Responding to a complaint
This section relates to complaints made to the Commission under the Anti-Discrimination Act 1991.
Complaints under the Human Rights Act 2019 may not be lodged until after 1 January 2020. Complaints under the Human Rights Act will only be able to be made about alleged breaches which occur after 1 January 2020.
The Anti-Discrimination Act 1991 allows people to complain to the Commission if they think they have experienced unlawful discrimination or another contravention of the Act.
The Commission assesses the complaint to see whether it is covered by the Act.
If a complaint has been made against you and is being dealt with by the Commission, you will be provided with a copy of the complaint and given an opportunity to respond and resolve the complaint.
Notification of complaint
When the Commission receives a complaint, it is assessed to see if the things complained about are covered by the Anti-Discrimination Act 1991.
The Commission must decide whether or not to accept a complaint within 28 days of receiving it, unless more information is needed to decide.
Complaints which are accepted
If it appears that the complaint is covered by the Act, it is accepted, unless there are other issues to be dealt with.
Accepting a complaint does NOT mean that the Commission has decided that the discrimination or other breach of the Act happened. Acceptance means that the allegations are covered by the Act, and the Commission will try to resolve it.
Once a complaint is accepted:
- The Commission advises the person making a complaint (the complainant) in a letter that their complaint has been accepted.
- The Commission advises the person being complained about (the respondent) in a letter that a complaint has been made against them, and provides a copy of the complaint.
Complaints which are not accepted
If the Commission does not accept a complaint, the complainant is advised that their complaint has not been accepted and the reasons why. If there is another agency which can handle the complaint, the Commission will refer the person to that agency.
The Commission does not generally tell the person being complained about unless the complaint is accepted, or unless the Commission needs information from them before deciding whether or not to accept the complaint. The most common situation where this happens is when more than 1 year has passed before the complaint was made to the Commission.
If the complainant whose complaint has not been accepted subsequently provides further information which shows that the complaint comes under the Act, the Commission may accept the complaint and notify the respondent.
Who a complaint can be about
The person who engaged in the conduct prohibited under the Act is responsible for their own behaviour. A complaint can be made about them.
If the things complained about happened in the workplace, in the course of a person doing their job, the employer (in addition to the individual) may also be responsible. This is called vicarious liability. An employer may not be vicariously liable if they took reasonable steps to prevent the behaviour.
Anyone who encouraged or requested the behaviour is also responsible, and a complaint can be brought against that person.
Options for responding to a complaint
When a complaint has been accepted and the Commission has notified the complainant and the respondent (as above), both parties are directed to attend a compulsory conciliation conference on a specific date. The conference will generally be held around four to six weeks after the notification.
If a complaint has been made about you (that is, you are a respondent), you have the option of:
- requesting an earlier conciliation conference than the date set; and/or
- making a written response to the complaint.
Early conciliation conference
The respondent may request an early conciliation conference. They do not have to provide a written response before making this request.
An early conciliation conference date means that resolution of the complaint may be able to start sooner, and stress minimised for all concerned.
When a respondent tells the Commission that they want an early conciliation conference date, we will talk to the person making the complaint and all the other respondents to see if an earlier date can be arranged. Sometimes a complaint can be resolved sooner in this way.
All parties to the complaint must agree to an earlier conference date for this option to proceed.
Respondents have the opportunity to provide a written response to the matters raised in the complaint before the conciliation conference.
It is not compulsory to provide a written response. However, a written response can sometimes help resolve complaints by providing an explanation that satisfies the complainant. If this is the case, a conciliation conference may no longer be necessary for the complaint to be resolved.
If you decide to provide a written response:
- Give your side of the story, especially if there is a reasonable explanation for what happened.
- Keep in mind that the complainant and other respondents will be reading your response.
- Suggest how you want to resolve the complaint.
- Give your phone number and address for service where you can be easily reached. This address for service will be given to all the complainants and any other respondents. If you want to keep your home address private, use a PO Box, the address of an organisation, lawyer or other reliable person.
- Tell us if you would prefer contact by email or fax and give your details.
- Sign and date your response.
A copy of the response should be sent to:
- the complainant, at their address for service provided by the Commission; and
- all other respondents listed on the Commission's letter; and
- the Commission, including confirmation that you also sent it to the complainant.
Privacy information for respondents
If you provide us with a response or submission in relation to a complaint that is covered by the Act, the Commission must inform the person who made the complaint, and also any other people and organisations the subject of the complaint, as soon as possible after receiving it. This will usually include providing the parties with a copy of your response and other documents.
If the complaint is resolved by written agreement, the Commission must file the agreement with the appropriate tribunal.
If the complaint is unable to be resolved through conciliation and is referred to a tribunal hearing, the Commission will provide your response and other documents to them.
The Commission may publish a case study based on the complaint, but it will not include your name or any identifying information.