What happened?
A female police officer has successfully brought an action for sex discrimination
against the Victorian Police in the Victorian Anti-Discrimination Tribunal. Senior
Constable Narell McKenna claimed that she had been sexually harassed, suffered
discrimination, and been victimised while working as a police officer at
the Bairnsdale police station in country Victoria.
Ms McKenna is the first female police
officer, still serving, to bring a case to the Anti-Discrimination Tribunal against the
police force. She claimed that she had endured physical and emotional mistreatment because
of her sex, that she had not been promoted as she deserved, and that a bogus disciplinary
charge had been brought against her.
Before she arrived at Bairnsdale she had been given
excellent performance assessments by her superiors, who had variously described her as
conscientious and dedicated. She was supported in her application by the Victoria Police
Association. The police, represented by a Queen's Counsel, vehemently denied the
accusations, producing evidence that alleged McKenna was difficult to work with and
subject to outbursts. The police brought to the hearing other female
officers who had served at Bairnsdale, who, with one exception, uniformly described the
atmosphere as friendly.
What is discrimination?
There are laws in each Australian State that deal with allegations of discrimination -
but what exactly is discrimination, and how do you know if you have a legal claim against
someone because of "discrimination"?
In general, discrimination occurs when a
person's rights or opportunities have been denied because of their sex, religion, marital
status, race, disability etc. As you might have already guessed, this is a lot easier said
than proved in a court (or tribunal).
Where do you go?
The allegations against the police were made by Ms McKenna under the Victorian Equal
Opportunity Act. There are similar rights in other States, for example, in New South Wales
you would go to the Anti-Discrimination Board.
You can also make the same allegations
under Human Rights and Equal Opportunity legislation. Anyone who believes they have suffered
discrimination should generally get legal advice and/or complain to their State equal opportunity body (like the Equal
Opportunity Commission or Anti-Discrimination Board). The case by Ms McKenna is a good
example of an allegation of sex discrimination.
What is sexual harassment?
You hear this term a lot, but it is rarely explained, particularly with regard to legal
sexual harassment. In general, it refers to some sort of unwelcome sexual advance or an
unwelcome request for a sexual favour, in a situation where any reasonable person would
realise it would cause intimidation or offence.
It includes sexual innuendo or
inappropriate humour, for instance, offensive sexual material passed around an office or
offensive jokes. For the law to take notice of it as a discrimination issue, it must occur
in an employment or educational setting, or in relation to the provision of accommodation,
some sort of service or the activities of clubs. Ms McKenna complained about
harassment that she alleged occurred at her workplace.
Besides sexual harassment,
employers are not allowed to discriminate against an employee because of their sex,
whether it is to do with hiring and firing, a restriction or denial of promotion or
opportunities (one of Ms McKenna's complaints).
How do you prove discrimination?
Good question! Usually you make a complaint to the equal opportunity body in your
State, or the Commonwealth Human Rights and Equal Opportunity Commission, and they
investigate it. They will try to settle the complaint, but if this cannot be achieved, or
you don't agree with the settlement, you can take the complaint to a specialist Tribunal.
Of course, you also have to prove that the discrimination actually occurred. For instance,
if you complain that you were refused a promotion because of your sex, you can bet the
employer will claim it was because of poor performance, or other reasons that would apply
to any employee, whether male or female.
In the McKenna case, the police brought female
police from the station who described the attitude of their employer as fair. But Ms
McKenna also raised issues that were harder to refute: for instance, that she had been
denied access to a four-wheel drive course and the opportunity to take duties at a
"one-member" bush station. Her barrister brought out evidence that suggested
these were traditionally considered to be duties better suited to male officers.
What the Tribunal said
The Tribunal awarded Ms McKenna $125,000 for "damages", for stress and
suffering as a result of the discrimination - "damages" is a legal term for the
monetary compensation given to someone by a court or tribunal.
This is a record compensation payment
for a case of sexual discrimination. The Tribunal described the behaviour of the senior
police officers as very serious, and found that Ms McKenna had unfavourable comments
included in her employment record. The police later claimed that the Tribunal had not
acknowledged the real efforts of the force to promote a workplace where harassment is not
tolerated.
The police may appeal to the Supreme Court, but they can only do this on a
"question of law", which means they have to find a problem with the way the
Tribunal applied the law contained in the Equal Opportunity Act. In other words, they
cannot simply say that the Tribunal made the wrong decision because they misinterpreted
the facts, so it is a limited right of appeal.
No matter, because the message is quite
clear - long gone are the days when discrimination will be tolerated in the workplace, and
women who are prepared to express dissatisfaction with alleged discrimination may have a
powerful ally in the law.
Read this: The legal information contained above is
intended to be general information about the law. It is not a substitute for legal and
other professional advice. Lawscape Communications P/L does not accept responsibility for
loss to any person, who either acts or does not act because of this information.
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