Sometimes it is simply not practical to make an internal report to an employer about workplace harassment. For example, you may work for a sole trader who is both the business owner and your boss, and whom may have also been the person harassing you. Sometimes even when workplace harassment is reported, no action (or only token action) is taken. In those circumstances it may be appropriate to consider whether you ought to take a complaint outside of your workplace to try and obtain appropriate relief and/or compensation.
Making a complaint to a government agency
If your employer is subject to the Fair Work Act (as a tip all Pty Ltd companies are) then you may be able to make a complaint with the Fair Work Commission. If your employer is not covered by the Fair Work Act (eg State government employers or partnerships) then you will need to consider making a complaint to the appropriate State government agency (which agency will depend upon the nature of the harassment). Complaints can generally be lodged online and you do not necessarily need a lawyer to do this for you. Broadly speaking, once you have lodged your complaint, the relevant government agency will then provide a copy of it to your employer to provide an opportunity to respond. If a response is provided the next step will usually be a mediation-type hearing with the parties to try and reach an agreed outcome. You can generally have your lawyer present for this mediation and many are conducted by telephone. If a mediation-type hearing fails to reach an agreement then the claim will likely be scheduled for a hearing where both sides are able to give their respective version of events, put forward any documents that support their case and call any witnesses in support. The claim will then be determined one way or another.
Negotiating directly with your employer
If the employment relationship has broken down you may need assistance to help negotiate an exit and formally end your employment. You may not want the harassment to be investigated for your own reasons and instead simply wish to exit and move on to a new workplace. In this type of scenario, it is common for employees and employers to try and reach a negotiated settlement to end the employment relationship. Usually the terms of the settlement will include a payment of money to the departing employee in exchange for confidentiality over the terms of the settlement. If you are in this category then we can more than likely assist you with conducting negotiations and drafting or reviewing a settlement deed if required.
If you have been harassed to an extent that it has impacted upon you psychologically then you may like to speak to your GP. You ought to request that your GP keep records and ultimately, if you are deemed unfit for work due to the harassment, you can then ask your GP about making a workers compensation claim. In short, if your GP provides you with a certificate of incapacity you can then provide it to your employer and your employer will then notify their insurer of your claim. Workers Compensation claims in WA are subject to a statutory regime. Austral Legal does not deal with Workers Compensation claims but can refer you to lawyers who do. Alternatively, you can get in touch with the WA Law Society who provide a free referral service to lawyers practising in Workers Compensation.
If you have already been fired
If you have already been fired and you believe or understand that it is because you made a complaint about workplace harassment, then you still have several options. These include making an application for unfair dismissal, making what is known as a ‘general protections’ claim (see the Fair Work Commission website for more information of the types of claims covered under general protections) or making a complaint to an anti-discrimination tribunal if it is appropriate to do so. Note that there are timeframes which apply to commencing a claim. For example most applications to the Fair Work Commission are required to be lodged within 21 days.
The ‘right’ course of action
What is ‘right’ for one person may not be ‘right’ for another. Some people simply want to receive compensation in the form of a ‘pay-out’ and move on. Others want their employer to recognise the harassment, put arrangements in place to ensure that it does not happen again and are otherwise quite happy to keep working in a job that they may have been in for a long time and quite enjoy. Some people may want to seek an acknowledgement of the harassment and see that an appropriate disciplinary sanction is imposed on the alleged perpetrator (often accompanied by an apology from the alleged perpetrator).
If you are seeking compensation for the harassment and to perhaps provide a financial backstop while you look for alternative employment, you may be able to negotiate an exit payment underpinned by a claim to loss of wages. In that case, the dollar value of any such claim will ultimately depend upon variables such as the seriousness of the alleged harassment and the available evidence to prove the claim. For example, if it was serious harassment witnessed by other people and caught on CCTV camera then the combination of the seriousness and the available evidence will, in the absence of a hearing, likely increase the chance of a negotiated settlement and for the dollar value of that settlement to be toward the higher end. Conversely, if the harassment is less serious with no ‘evidence’ other than your word that it occurred (and presumably it will be denied by the alleged perpetrator) then the chance of reaching a negotiated settlement is lessened, and the associated dollar value of any settlement is likely diminished.
If you ultimately end up in a hearing (whether through a tribunal or the Courts) then you will also need to consider whether you need the assistance of a lawyer. If so, you will also need to be prepared for the associated legal costs. If you are not in a position to pay legal commercial legal fees then you ought to consider approaching a free or low cost legal service such as your local Community Legal Centre or the Employment Law Centre of WA.
If you have read this far and think that you may need to get some practical advice about your situation then you may like to get in touch. Austral Legal offer an initial discounted 30-minute SmartMove appointment for $80 to discuss your situation and answer any queries you may have. Bookings can be made online through our website or by simply getting in touch.
Beyond the initial appointment we may also be able to offer you fixed fee pricing for any legal services you may require. If so, then you will know what your legal fees for your matter will be up-front with no hidden surprises at the end. Austral Legal. Practical Advice.