Victims Out Of Pocket, Win Or Lose

Sydney Morning Herald

Monday December 26, 2005

Leonie Lamont

DISCRIMINATION victims who win their cases are being left thousands of dollars out of pocket because successive state governments have failed to index the damages they can be awarded.

The Administrative Decisions Tribunal, which hears discrimination cases brought under NSW law, has criticised government inaction over the past two decades and the injustice that complainants face.

It highlighted the problem in the recent case of Kylie Jordan, a health worker, who was awarded $7500 after her employer was found to have discriminated against her. She had requested light work during the latter stages of her pregnancy, but was told there was no work and she should take unpaid leave. Her legal costs were $14,400.

"It is highly undesirable that people must decide whether they can afford even to be successful in seeking the protection of the Anti-Discrimination Act," the tribunal said.

Unlike the general rule in courts where all the costs are paid by the losing side, in the tribunal each party shoulders its own legal bill. In an unusual move, the tribunal ordered the North Coast Area Health Service to pay 75 per cent of Mrs Jordan's costs.

It said discrimination law was so complex that complainants needed legal representation to make their cases.

The tribunal's poor cousin status is a far cry from when the Anti-Discrimination Act came into force in the late 1970s, when the maximum damages matched those awarded by the District Court. The tribunal's cap has remained at $40,000 since 1982 - while the District Court cap has risen to $750,000.

Sian Ryan, a lawyer who practises discrimination and employment law, said lawyers and complainants avoided the Anti-Discrimination Act, and filed cases in the federal jurisdiction, even though federal law was narrower than NSW law. The Federal Magistrates Court has a $200,000 damages cap. Complainants, if successful, have their legal costs covered, but run the risk of having substantial costs awarded against them if they lose.

"There should be recognition that discrimination can have a very material effect on people's lives," Ms Ryan said. "If you have been sacked because you are pregnant you are not only going to feel the distress, but in all likelihood lose your income, and a lot of benefits associated with long-term employment. Awarding damages of $5000 to $10,000 - I don't think that recognises the extent of the loss."

The message sent to employers was it was OK to break the law because there was not a great deal of financial punishment involved, she said.

The Attorney-General, Bob Debus told the Herald he had been approached by the president of the Anti-Discrimination Board, Stepan Kerkyasharian, who had suggested lifting the damages limit.

"There is a case to increase the jurisdictional limit, as it has remained at the current level for over two decades. I am currently consulting with heads of jurisdiction concerning an appropriate amendment, and should the current review suggest that an increase is warranted, would expect that relevant changes could be introduced into the Parliament during 2006," Mr Debus said.

Mr Kerkyasharian told the Herald the Law Reform Commission had proposed lifting the limit to $150,000 some years ago.

© 2005 Sydney Morning Herald

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