence of Mr Gama's attendance at her consultancy [102]-[103].

Mr Gama also received $40,000 as a 20 per cent contribution towards general damages and 9 percent interest on that amount [127], [131]. Also see Qantas Airways Limited v Gama [2008] FCAFC 69 [99].

If a complainant is claiming economic loss for lost or reduced wages, it is relevant whether they are currently receiving any salary/wages, leave payments or insurance payments such as worker's compensation, and the amount they are receiving. Any damages awarded are likely to be offset and, therefore, reduced by any income or payments received or even potentially accrued entitlements. See, for example, Howe v Qantas Airways [2004] FMCA 242 [133] where the Federal Magistrates Court found the complainant was not entitled to the benefit of the sick leave accrued during the period of unpaid maternity leave, as her award of damages was intended to compensate her for not being granted sick leave. The respondent was, therefore, entitled to offset the equivalent amount of salary from the calculation of damages for each day of sick leave accrued during her maternity leave.

Tax may also be payable on any damages awarded as economic loss. See Mayer v Australian Nuclear Science and Technology Organisation [2003] FMCA 209[92]-[93]. It may be considered taxable income or an 'employment termination payment' under section 82-130(1) of the Income Tax Assessment Act 1997 (Cth) if it is paid as a consequence of termination of employment.

Mitigation of loss

Whether a person is currently earning is also relevant to show they have met their legal obligation to 'mitigate their losses'. A complainant has a duty to take steps to improve their situation and make their financial loss less severe. If the person has left their job because of unlawful conduct in breach of the Equal Opportunity Act, or if they were fired unlawfully, for example, whether the person has looked for another job to 'mitigate' their loss of income will still be considered. Where a person has been unable to mitigate their loss - for example because of injury or illness - evidence of that reason must be available for VCAT to consider.

A person may not be working because they have chosen to take unpaid leave such as parental leave. VCAT and courts are unwilling to order damages to cover that period of leave. This is because the loss of earnings of the complainant is not attributable to the conduct of the respondent. See Howe v Qantas Airways [2004] FMCA 242 [366].

Assessing general damages

While economic damages can be calculated by reference to money spent or lost as a result of the unlawful conduct, hurt and humiliation is often harder to calculate. The principle VCAT and the courts use to assess hurt and humiliation was summarised in Galea v Hartnett - Blairgowrie Caravan Park [2012] VCAT 1049 by VCAT Member Dea, citing Hall v A & A Sheiban Pty Ltd [1989] FCA 72:

The starting position in relation to awards for prohibited discrimination for injury to feelings (also referred to as non-economic loss), is that the amount should not be minimal, as that would trivialise or diminish respect for the public policy to which the Equal Opportunity Act gives effect. On the other hand, awards ought not be excessive, as that would also damage respect for that public policy [83].

In GLS v PLP (Human Rights) [2013] VCAT 221 Justice Garde held an award of general damages should be made 'as appropriate for the individual case having regard to the facts and circumstances and the contraventions proved' [274].

Importantly, unless there is clear evidence of significant psychological or physical injury, VCAT (and the courts) have been unwilling to make orders for large sums in the hundreds of thousands of dollars as compensation for hurt and humiliation.

However, more recent decisions have shown greater appreciation of the impact of discrimination. Courts have acknowledged the 'community has generally gained a deeper appreciation of the experience of hurt and humiliation that victims of sexual harassment experience and the value of loss of enjoyment of life occasioned by mental illness or distress caused by such conduct'. See Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82 [117]. This approach has been adopted in VCAT, and considered to apply to sexual harassment and discrimination cases. In Collins v Smith [2015] VCAT 1992 Vice President Justice Jenkins said:

The significance of the decision in Richardson's case can be summarised as follows:
 
a) It recognises that community attitudes regarding the impact of sexual harassment has changed, in particular, that the adverse consequences of sexual harassment can extend to loss of employment and career; severe psychological illness; and relationship breakdown;
 
b) When determining compensation there is no basis for treating differently the consequences of sexual harassment on the one hand and workplace bullying on the other;
 
c) Substantial compensation for sexual harassment is not dependent upon demonstrable incapacity where the evidence otherwise demonstrates a substantial impact upon enjoyment of life;
 
d) Provided there is a sufficient connection between an employee's departure from a particular employer and the unlawful conduct, including how the employer deals with that conduct, a court is likely to award compensation for any resulting economic loss; and
 
e) The principles applied to sexual discrimination may be equally extended to other forms of discrimination [148].

The amount awarded for hurt and humiliation will depend on the circumstances. The following factors, for example, may influence the amount of damages:

  • whether the perpetrator of the unlawful conduct has a position of power and control over the complainant, by reason of their age or job
  • if the unlawful conduct occurred in a public place (including a workplace) that resulted in the complainant being humiliated in front of other people
  • if there are other factors that have made the hurt and humiliation worse for the person, such as a breach of privacy
  • if the unlawful conduct affected the person's health and particularly their mental health, and the level of seriousness of the mental or physical anguish as supported by medical evidence such as a doctor or specialist's report.

In Ewin v Vergara [No 3] [2013] FCA 1311 the Court awarded $110,000 general damages, which included a punitive component:

In my view the compensatory damages which I propose to award are not inadequate to punish Mr Vergara for the entirety of his unlawful conduct and to deter him and others from engaging in similar conduct [684].

Examples of general damages from VCAT, as well as examples of general damages negotiated in conciliated outcomes, are set out below under Damages awarded by VCAT.

Tax treatment of general damages

A complainant seeking compensation for hurt and humiliation may seek advice from a financial advisor about the tax implications of a payment or settlement.

The Australian Taxation Office has previously commented 'the determination of the character of a compensation payment, and in particular whether it is liable to tax in the hands of an employee, depends upon the nature of the payment.(3) The Australian Taxation Office ruled a payment made by an employer to an employee as compensation in anti-discrimination matters for injury to feelings is usually considered a capital payment, and is not subject to income tax or capital gains tax.(4)

However, where the payment is made as a consequence of termination of employment, it will be a taxable 'employment termination payment' unless the requirements of section 82.135(i) of the Income Tax Assessment Act 1997 (Cth) are met. To not be an 'employment termination payment', an identifiable amount must be paid specifically for, or in respect of, a personal injury, and be a reasonable amount having regard to the nature of the personal injury and its likely effect on the complainant's capacity to derive income from personal exertion.(5)

This was the issue in An Employee v Federal Commissioner of Taxation [2010] AATA 912 (An Employee v Federal Commissioner of Taxation) The complainant claimed his employer had breached the Age Discrimination Act 2004 (Cth) in requiring his retirement at the age of 65. He also alleged a breach of contract, and bullying and harassment by senior officers. The complainant claimed he had suffered post-traumatic stress disorder as a result. The parties settled the dispute in a settlement agreement for the amount of $395,000. This case considered how the settlement amount should be classified for taxation purposes.

In a private ruling, the Commissioner of Taxation found the payment was made as a consequence of termination and, therefore, the entire payment was an 'employment termination payment' under section 82.130(1) of the Income Tax Assessment Act 1997 (Cth). The complainant appealed that decision, submitting that section 82.135 applied as the payment was made in respect of a personal injury suffered as a result of the age discrimination.

The Administrative Appeals Tribunal (AAT) affirmed the Commissioner's decision, finding the payment was made as a consequence of the appellant's termination and was an 'employment termination payment', as the payment would not have been made if not for the termination. Termination need not be the dominant reason, but provided the payment follows as an effect or result of the termination, it will be considered to be a consequence of termination [12]-[17], citing Reseck v Commissioner of Taxation [1975] HCA 38; McIntosh v Federal Commissioner of Taxation (1979) 25 ALR 557, 560; Le Grand v Commissioner of Taxation [2002] FCA 1258 [63].

The AAT further found section 82.135 did not apply, for two reasons. First, the appellant's compensation payment was 'a single, undissected lump sum with no attribution of any portion of it to any of the various heads of relief claimed by the taxpayer' (An Employee v Federal Commissioner of Taxation [20]). Second, the AAT considered even if the hurt and humiliation claimed by the appellant amounted to 'personal injury', given the employer had denied liability in the settlement, there had been no agreement that 'personal injury' had occurred. As a result, the payment could not genuinely amount to a payment for personal injury under section 82.135 [22], citing Dibb v Commissioner of Taxation [2004] FCAFC 126.

However, in The Public Servant v Commissioner of Taxation [2014] AATA 247, another private ruling, the AAT considered a claim where a public servant and her employer had resolved a claim of discrimination alleged to have occurred through the course of employment. The resolution between the parties included the payment of $15,000 for general damages, which the public servant described as a 'compensation payment to myself for pain and suffering and the worsening of a pre-existing medical condition I have as a result of the discrimination' [15]. The AAT stated if it had jurisdiction to do so, it would have found the payment 'was in its entirety compensation for the … discrimination and the injury she suffered in the course of her employment' [59]. However, the Commissioner's ruling that the payment was an employee termination payment could not be challenged because of the limits of the statutory appeal scheme.

Eggshell skull rule

In assessing damages, a discriminator or wrongdoer must take the complainant as they find them, at the time the unlawful conduct occurs. This is called the 'eggshell skull' rule.

However, in applying the rule and considering the complainant's physical and mental state in assessing the appropriate quantum of damages, the courts are unwilling to consider notions of 'normal fortitude' of complainants as a threshold to receiving damages. Nor are notions of 'reasonableness' by reference to a person's psychological make-up considered in relation to the resulting compensation awarded.

In South Pacific Resort Hotels Pty Ltd v Trainor [2005] FCAFC 130 the respondent argued the complainant was precluded from seeking damages for a complaint of sexual harassment, because she was not of 'normal fortitude' and had not previously disclosed a mental condition to the employer. The respondent considered it was unfair to be ordered to pay compensation when the extent of the complainant's mental injury was unforeseeable. It argued the notion of what a reasonable person would anticipate should be carried through into an assessment of damages [44]-[45].

The Magistrates Court at first instance and the Full Federal Court on appeal both rejected this argument. The Full Federal Court considered the argument ignored the separate statutory schemes for defining and finding discrimination on one hand, and the power to order compensation on the other. The Full Federal Court also warned against the inclusion of the notion of 'normal fortitude' into discrimination law [46], [51]-[52] as it was:

[C]apable of misuse in support of the false idea - perhaps hinted at rather than stated bluntly - that some degree of sexual harassment (or some other form of unlawful discrimination) would and should be accepted by persons of normal fortitude [51].

The Full Federal Court dismissed the appeal, and the Magistrates' award of $17,536.80 to the complainant was upheld. That award was made up of $5000 general damages, $1907.50 for medical treatment, $5000 for past loss of income, $1564.65 for interest and $2500 for future economic loss.

The application of the 'eggshell skull rule' in Victorian anti-discrimination cases was reinforced by Deputy President McKenzie in Styles v Murray Meats Pty Ltd [2005] VCAT 914 (Styles). Styles related to a complaint of sexual harassment and sex discrimination. The complainant had been sexually abused by her father and subjected to physical violence by her mother for a number of years as a child and teenager. Evidence provided to VCAT was that as a result, she suffered from chronic but fluctuating anxiety, depression, chronic pain disorder, panic disorder and 'a predisposition to react strongly in situations of sexual harassment' [99].

Deputy President McKenzie upheld the sexual harassment complaint and awarded the complainant $8000 in general damages for embarrassment, loss of self-esteem, stress, and aggravation of previous medical conditions. In doing so, Deputy President McKenzie noted:

I pause here to say that in my view, in cases under the Equal Opportunity Act, one must take the victim as one finds the victim. Loss is still compensable even though the victim may, because of some earlier condition or event, be more than ordinarily sensitive to the particular conduct [100].

Also see Gordon v Commonwealth of Australia [2008] FCA 603 [119].

A pre-existing condition that makes a complainant more sensitive, vulnerable or pre-disposes them to developing a psychological injury cannot be held against them in calculating damages for unlawful conduct. Instead, the discriminator is liable for the full extent of their injuries even if the injuries are greater than someone with a 'normal' disposition may have suffered.

Damages awards by VCAT

Considering case law examples is useful when assessing what level of damages may be appropriate in a particular case. However, the Federal Court has warned care needs to be taken in making such comparisons. Particular acts should not be 'rated' and the complainant's individual circumstances must be specifically referred to and considered. See Phillis v Mandic [2005] FMCA 330 [26].

A complainant can seek damages at conciliation with the Commission. Decisions of VCAT and other jurisdictions can be used to assist with formulating their complaint and negotiating an outcome.

The level of damages awarded by VCAT and its predecessor, the Victorian Anti-Discrimination Tribunal (VADT) has varied significantly over time. However, the cases do show VCAT is more likely to make a higher award of general damages where:

  • there is discrimination, sexual harassment or victimisation between persons with an imbalance of power
  • there is the ability for the unlawful conduct to influence the person's ability to gain ongoing employment or reputation
  • that unlawful conduct results in psychological injury supported by medical evidence.

In 1998, for example, VADT ordered $125,000 in damages in McKenna v State of Victoria [1998] VADT 83 for the complainant's exposure to:

[C]onsiderable pain and suffering, to debilitating physical symptoms, to mental breakdown, to humiliation, loss of self esteem and of self confidence, and to loss of normal enjoyment of her professional and private life [6.1].

VADT noted the award was relatively large for the Victorian anti-discrimination jurisdiction. However, VADT considered the unlawful actions, which included sexual harassment, sex discrimination and victimisation in employment, were very serious in nature and had been 'initiated, supported or endorsed at high levels' of the employing organisation [7]. This outcome was upheld on appeal to the Supreme Court of Victoria in State of Victoria v McKenna [1999] VSC 310.

In Delaney v Pasunica Pty Ltd [2001] VCAT 1870VCAT upheld a complaint of sexual harassment and sex discrimination. It ordered $25,000 in general damages, $3617.60 in special damages (loss of earnings) and $871.50 for medical expenses. It also ordered the respondents pay the complainant's costs for one day's hearing on County Court Scale A to be taxed in default of agreement.

The complainant, Ms Delaney, was 16 years old and in the first weeks of her first job as a sales assistant and kitchen hand at a roast chicken shop. Ms Delaney alleged her 40 year-old employer, Mr Daley, made inappropriate sexual comments about her body, made sexual advances on her, kissed her against her will and requested sexual favours from her. Ms Delaney provided evidence about the effects this conduct had on her from her family doctor, a qualified social worker, a sexual assault counsellor and a consultant psychiatrist. VCAT was satisfied Ms Delaney had suffered an ongoing adjustment disorder, with associated anxiety, hurt and humiliation. It accepted Ms Delaney had been unable to work for periods of time because of this disorder, as a direct result of the conduct. VCAT considered the power imbalance between Ms Delaney and Mr Daley, and Mr Daley's intimidation and oppressive behaviour towards Ms Delaney, was of particular importance [50].

In Tan v Xenos [No 3] [2008] VCAT 584 VCAT awarded $100,000 for hurt and humiliation for a complaint of sexual harassment by a neurosurgeon against a neurosurgeon registrar. The damages awarded took into consideration the way the respondent had defended the claim, which had aggravated the suffering of the complainant (although aggravated damages were not awarded). The seriousness of the treatment of the complainant by the respondent, who was in a position of great power over the complainant in relation to her training and career progression, was also considered. However, no evidence was provided that any loss of income had resulted from the conduct, and so no award of special damages was made.

In contrast, in Duma & Mader International Pty Ltd [2007] VCAT 2288 VCAT upheld a complaint of indirect discrimination in the area of employment on grounds of impairment. It awarded $4000 for hurt and humiliation and $418.26 for lost income (comprising $383.72 for three public holidays at an hourly rate of $16.83 and superannuation contributions for those three days). The complainant had been absent from work on long-term sick leave due to a work-related injury and depression. His employer wrote to him requiring that he notify the company when he would be returning, and authorise it to contact his doctor to obtain information about his condition. VCAT considered the complainant could not comply with this condition because neither he nor his doctor knew when he would recover. VCAT considered the requirement was unreasonable in the circumstances, which included placing his employment in jeopardy after only three months absence where he was certified unfit for all duties due to the seriousness of his injuries [85].

VCAT noted while it was unreasonable for the employer to terminate Mr Duma at the point it did, VCAT was not satisfied he would ever have worked again because of his injury. There would have come a time where it was reasonable for the respondent to terminate. The only lost income Mr Duma was entitled to under the relevant award was three public holidays and superannuation on those days. Mr Duma's chronic pain and depression existed prior to the termination and could not be attributed to it. Nor were his injuries exacerbated by the termination. The level of general damages, therefore, could only reflect the hurt and humiliation arising from the embarrassment and upset of the unlawful termination [94]-[95].

As demonstrated in Collins v Smith [2015] VCAT 1992 [142], VCAT also now accepts the observations of the Full Federal Court in Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82 that community standards 'accord higher value to compensation for pain and suffering and loss of enjoyment of life than before' [96]. It also accepts there is no established reason for a disparity in the award of damages in other fields and the typical compensatory damages provided to victims of sexual discrimination and harassment [109].

In Kerkofs v Abdallah [2019] VCAT 259 Judge Harbison found Mr Abdallah liable for the sexual harassment of Ms Kerkofs and ordered that Mr Abdallah and his employer, Parker Manufactured Products Pty Ltd, jointly pay $130,000 to Ms Kerkofs for pain and suffering. Her Honour also ordered the employer to pay an additional $20,000 in aggravated damages.

In formulating the general damages award, Judge Harbison took into account Ms Kerkofs' diagnosis of ongoing post-traumatic stress disorder caused by the harassment, 'which will need to be controlled indefinitely by behaviour and medication'[254]. Her Honour also noted that Mr Abdallah had been in a position of authority with respect to Ms Kerkofs and that his behaviour had been 'extremely predatory' [261]. However, as the employer's insurer had separately accepted Ms Kerkofs' WorkCover claim, Judge Harbison did not take into account lost earnings or earning capacity.

In awarding aggravated damages, Judge Harbison had particular regard to the manner in which the director of the employer had conducted a three day cross-examination of Ms Kerkofs, in a process described by Her Honour as 'very gruelling indeed' [29]. The cross-examination had insinuated that Ms Kerkofs:

  • fabricated her complaints for financial reasons
  • had mental health issues due to a relationship breakdown, which impacted her credibility and affected the assessment of doctors
  • abused drugs
  • lied about her employment following the alleged harassment.

Judge Harbison found that none of these allegations were material to the case or supported by the evidence. The following factors were also relevant to awarding of aggravated damages:

  • the failure of the employer to remain neutral or conduct an impartial investigation of Ms Kerkofs's allegations even after its own insurance company had approved her claim
  • the employer participating in 'witness contamination' by trying to undermine a witness' statement that it knew to be accurate and providing employees with access to the VCAT file of proceedings before they made statements
  • the way in which the employer had invaded Ms Kerkofs's privacy by making her submissions available on the company's intranet.
Judge Harbison noted that an award of damages in such a case must reflect the objects of the Equal Opportunity Act [256] and send a clear message that 'this type of behaviour is not acceptable at all in any workplace' [262].

Between August 2008 and February 2018, damages were only been awarded in 16 of the reported VCAT anti-discrimination decisions available on AustLII (summarised in Table 1 below).

These cases show that in each matter, the level of damages will be assessed on the facts and evidence available about the person's individual loss.

To date, VCAT has only awarded damages in one matter under the RRTA, Khalil v Sturgess [2005] VCAT 2446, discussed in the chapter on Racial and religious vilification. VCAT ordered the respondents to pay $7000 compensation.

Table 1: Damages awarded by VCAT under the Equal Opportunity Act 2008-2019

Name Date Summary Area Attribute Outcome
Kerkofs v Abdallah [2019] VCAT 259

22.2.19

Complaint of sexual harassment
Employment Not applicable $130,000 damages for pain and suffering

$20,000 aggravated damages
Black v Owners Corporation OC1-POS539033E [2018] VCAT 2014 20.12.18 Complaint of disability discrimination and failure to make reasonable adjustments was successful. Provision of services Disability

Orders to convert manual-operated doors to automatic operated doors to facilitate access to common property areas at an apartment block, including car park. $10,000 compensation.
Kibet v Empire Club [2018] VCAT 1868 6.12.18 Complaint of race discrimination in the provision of services - refusal of entry to a nightclub Provision of services Race $3000 for hurt and humiliation
Ferris v Department of Justice and Regulation [2017] VCAT 1771 13.11.17 Complaint of disability discrimination (indirect discrimination) against an employer was successful Employment Disability (diabetes) $0 the complainant was not awarded any damages. The reason given by VCAT was that the loss suffered by the complainant (suspending and terminating his employment) was not a consequence of the indirect discrimination claim.
Harrison v Department of Education and Training [2017] VCAT 1128 4.09.17 Complaint of disability discrimination and failure to make reasonable adjustment against an employer Employment $4,000 general damages Economic loss - payment equivalent to the wages the complainant would have received from 28.2.2013-14.5.2013 at the rate 0.4 of a full-time level 3 teacher together with any accrued leave benefits and entitlements
Ingram v QBE Insurance (Australia) Ltd [2015] VCAT 1936 18.12.15 Complaint of disability discrimination against insurance provider who refused to indemnify complainant based on mental illness and maintained a discriminatory exclusion Goods and services Disability

$4292.48 for economic loss $15,000 for non-economic loss
Collins v Smith [2015] VCAT 1992 23-12-15 Sexual harassment by employer to junior staff member and victimisation Employment Not applicable

Aggregate sum of $332,280 comprising:

$180,000 general damages

$20,000 aggravated damages

$60,000 past loss of net earnings and superannuation

$60,000 future loss of net earnings and superannuation $12,280 out of pocket expenses.
Butterworth v Independence Australia Services [2015] VCAT 2056 22.12.15 Complaint of failure to make reasonable adjustments and terminating the complainant's employment Employment Disability $3325.25 for economic loss
Obudho v Patty Malones Bar Pty Ltd trading as Inflation Nightclub [2015] VCAT 1521 07.10.15 Complaint that Patty Malones Bar cancelled a booking of a club section for an event when the nightclub owner became aware that many of the patrons would be of African descent. Goods and services Race Discrimination claim arising from complainants' planned attendance at the event was proven. Claim regarding cancellation and business losses dismissed. This matter was appealed in the Supreme Court.
Obudho v Patty Malones Bar Pty Ltd [2017] VSC 28 09.02.17 Appeal of VCAT decision Obudho v Patty Malones Bar Pty Ltd trading as Inflation Nightclub [2015] VCAT 1521 Goods and services Race $6000 compensation for economic loss and a further $6000 for non-economic loss
Dirckze v Holmesglen Institute (Human Rights List) [2015] VCAT 1116 10.07.15 Complaint by a student about being called 'a monkey' Education Race $3000 compensation for instance of proven racial discrimination
Bevilacqua v Telco Business Solutions (Watergardens) PL No 2 [2015] VCAT 693 11.03.15 Complaint of pregnancy discrimination against employer. Failure to make reasonable adjustments Employment Pregnancy $10,000 general damages for hurt and humiliation for proven claims of direct discrimination in making comments about taking sick leave and taking toilet breaks. Other claims dismissed.
Dziurbas v Mondelez [2015] VCAT 1432 11.03.15 Complaint of disability discrimination against employer who was not allowed to return to work after injury Employment Disability $20,000 compensation for injury to feelings.
Jemal v ISS Facility Services Pty Ltd [2015] VCAT 103 19.01.15 Complaint of discrimination being told he looked like a gorilla Employment Race $3000 compensation
Martin v Padua College (Correction) [2014] VCAT 1652 24.11.14 Complaint of being terminated from employment based on having engaged in lawful sexual activity with a former student who was an adult at the time the relationship started. Employment Lawful sexual activity

Total damages: $90,000

$80,000 for past economic loss. $10,000 for pain and suffering.
Slattery v Manningham CC [2014] VCAT 1442

23.10.14
Municipal council engaged in direct discrimination by maintaining a declaration prohibiting complainant from attending any council building Goods and services Disability $14,000 general damages.
GLS v PLP [2013] VCAT 221 13.3.13 Complaint by a mature aged graduate legal student of 14 instances of serious and sustained sexual harassment by her employer during a legal practice placement Sexual harassment by employer; sexual harassment in a common workplace (Not applicable in sexual harassment cases as stand-alone provision) Tribunal upheld 11 of the 14 complaints and awarded the complainant $100,000 for general damages on the basis of the serious psychological damage caused by the employer's conduct. No special were damages sought or awarded.
Galea v Hartnett- Blairgowrie Caravan Park [2012] VCAT 1049 18.7.12 Complaint that complainant refused accommodation at caravan park on basis of parental status Provision of accommodation Parental status $1000 for the distress caused by the refusal to provide accommodation and $90 for economic loss relating to travel costs
Cobaw Community Health Services v Christian Youth Camps Ltd [2010] VCAT 1613 8.10.10 Complaint that Christian adventure resort refused to take booking for youth group based on sexual orientation of attendees Services and accommodation Sexual orientation $5000 for hurt and distress caused by the unlawful discrimination of the respondents. Supreme Court of Appeal confirmed discrimination based on sexual orientation. High Court refused special leave to appeal against this decision.
Sammut v Distinctive Options Limited [2010] VCAT 1735 14.9.10 Sexual harassment and victimisation complaint Employment N/A

Complaint proven in part. $2,000 for humiliation, pain and suffering. VCAT accepted the sexual harassment had a significant impact on the complainant, and that he was humiliated as a result. However, VCAT found there was insufficient evidence to link the sexual harassment with any inability the complainant had to work.
Laviya v Aitken Greens Pty Ltd [2010] VCAT 1233 3.8.10 Complaint that complainant was dismissed for taking sick leave, requiring complainant to return to work following Kinglake bushfires, and sexual harassment Employment Impairment, sexual harassment

$3500 in general damages for extreme distress caused by the unlawful conduct. A further $1,500 general damages were awarded against a person found to have sexually harassed the complainant. Both amounts payable within 14 days. No financial loss was alleged by the complainant. There was insufficient evidence to support any award to compensate for medical expenses, even though the complainant had undergone counselling.
Stern v Depilation & Skincare Pty Ltd [2009] VCAT 2725 22.12.09 Complaint that employment status changed and employment terminated Employment Pregnancy

Complaint proven in part.

$6,607.58 total compensation comprising:

a) $3000 for loss arising from the change of her employment status during her employment

b) $2807.58 for loss of earnings

c) $800 for humiliation and emotional distress

Thomas v Alexiou [2008] VCAT 2264 31.10.08 Complaint of sexual harassment by apprentice against director Employment Not applicable $35,000 in general damages based on the extent of the repetition and duration of that sexual harassment and VCAT's assessment of its effect on the complainant

Conciliated outcomes at the Commission

A significant proportion of cases are settled at conciliation at the Commission and do not end up at VCAT. In 2016-17 66 per cent of complaints where conciliation was held were resolved. Some examples of the outcomes reached during conciliation at the Commission are summarised below.

Damages awarded during conciliation at the Commission

Parental/carer discrimination in employment
The complainant worked as a dental nurse for three years. She had been on 12 months' maternity leave and asked to return to work part time. Her employer refused her request for part-time employment stating she had to return to her substantive position working full-time hours. The complaint was resolved at conciliation for compensation of $15,000 and a letter of apology.

Disability impairment discrimination in employment
The complainant was an administrative officer with an impairment. She alleged her manager refused to allow her to work from home or to negotiate timelines for completion of work. When the complainant returned to work from sick leave she was removed from her position and excluded from her team. She became ill again and took sick leave. When she was ready to return to work her employer informed her it was not ready for her return and terminated her employment. The respondent stated the complainant's employment was terminated for failure to meet the inherent requirements of her position. She was provided with the opportunity to improve her performance and this did not occur. The complaint was settled for $17,000.

Sex discrimination in employment
The complainant was employed as an engineer with a multinational company. She alleged her employer paid her less and refused her the same benefits of employment as male engineers, such as a company car and corporate card. The complainant was also overlooked for particular projects as males were considered to be more reliable. The complainant resigned from her employment as she felt she could not progress in her field of expertise. The complaint was settled at conciliation for $45,000, a statement of regret and equal opportunity training for the company.

Disability discrimination in the provision of goods and services
The complainant has a hearing impairment and was assisted by an assistance dog. He attended a restaurant with his assistance dog. The complainant was refused entry into the restaurant due to his assistance dog and told he could only sit outside the restaurant. The complaint was settled at conciliation for a change of policy permitting assistance animals into the restaurant, signage placed at the entrance to the respondent's premises welcoming assistance animals, a written apology and $500 compensation.

Age and employment activity discrimination in employment
The complainant was in her late 60s and worked in car sales. She alleged her manager talked about wanting a younger workforce and asked her several times when she was going to retire. The complainant felt bullied by her manager when she made several enquiries clarifying conflicting information she was receiving about salary increments. At conciliation the complainant informed the respondent she wished to resign from her employment. The respondent agreed, without admission of liability, to pay the complainant $10,000 compensation, transfer ownership of the complainant's company car to her, and provide a written apology and statement of service.

Disability, parental/carer status and personal association discrimination in the provision of goods and services
The complainant and her adult daughter, who has Asperger's syndrome, applied for a loan through a finance broker to purchase an investment property. They had an appointment to sign the loan documents. The daughter did not realise she would have to answer questions from the respondent at this meeting. She became overwhelmed with anxiety and could not appropriately respond even though she understood what they were asking. The respondent made the decision that the daughter was incapable of understanding the nature of the loan and business transaction. The purchase of the property did not proceed. The respondent disputed the allegations of discrimination but agreed to attend a conciliation conference. At the conference, the respondent acknowledged it could have handled the situation better. It has implemented policies to guide its staff where finance applicants have a disability. The respondent offered apologies to the complainant and her daughter. The respondent agreed, without admission of liability, to pay the complainant and her daughter each $3000 in compensation.

Disability discrimination in employment
The complainant suffered a workplace injury and needed to undertake his duties by rotating between standing and sitting. He alleged he was not provided with a chair to facilitate this and was issued with a warning for checking the time (for rotations) on his phone. The complainant considered his employer did not provide him with suitable alternative duties. He alleged he was directed not to return to the workplace until appropriate duties were found, and his employer made no further contact with him. The respondent stated the complainant was assessed for alternative duties and these were implemented. The complainant was provided with a chair. The complainant was given a first and final warning for using his phone while on duty and using inappropriate language. The respondent also stated it had explored several options for alternative duties for the complainant. These were approved by doctors, but the complainant did not want to perform them and walked off the job. The complainant was sent several warnings and there were a number of attempts made to contact him. The complainant's WorkCover claim was terminated. At conciliation, the respondent agreed, without admission of liability, to pay $10,000 compensation and $3900 for counselling services the complainant had undertaken.

Pregnancy and disability discrimination in employment
The complainant is a store manager for a retail company. She was pregnant and developed high blood pressure. Her doctor advised her to take a week's leave to rest. The complainant contacted her manager to advise of her absence and sought information about potentially modifying her hours/role given her health concerns and her progressing pregnancy. When the complainant returned to work, she received 'counselling and corrective' action. This effectively disciplined her for not opening the store when she was on sick leave. The complainant had a heated argument with her manager and resigned, which meant she would not be entitled to paid parental leave. The respondent agreed to attend a conciliation conference. The respondent stated the 'counselling and corrective action' was a tool to implement the change in the complainant's hours/role sought by her due to her pregnancy and ill health. The respondent agreed to provide a written apology to the complainant, pay $800 of lost wages and treat the complainant's employment as continuing. It also withdrew the 'counselling and corrective action' and altered work arrangements to enable the complainant to work four hours per week in a customer service role.

Sexual harassment in employment
The complainant alleged she was sexually harassed over a number of years by the senior manager of her employment organisation. She stated her manager made numerous unwelcome advances including hugging, kissing and neck rubbing and forced her to have a sexual relationship with him. The respondent denied the allegation of sexual harassment claiming they were engaged in a consensual sexual relationship. The matter settled for $50,000.

Sexual harassment in employment
The complainant worked in a warehouse and alleged two co-workers subjected him to verbal and physical conduct of a sexual nature. The employees made comments on a regular basis that referred to the complainant performing sexual acts with them. The harassment was brought to the attention of management on a number of occasions. The respondent agreed to attend a conciliation conference and acknowledged the company had failed to handle the issue appropriately. The respondent deeply regretted the pain and suffering caused by the behaviour of the co-workers, and apologised for the failure to properly assist him to remedy the situation. The respondent agreed to provide the complainant with a written apology and pay $25,000 compensation.

Damages awarded under federal discrimination law

A larger number of cases have been brought under federal discrimination law. Damages awarded under federal law can be a useful reference point for determining damages that may be awarded under the Equal Opportunity Act.

Examples and information about damages awards in the federal courts for complaints under the Sex Discrimination Act, Age Discrimination Act and Racial Discrimination Act can be found in the Australian Human Rights Commission's resource Federal Discrimination Law, available online.

The Australian Human Rights Commission also has a Conciliation register with summaries of complaints that have settled at conciliation under federal law.

Notes

1 : GLS v PLP [2013] VCAT 211 [275]-[276], citing I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd [2002] HCA 41; (2002) 210 CLR 109, 128 [56]-[57].

2 : Qantas appealed the decision on a number of grounds, including the award of damages. The ground of appeal relating to damages was dismissed by the Full Court: see Qantas Airways Limited v Gama [2008] FCAFC 69 [5], [100]-[104], although the appeal was upheld in part in relation to the disability discrimination aspect at [91].

3 : Australian Taxation Office, Income Tax: Compensation Payments in Respect of Unlawful Acts of Discrimination, TR IT 2424, 2 July 1987.

4 : Ibid.

5 : An Employee v Federal Commissioner of Taxation [2010] AATA 912. Also see Australian Taxation Office, Income tax: employment termination payments (ETP): payments made in consequence of the termination of any employment: meaning of the phrase 'in consequence of', TR 2003/13, 22 October 2003.


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