The Anti-Discrimination Board’s complaint handling process
 What happens when you lodge a complaint?
Conciliation Conferences
The key elements of the complaint resolution process
The Administrative Decisions Tribunal
What if the other side tries to punish or victimise me because I complained to the Anti-Discrimination Board?
What if I’m unhappy with the way the complaint is being handled?
The complaint process - flow chart
Where can we get more information?
What happens when you lodge a complaint?
The Board will send you a letter of acknowledgment within two weeks of receiving your complaint. The Manager of the Enquiries and Conciliation Branch will assess your complaint to determine if it is covered under the Anti-Discrimination Act. How long will it take to resolve my complaint?
Resolving complaints can take several months and very complex cases may take longer. However, many complaints can be sorted out more quickly. We aim to deal with complaints within six months from the time you lodge your complaint. Your complaint may be declined
If your complaint is not covered by the Anti-Discrimination Act, or there is not enough information to show that you have been discriminated against, we will send you a letter to tell you that we cannot help with your complaint and explain why. If we can, we will also tell you who else might be able to help you. If your complaint is covered by the Anti-Discrimination Act
If your complaint does show that you may have been discriminated against under the law, your complaint handler will contact you for any other information we need, either by phone or letter. We will explain what we can and can’t do, and the steps involved in our complaint resolution process.
After we have contacted you, the Board will send a copy of your complaint and any paperwork you have provided to the respondent(s), that is the person or people you are complaining about. This is in fairness to the respondent, and so that the Board can get as much information about your complaint as possible.
Remember, complaints to the Anti-Discrimination Board are confidential and it is also against the law to treat you badly because you have made a complaint.
The respondent’s reply
We will give the respondent a deadline to respond to us in writing about your complaint. You will then receive a copy of the respondent’s letter to us for your comment. Often complaints are resolved at this point.
If not, the next step is a conciliation conference.
Conciliation Conferences
A conciliation conference is a meeting where you and the respondent meet to talk about the complaint and ways to sort it out, usually with the assistance of two of the Board’s officers. The complainant and respondent(s) can meet directly or through their representatives if the President allows this. It is a free service provided by the Board.Do we have to attend?
The President of the Board can tell people that they must attend a conciliation conference. If complainants or respondents refuse to attend, the person who refuses to attend can be fined by the courts.
It is in the interest of both sides to attend the conciliation conference in order to sort out the matter as quickly and cheaply as possible instead of having to go to the Administrative Decisions Tribunal.
What are the aims of a conciliation conference?
The aims of a conciliation conference are:
- to allow both sides to discuss the alleged discrimination and the issues around it;
- to attempt to resolve the complaint;
- to educate both sides about their rights and responsibilities under anti-discrimination law; and
- to advise respondents on how to prevent discrimination in the future.
Who should come to a conciliation conference?
Complainants should attend the conference themselves. You can ask permission to bring along a support person such as a friend or work colleague – you should talk to your complaint handler about this.
If the respondent is a large organisation, they should try to send someone who has:
- excellent communication, empathy, listening and ‘people’ skills,
- excellent negotiation skills,
- creative ideas for resolving the complaint,
- authority to negotiate on behalf of the organisation,
- not already had unpleasant contact with the complainant, and
- who is not personally named in the allegations.
In some instances the complainant may wish the harasser to be present. If this is the case, you should discuss this with the complaint handler before the conference takes place.
If the complaint is against a small organisation and the person named as the harasser is also the manager or owner of the organisation, then that person would have to attend the conference. This also applies to individuals who have been named in vilification complaints. Can we bring a lawyer to the conciliation conference?
You must get permission from the President of the Board if you want to have a lawyer present at a conciliation conference. So that you can be prepared, it is best to discuss this with your complaint handler when you are notified of the conciliation conference.
If you aren’t allowed to bring a lawyer, you should get the advice you need about settling the matter before you attend the conciliation conference so that you are ready to discuss a solution on the day of the conference.
You can negotiate through your lawyer outside the conference itself, but ultimately the President must decide if solicitors can attend the conference or not.
What is the complaint handler’s role at the conciliation conference?
The complaint handler’s role is to:
- help everyone remain calm and polite;
- be fair to both sides – the complaint handler is not allowed to take sides;
- ensure that each side can put forward their point of view without being interrupted;
- make sure the conference deals with the main issues and not irrelevant matters; and
- assist the complainant and respondent(s) to resolve the complaint in a way that is satisfactory for everyone.
Complaint handlers may meet separately with either side at any time during the conference. Either of you has the right to ask the complaint handler for a break at any time to help you gather your thoughts and consider your position. Resolving your complaint
You should bring a proposal for settling your complaint to the conciliation conference. The Board aims to resolve the complaint at the conference, but if necessary, both sides can have a period of time after the conciliation conference to consider the settlement proposal.
The complaint handler cannot tell either side what to settle on. If you have no idea about what would be a fair or reasonable resolution, we can give you information about how to get advice on this.
Usually when the complaint is finalised there will be a deed of release or a conciliation agreement. These documents set out the outcome that both parties have agreed to. A deed of release is generally provided by the respondent and is legally binding. A conciliation agreement is not legally binding and the Board cannot enforce it, but you can register the agreement with the Administrative Decisions Tribunal and have it enforced. The key elements of the complaint resolution process
There are three key elements in the complaint resolution process:
- Impartiality
- Confidentiality
- Flexibility
Impartiality
The neutrality of complaint handlers at the Board is vital. In order for our complaint resolution process to work, the complaint handlers never take sides in the dispute. Allegations of bias are very rare, but when they do occur they are taken very seriously. You can write to the President of the Anti-Discrimination Board if you think the complaint handler has not been impartial.
Confidentiality
Complaint handlers must also keep your complaint confidential - which means they will not discuss your complaint with anyone outside the Board except as part of the investigation. They only discuss it with you, the person or organisation you have complained about and any witnesses. As well, you will be asked not to talk about your complaint to anyone who does not need to know. We also ask the person or organisation you have complained about not to talk to anyone who does not need to know.
- It is our practice not to reveal if we have received a particular complaint if a media (or other) enquiry should arise. We handle matters discreetly and do not leave telephone messages that would indicate that there is a complaint with us.
- We mark all of our correspondence with both parties ‘private & confidential’ and use a plain envelope with our return address but not our name printed on it.
- If a matter is not conciliated and is referred to the Equal Opportunity Division of the Administrative Decisions Tribunal no information about the conciliation process will be made known to the Tribunal. Only the key documents on the complaint file are sent to the Tribunal in the President’s report on the complaint.
Flexibility
The Board’s complaint resolution process can be modified to suit both parties and we will listen to any reasonable suggestions you have to make things easier. Strategies for taking part in a conciliation conference
- Allow at least two hours for the conciliation conference.
- Be prepared before you come to the conference.
- Discuss all the issues with the Board’s complaint handler.
- Get any legal, financial or other advice you may need.
- Bring all relevant documents with you in case you need them.
- If you’re a respondent get all relevant information about the matter from inside your organisation.
- Consider all of the information and issues.
- Focus on the relevant issues — not unrelated matters.
- Decide how you would like the complaint resolved.
- If you’re a respondent, be sure you send someone who has the authority to negotiate and make a settlement, if appropriate, on the day of the conference.
- Remain calm — try not to take any allegations personally or lose perspective — this can make negotiations more difficult. Don’t personally attack the other party. Remember that the Board is impartial and will not take sides. The conference is not a ‘court’ hearing. You can ask questions, but you cannot cross-examine people.
- Be open — discussions in a conciliation conference are confidential, and they cannot be used by either party at the Equal Opportunity Division of the Administrative Decisions Tribunal. If you have information that the other party should be aware of, but that you do not wish to give to them in writing, you can tell them or show them a document that they can read in the conference and return to you. Respondents should tell the complainant what changes their company may have made in order to deal with the problems that have been raised by the complaint.
- Listen — don’t interrupt. If someone makes points you agree with, you can let them know. Responents can show complainants that they have listened to them even if they disagree, by mentioning things they have said. In general, complainants need to feel they have been heard before they are ready to resolve the complaint.
- Both parties can continue negotiations after the conciliation conference, if this is appropriate;
- you can withdraw the complaint;
- you can ask the President to refer the complaint to the Equal Opportunity Division of the Administrative Decisions Tribunal as being unable to be conciliated; or
- the President may decline the complaint as lacking in substance because there doesn’t seem to be enough evidence. If this happens, then you can still take the complaint to the Administrative Decisions Tribunal.
Withdrawing a complaint
You can ask the Board to stop dealing with your complaint at any time during the investigation or conciliation process. No-one else can withdraw a complaint except the complainant.
To withdraw your complaint, you need to write to the person handling your complaint and tell them that you want to withdraw it. Your file will then be closed. We won’t do anything more with it and we will not re-open it later if you change your mind The Administrative Decisions Tribunal
If you and the respondent cannot agree on a way to resolve the complaint, you can ask the President to send it to the Equal Opportunity Division of the Administrative Decisions Tribunal for a legal decision.
The Tribunal is like a court and its hearings are public. It will consist of three people who are experienced in anti-discrimination law. The Tribunal listens to all the arguments and evidence from both sides.
The Tribunal is the only place where a legally binding decision can be made as to whether or not discrimination happened. If the Tribunal finds that NSW anti-discrimination law has been broken, they will decide what should be done about it. If the Tribunal decides the law has not been broken they will say so. Outcomes of the Tribunal
If the Tribunal decides that unlawful discrimination has happened, it can make an order that the person who has been discriminated against should:
- be paid compensation (money);
- get the thing or service they were denied; and/or
- receive an apology.
The Tribunal can also make an order that the respondent must do whatever is needed to make sure that the unfair treatment does not happen again. Sometimes the Tribunal may order that a public apology be made to the person who complained.
Because the Tribunal is like a court, people directly involved in the complaint do usually need solicitors. Each side normally pays its own legal costs. Usually the Tribunal is open to the public and the complaint will no longer be kept confidential. However, the Tribunal may keep names and address confidential in special cases.
What if the other side tries to punish or victimise me because I complained to the Anti-Discrimination Board?
The law in New South Wales can protect you if you have made, intend to make or have helped someone else make a complaint of discrimination, harassment or vilification covered under the NSW Anti-Discrimination Act 1977. This includes people who have agreed to be witnesses in relation to your complaint.
This means that you must not be punished or receive further unfair treatment for complaining about treatment that you believe is covered under the NSW Anti-Discrimination Act 1977, or because someone thinks you are about to complain or because you have helped someone with a complaint. For example, being dismissed because you’ve complained about age discrimination to your employer or the Anti-Discrimination Board.
If anyone tries to make trouble for you because you made a complaint or because they think you might make one, you should talk immediately to an Officer at the Board. What if I’m unhappy with the way the complaint is being handled?
If you are unhappy at any time during the process of resolving your complaint, speak to your complaint handler about your concerns. If it happens during a conciliation conference, ask for a break so you can speak to the complaint handler privately.
Tell the complaint handler exactly what you are feeling and why. It may be something that can be cleared up straight away.
If you feel you cannot continue with the complaint handler after discussing the problem with them, you should tell them this and say what you think the next step should be. You could also speak to the Manager of the Enquiries and Conciliation Branch, or make a written complaint to the President of the Anti-Discrimination Board.
You also have the right to complain to the NSW Ombudman’s Office about the way your complaint was handled. But you cannot complain to the Ombudsman about the result of conciliation or about decisions of the Equal Opportunity Division of the Administrative Decisions Tribunal.
If your complaint goes to the Equal Opportunity Division of the Administrative Decisions Tribunal and you are not satisfied with the decisions they make, you may be able to appeal to a higher court. Before you do this, it is a good idea to get legal advice about whether this is worthwhile. The complaint process - flow chartWhere can we get more information?
You can get free and confidential advice about the Anti-Discrimination Act, the Board’s processes, and discrimination in general from the Board’s General Enquiry Service or from the Board’s Employers Advisory Service. These services are available by telephone. You can also get information from the person handling your complaint.
The Board produces an extensive range of publications on discrimination, harassment, and prevention as well as guidelines for employers, local councils, real estate agents, registered clubs and others. The Board also offers training in these topics, for a fee.
You can also seek legal advice from a lawyer. The following organisation may be able to help you:
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