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Respond to a discrimination claim

We will help you respond to the complaint properly, from the first letter through to conciliation or defence.

A discrimination complaint is not decided the way most employers assume. In a general protections claim the law presumes the adverse action was taken for the alleged reason. It is then for the employer to prove otherwise. That reverses the usual burden. It also means the evidence that matters is what the decision-maker was thinking and what was recorded at the time. We act for employers on these from the first letter onward.

Speak to a lawyer What is included

The right process identified early

Which jurisdiction the complaint sits in decides the time limits and what you are exposed to.

The reason, evidenced

The response establishes why the decision was made and shows it from the contemporaneous file.

Nothing added to the file

Advice on what not to say or do while it runs, because most of the damage is self-inflicted.

What is a discrimination claim and how does it proceed?

A complaint can be made on more than one route. An employee may complain to a state equal opportunity body or to the Australian Human Rights Commission under federal anti-discrimination law. It may instead be a general protections application under the Fair Work Act 2009 (Cth) (the Act). That route applies where the complaint concerns adverse action taken because of a protected attribute or the exercise of a workplace right.

The route matters, because the procedures and the exposure differ. Anti-discrimination complaints usually begin with conciliation and can proceed to a tribunal or court. General protections claims go to the Fair Work Commission for a conference and can then proceed to court. There, compensation is uncapped and civil penalties are available. In both, the employer’s early response and its contemporaneous records carry disproportionate weight.

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What is the difference between a discrimination complaint and a general protections claim?

They come from different laws and run in different places. A discrimination complaint usually goes to a state equal opportunity body or the Australian Human Rights Commission. A general protections claim goes to the Fair Work Commission and then potentially to court, where compensation is uncapped and penalties are available. The same facts can sometimes support either.

Do I have to prove I did not discriminate?

In a general protections claim, largely yes. Once the employee shows adverse action and a protected reason is alleged, the law presumes the reason unless you prove otherwise. That is why evidence of who made the decision and why, recorded at the time, matters so much.

Can I talk to the employee to sort it out?

Not without advice. Direct contact with a complainant while a claim is on foot is easily characterised as pressure, and that can become a separate allegation. Anything you want to convey should go through the process or through us.

What does it cost to resolve one of these?

It varies widely. Many resolve at conciliation for a commercial sum without any admission. A defended general protections matter in court is a different order of expense, and the exposure is uncapped. We will give you a realistic comparison early, because that decision should be made on numbers rather than principle.

Answer the complaint before you answer the accusation

Send us the complaint and tell us what happened from your side. We will tell you which process this is, what it exposes you to, and what the response has to establish.

In a general protections claim, the law starts by assuming you did it

A complaint has been made and you believe it is wrong. You now have to respond in a process where your own conduct after the complaint is also evidence. The burden may sit with you rather than with the person complaining.

The instinct is to explain yourself at length and to defend everyone involved. That instinct produces the documents that get used against employers later.

We will identify which jurisdiction the complaint sits in and the time limits that apply.
We will collect and review the contemporaneous record behind the decision.
We will prepare the response and the evidence of the reason for the decision.
We will advise on what to avoid doing while the complaint is on foot.
We will represent you at conciliation or conference and advise on settlement.

A complaint has been made and you believe it is unfounded

An employee, or a former employee, has alleged that something that happened to them was because of who they are or something they raised. You do not see it that way at all. There was a performance issue, or a restructure, or a decision that had nothing to do with the attribute alleged. What you have is your recollection. What the process will look for is what was documented at the time, and you are not sure what that shows.

What's included in your discrimination claim response service

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Assessment of the complaint and the jurisdiction it falls in.
Exposure and time limit advice.
Document collection and review of the decision record.
Written response preparation.
Advice on conduct while the complaint is on foot.
Conciliation or conference representation and settlement advice.

What an early misstep costs

Employers damage these claims in the first fortnight, usually while trying to be helpful. A long letter written in anger becomes the primary exhibit. A reason for the decision is offered that differs slightly from the one in the file, and the inconsistency is what gets tested. Someone in the business speaks to the complainant directly to sort it out, and it is later characterised as pressure.

Then the file itself lets you down. The decision may have been made for a perfectly good reason. If nobody wrote that reason down at the time, the employer has to prove a negative from memory. In a general protections claim, where the presumption already runs against you, that is close to unwinnable. The exposure is not capped, and the matter can attract civil penalties on top of compensation.

How we put you in a position to answer it

We work out which process this is first, because the procedure, the time limits and the exposure all follow from that. Then we collect the contemporaneous record before memories harden. The decision documents, the performance file, the emails around the relevant period, and who actually made the decision and why.

We prepare the response itself, which is a narrower document than most employers expect. It establishes the reason for the decision and puts the evidence behind it, without editorialising about the complainant. We advise on what not to do while it runs, which is often the more valuable half. Then we represent you at conciliation or conference. We also give you a realistic view of settling against defending, including what a defended matter would cost and expose.

How the response gets built

The reason is established, the record supports it, and nothing new is created.

Identify the process

We work out which jurisdiction the complaint sits in, what the time limits are, and what you are exposed to.

Secure the record

We collect the contemporaneous documents that show who made the decision and on what basis.

Respond and resolve

We prepare the response and represent you at conciliation, with a straight view on settling against defending.

Employer responses that establish the reason and stop there

Few allegations land as badly as this one. Being told a decision was discriminatory, when you know it was about performance or cost, is personal in a way a contract dispute never is. The urge to write everything down and set the record straight is very strong, and almost always counterproductive.

We act for employers on discrimination and general protections complaints, and the first advice is usually about restraint. The reason for the decision, evidenced from the file, is what answers the claim. Everything added to it gives the other side something to work with. We will tell you honestly where the record is thin, because that changes whether this should be settled.

Our great lawyer guarantee

Six principles we hold to, whatever you bring us and however long it takes.

Take the time

We listen carefully to understand what you want to achieve, then step you through the advice and the documents.

Share our knowledge

We pass on as much as we can, so you can make your own informed decisions.

Stick to our knitting

We only do what we are good at, so you never pay for our learning.

Work as one team

Someone is always available to answer your question or point you the right way.

Fair pricing

A fixed or capped quote for advice and documents, so you do not carry the price risk.

It is your show

We are in it for a front row seat to witness your success, not for our egos.

Respond to it properly, from the first letter

Send us the complaint and the file on the decision behind it. We will tell you which process this is, what it exposes you to, and what your response needs to establish.

Speak to a lawyer 1300 654 590