The Act specifies a complaint can be finalised in one of a number of ways:
- Lapsed by the Commissioner if there is no response to attempts by the Commission's conciliation officers to contact the complainant, or if the person does not provide information to actively pursue the complaint
- Withdrawn by the complainant at any time. This can occur following the initial response from the respondent, elected to move to another jurisdiction, or cannot provide evidence
- Resolved by conciliation when both complainant and respondent achieve mutually agreed outcome or outcomes
- Referred to the State Administrative Tribunal by the Commissioner if it cannot be conciliated and the Commissioner believes there is an arguable case
- Dismissed by the Commissioner if it is lacking in substance, misconceived, vexatious or frivolous. A complainant can in writing require that a dismissed complaint be referred to the Tribunal.
A total of 483 complaints were finalised, of these 112 complaints were resolved through conciliation (23.2%), whilst 131 were dismissed (27.1%), 128 were withdrawn by complainants (26.5%), and 100 (20.7%) were lapsed. The remaining 12 were referred to the Tribunal for investigation (2.5%). These outcomes are similar to the outcome of complaints in past years.
The Commission undertook an analysis of complaints filed in the area of employment to ascertain the percentage of complaints from people who were applicants for positions compared to existing employees.
In the past 12 months people applying for jobs lodged fewer complaints of unlawful discrimination (62 or 20%) compared to those who were already employed by the respondent (248 or 80%). It was also found more complaints by employees conciliate successfully (22.5%) compared to the number of successful conciliations of job applicants (11.1%).
The explanation for this significant difference may be that employees have greater access to evidence to substantiate their complaints. Those applying for positions may have a strong sense they have been discriminated against, however their ability to provide evidence is often limited.
For those complaints from job seekers that are conciliated there is usually evidence that the applicant was successful but the employer withdrew the offer at a late stage. For example applicants are sometimes in the final stages of the selection process when a higher level manager intervenes and discontinues the recruitment process. In some cases the process is discontinued following a medical check that identifies an impairment that does not affect the ability of the job seeker to perform the job.
Where possible complainants and respondents are encouraged to seek to resolve the complaint through a mutually agreed set of outcomes.
Figure 14 shows the outcomes of the 112 complaints which were conciliated. Many of these conciliated complaints were resolved with more than one outcome, for instance a monetary settlement, a policy change and an apology.
Settlements involving a monetary settlement remained largely unchanged from previous years with 20.5% this year compared to 20.2% in the previous year. The second most common outcome was an apology (18.6%), which was significantly lower than the previous year (27.5%). This year a higher percentage of complaints accepted the respondent’s explanation (14.8%) compared to the previous year (5.3%).
Time taken to resolve complaints
The Commission aims to investigate and conciliate or finalise complaints in a timely manner without compromising the ability of all participants to be treated fairly and achieve satisfactory outcomes.
In 2018-19 78.7% complaints resolved in under six months, and 97.7% in under 12 months. The average length of time taken to resolve complaints has increased to 4.1 months compared to the previous year’s average of 3.9 months; this is due to the increasing complexity of issues raised.