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Self-Representation Toolkit: Making a Sexual Harassment Complaint to Equal Opportunity SA

Introduction

This is the Working Women’s Centre SA second instalment of our sexual harassment self-representation toolkit series. Our previous factsheet on ‘Making a Sexual Harassment Complaint to the Australian Human Rights Commission’ can be viewed here.

This factsheet will guide you through making a sexual harassment complaint to Equal Opportunity SA (EOSA). You have 12 months from the date the sexual harassment conduct occurred to make your complaint.

REMINDER: You can only make a sexual harassment complaint in one jurisdiction!

Unsure of whether to make a complaint under federal laws or state (SA) laws? One jurisdiction may be better than the other depending on how much time has passed since the incident, where your employer is located, etc. It is important to get legal advice before making a complaint.

 

  1. Make sure you are using the correct form

You can either complete the form online or print out a paper version to post or email to EOSA.

There is no fee to make a complaint to EOSA.

 

  1. Filling out the form

Part A – Complainant details (About you)

As you are the person making the complaint, you are the ‘Complainant.

Insert your details and contact information. You do not need to include your address if you are not comfortable doing so.

Part B – Organisation or individual you are complaining about

The organisation(s) and/or person(s) you are complaining about are called ‘Respondents’ as they will be responding to your complaint. This can be your employer (ie the company or business), individual manager(s) and/or the individual(s) who perpetrated the sexual harassment.

Insert the details of all the Respondents you want to include. For example, Respondent 1 – (Employer details), Respondent 2 – (individual’s details), etc.

Part C – What is your complaint about?

Under ‘When did the alleged event(s) happen?’ insert the date or time period of when the sexual harassment occurred.

Select ‘I have been sexually harassed’ and any other boxes that apply. Being victimised is when a person has been treated unfairly because they made a complaint or tried to make a complaint. If this happened to you, select this box too.

Under ‘Where did these things happen?’ select ‘Employment’.

Under ‘Please tell us what happened, and why you think it is discrimination, sexual harassment or victimisation’ insert relevant details about what happened to you, including dates, names of individuals, locations, etc. Avoid long, complicated paragraphs. It is best to use headings, numbered paragraphs and dot points.

You can also create a separate document to answer this section and attach it to your complaint. If you do this, simply write, ‘Please see attached complaint summary’ under this section.

Include any documents that may support your complaint, including letters from your employer, text messages, screenshots and/or photos which evidence the sexual harassment.

Under ‘What (if anything) have you done to try to resolve your complaint?’ insert relevant details (eg if you made previous complaint(s) within the workplace and their outcome(s)).

Under ‘Have you talked to another organisation about this?’ answer accordingly (eg if you contacted SafeWork SA, the Fair Work Ombudsman, etc.)

Under ‘What effect (financial or personal) did the unfair treatment have on you?’ insert relevant details about how the harassment affected you (eg confidence, self-esteem, financially due to being unable to attend work and/or medical expenses, stress, etc.). Please seek legal advice if you have made or intend to make a workers compensation claim.

Under ‘How do you think this complaint could be resolved?’ insert your preferred outcome(s). This can include: a letter of apology, compensation for financial losses you experienced because of the harassment (eg lost wages, medical expenses), compensation for stress, suffering or humiliation (non-economic loss), an agreement for the Respondent(s) to undergo relevant training or to change their policies and procedures.

Statistical Information

Complete this section to help EOSA gather data about discrimination. Your details will not be made public.

Lodging the complaint

Once your complaint form is finalised and signed and you have all your supporting documents together, you can submit the documents in one of the following ways (online or email is preferable):

Note: If you are making another claim (eg an underpayment claim) against the same employer in the South Australian Employment Tribunal (SAET), then you can apply to have both matters ‘joined’ and dealt together with in SAET. At the time of lodging your EOSA complaint, notify EOSA of your SAET claim and request that your EOSA complaint be joined to the SAET claim and referred to SAET. 

 

  1. What happens once I submit the complaint?

After submitting your complaint, you will receive an acknowledgement email from EOSA.

Once accepted, your complaint will then be allocated to a Commissioner or Conciliation Officer. They will contact you about resolving the complaint through a conciliation conference.

 

  1. Conciliation conference

A conciliation conference is a confidential meeting between the Complainant (you), the Respondent(s) and a Commissioner or Conciliation Officer from EOSA who will help parties communicate and guide discussion by raising questions and making suggestions to assist the parties in reaching a resolution. The Commissioner or Conciliation Officer is impartial, does not take sides and cannot make any decisions.

Conciliations are conducted ‘without prejudice’, which means nothing that is said in the conciliation can be referred to in future proceedings if the matter does not resolve at conciliation.

Tip: Mark your calendar with the conciliation date

You will receive an email from EOSA with details of the conciliation. This will include the date, time and location. Conciliations can be held online, in-person or over the phone. Typically, they occur via MS Teams.

It is important that you attend the conciliation because if you fail to attend, the Commissioner may see this as a lack of interest in proceeding or a failure to cooperate on your part. As a result, they may decline to recognise your complaint as one to take action on.

Preparing for conciliation

  • Review your own complaint and the Respondent’s response to your complaint. Be prepared to address or deal with any issues raised in the Respondent’s response.
  • Prepare a statement or notes for you to read from during your conciliation.
  • Have a proposal ready for how you would like to resolve the matter. Think about what you might be willing to negotiate on.
  • If your conciliation is held online or over the phone, make sure you are in a location with stable internet connection and your laptop or phone is fully charged.

During the conciliation conference

Private session

Before a conciliation begins, you will usually have a private session with the Commissioner or Conciliation Officer so they can check in with you and explain the conciliation process. The Conciliator will then have a private session with the Respondent to do the same with them.

Joint session

Then, there will be a joint session with you, the Respondent and the Commissioner or Conciliation Officer. The Commissioner or Conciliation Officer will ask the Complainant (you) to say a statement explaining your case. Here, you can tell your story and have an opportunity to be heard. You can talk about the effect the sexual harassment had on you. Remember to concentrate on key points and provide relevant information that will support your complaint. Avoid long tangents and unnecessary information.

The Commissioner or Conciliation Officer will then give the Respondent an opportunity to respond. Be respectful and do not interrupt others. If the Respondent says something you disagree with, do not assume the Commissioner or Conciliation Officer agrees with them.

You can ask for a break at any time during this process.

Once the joint session is finished, the conciliation will break into private sessions again.

Private sessions

Then, the Commissioner or Conciliation Officer will have a private session with you. They may comment on the strength and weaknesses of your respective cases. Here, you should put forward your proposal for resolving the complaint.

The Commissioner or Conciliation Officer will then have a private session with the Respondent and hear their response or counteroffer to your proposal to resolve the complaint.

The Commissioner or Conciliation Officer will continue to go between the parties with the aim to reach an agreement and pass messages between the parties.

If you and the Respondent reach an agreement, the Commissioner or Conciliation Officer can assist the parties to draw up a conciliation agreement. This is a legally binding and enforceable contract, so carefully review the terms before signing.

 

  1. What happens if the complaint is not resolved by conciliation?

If the conciliation is unsuccessful, and the Commissioner of EOSA is satisfied that the complaint cannot be resolved by conciliation, then the Commissioner will notify you of this decision.

If you would like to pursue the complaint further, you have 3 months from the date of the Commissioner’s decision to reply to the Commissioner and request them to refer your complaint to the South Australian Civil and Administrative Tribunal (SACAT).

You should seek additional legal advice before pursuing your complaint further in SACAT.

 

Contact the Working Women’s Centre on 08 8410 6499 to organise a legal advice appointment with one of our lawyers.  

 

 

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