In the popular imagination, workplace injustice ends with triumph on the courtroom steps. Unfortunately, the reality is often less rosy. Many workplace incidents never find their way to courts or employment tribunals, for reasons ranging from cost to complexity. Even when lawyers are engaged, the vast majority of disputes settle before being heard by a judge. Here are three workplace issues that are rarely litigated.
Prior to the landmark 2014 decision in Richardson v Oracle, non-economic damages in discrimination cases (including sexual harassment) were typically limited to no more than $10,000. This provided a considerable disincentive to litigating unlawful discrimination, with legal costs often outweighing the compensation received. While Richardson has changed things for the better – six figure general damages sum are no longer uncommon – it remains that few of these cases see the light of a courtroom.
Beyond uncertainty as to pay-out, three other factors inhibit litigation. Firstly, discrimination claims under federal law must first be taken to the Australian Human Rights Commission, which insists on a cumbersome and often ineffective conciliation process before an aggrieved individual can take court action. Secondly, discrimination laws provide no costs protection, so if the complainant is unable to make their case, they can face hundreds of thousands of dollars in legal fees; government departments rarely use cheap lawyers. Finally, there is a psychological barrier – discrimination (whether age, sex, disability, race or another attribute) can be deeply traumatic, and many victims would rather forget than relive the incident under cross-examination.
There is, though, one positive reason why discrimination matters are not ending up in court. Employers have rightly adopted, and in admirable instances driven, the broader community’s increasing prevalent stance against all forms of discrimination. One effect of this has been stronger internal protections against discrimination through the enforcement of ‘zero tolerance’ policies. Aware of the risk of vicarious liability, many employers have been diligent in stamping out discrimination.
Work health and safety complaints
In every jurisdiction around Australia, employers owe a duty to keep their workplaces free from reasonably preventable risks to their employees. For example, work health and safety legislation and regulations require employers to ensure their employees are not subjected to unreasonable risks while at work. Most employers are highly responsive to employee feedback that something in the workplace is unsafe, and will quickly rectify the situation.
But when an employer fails to act, an employee has little scope for recourse. Work health and safety legislation provides no individually-enforceable cause of action for employees; its provisions are typically enforced by the relevant regulator. This means that the right of an employee to sue an employer for breaching their workplace safety obligations typically does not arise until after the fact, once an injury has occurred.
However, if a government department failed to act promptly to reports of workplace hazards, the Public Interest Disclosure Act provides an alternative route to agitate the matter. The whistleblower protection legislation includes within its definition of disclosable conduct: “conduct that unreasonably results in a danger to the health or safety of one or more persons”. In circumstances of “substantial and imminent danger”, disclosure to the media may even be permissible. A paper cut probably does not meet this threshold, though.
Unfair Code of Conduct investigations
As all public servants (should) know, their employment is subject to additional conditions found in section 13 of the Public Service Act: the APS Code of Conduct. Complaints that employees have not upheld their obligations under the Code are usually managed through internal processes, or sometimes outsourced to external investigators. Public servants often complain that these investigations are managed unfairly, with departments regularly failing to comply with their procedural fairness obligations. The allegations are not properly particularised, the decision maker is bias, the accused is not given an adequate opportunity to respond – the list of grievances is endless.
Regrettably for aggrieved public servants, few will possess the financial resources to successfully remedy these errors through judicial review. Not only will the costs of pursing such a claim regularly enter six-figures, judicial review also operates in an ‘adverse costs’ jurisdiction. This means that if the employee loses, they will not only be liable for their own costs bill, but also that of the Commonwealth.
Additionally, there are very limited remedies available to judicial review, with the most common being an order that the decision be remade in accordance with procedural fairness. This means the investigation will be rerun, often leading to the same conclusion anyway. One alternative route is the Merit Protection Commissioner, who can review administrative decisions made within the public service in a variety of circumstances. This avenue is without cost, and the Commissioner can recommend that the original decision be set aside, varied or remade.
John Wilson is managing legal director at Bradley Allen Love. He acknowledges the assistance of his colleagues Robert Allen and Kieran Pender in the preparation of this article.