Victimised employee awarded damages for hurt feelings

A recent decision of the New South Wales Administrative Decisions Tribunal has ordered an employer to re-train its HR specialists and supervisors to deal with workplace complaints after a worker was mocked by his supervisor for making a discrimination claim to the Anti-Discrimination Board.

The worker had claimed that he had been discriminated against on the basis of his race, presumed disability and carer’s responsibilities. However, these claims were not accepted by the Tribunal as the worker failed to prove he was treated less favourably than a person who did not share those attributes.

The worker also claimed that, as a result of his complaint, he was victimised at work. In particular, he alleged that his team leader ridiculed him about the confidential negotiations concerning his complaint.

In considering the victimisation complaint, the Tribunal noted that in order for the worker to make out his case, the worker “must satisfy the Tribunal that he both suffered a detriment and that a real, genuine or true reason for him being subjected to the detriment was his having lodged a complaint of discrimination.”

The Tribunal upheld the worker’s complaint that he had been mocked by his team leader about his discrimination complaint after the employer’s HR department told the team leader of the confidential negotiations. The mocking by his team leader was sufficient for the worker to have been found to have suffered a detriment. Further, the Tribunal found that, “the real reasons for [the team leader’s] actions... were his disapproval of [the worker] making and pursuing his complaint.”

The Tribunal awarded the worker a nominal amount of $5000 for hurt feelings based on the victimisation. It also ordered the employer to train its managers, supervisors and HR staff on dealing with workplace complaints.

Key Points: It is important for employers to ensure that managers and supervisors, as well as HR employees, are well trained on dealing with workplace complaints. It should be reinforced that they are to maintain the confidentiality of negotiations conducted during internal and/or external investigations concerning any grievance raised by employees.