'Remedies' are the outcomes of a complaint of discrimination, sexual harassment or victimisation.
A court or tribunal can order remedies if your complaint is proven.
You can also get remedies if you and the person or party who discriminated against you (the respondent) agrees to settle your claim without a hearing. This is called a settlement agreement. This can happen at any stage, including before you start legal proceedings, at a conciliation or mediation, or in the lead up to the hearing.
What remedies are available in a discrimination complaint?
Before a hearing your discrimination complaint can settle for anything that you and the respondent agree to. These settlements are usually private and confidential.
After a hearing a court or tribunal can make a declaration (formal statement) that you were discriminated against or order that the discriminatory conduct stop. A court or tribunal can also order that the respondent do discrimination training, or change policies or procedures (sometimes called ‘systemic remedies’), to reduce the likelihood that other people will be treated the way you were.
The most common remedy after a hearing is an award of money. This is called financial compensation or damages. The purpose of compensation is to place the person back in the position in which they would have been had the discriminatory conduct not happened. You can claim lost earnings, compensation for hurt and humiliation, and related out of pocked expenses such as medical expenses.
To get financial compensation, you need to prove you were discriminated against and you also need to prove that the loss or damage is a result of the discriminatory conduct.
How financial compensation is calculated at at a hearing
Lost earnings
If the discriminatory conduct happened at work and included dismissal, demotion or refusal of a job application you may be able to seek compensation for lost earnings. These can be separated into past lost earnings and future lost earnings.
Past lost earnings
Calculate your past lost earnings by the number of weeks since you were dismissed, demoted etc, to the current date. Then deduct (take away) any actual earnings you’ve made in that period, and any wages you received in lieu of notice.
Example
Jane’s employment was terminated when she told her employer she was pregnant. She lodged a complaint with the Victorian Equal Opportunity and Human Rights Commission and her matter was listed for a conciliation eight weeks later. As Jane received two weeks wages in lieu of notice from her employer, her past lost earnings at the date of the conciliation is six weeks wages.
Future lost earnings
Future lost earnings can be more difficult to calculate. A good starting point is to consider how long you think it will take you to find another job. It is relevant how long you would have remained in your previous job had the discrimination not occurred. Keep in mind that any future loss is likely to be capped by a court or tribunal to a reasonable period often based on how long you would have stayed working in your job, and is unlikely to exceed 12 months.
Example
Rick was working as a retail salesperson when his employment was suddenly terminated. He believes it may have been because of his religious beliefs. It took Rick two months to find the job. He thinks it will take him at least 2–3 months to find another job. He calculates the sum of three months of wages to claim as compensation for future lost earnings.
Reducing your financial loss
Mitigating your loss
You have an obligation to mitigate (reduce) your loss. This means that if you wish to claim compensation for lost earnings you need to show that you were trying to find other work in the relevant period. Keep a record of any jobs you apply for (such as emails or dated application forms). Damages for lost income will be reduced if a court or tribunal decides you haven’t done enough to reduce your loss.
You may not be required to look for alternative employment if the discriminatory conduct caused an injury to you which would prevent you from working anyway. You would need medical evidence to support this.
Vicissitudes
Any award of compensation for economic (financial) loss is likely to be discounted (reduced) to reflect 'vicissitudes' of life (or unpredictable life occurrences). For instance, a court or tribunal might take into account the possibility that your employment could have been terminated in the future for another lawful reason. This discount is usually between 15–25 per cent of the amount awarded.
Lost entitlements
You can also claim any benefits (such as superannuation) you would have received if you hadn't been discriminated against. This may also include things like annual leave or long service leave.
Hurt and humiliation
Compensation for hurt and humiliation is also called ‘general damages’ or ‘pain and suffering’. It can be more difficult to quantify (determine) and any award is at the discretion of the court or tribunal.
If you are seeking compensation for hurt and humiliation it will help if you can provide evidence of the psychological impact the discrimination had on you, or any other adverse (negative) effects. If you had a pre-existing mental health condition, this does not prevent you from seeking hurt and humiliation, but you should get medical evidence setting out how your illness came back or got worse because of the discriminatory conduct.
Medical expenses
You may also be able to claim for out-of-pocket medical expenses and reasonable future medical expenses including counselling sessions. It will be important to show that these expenses are due to the discriminatory conduct. You should get a medical report supporting your need for treatment and provide details of the length of treatment and cost.
Things to consider when seeking financial compensation
Centrelink
You are required to notify Centrelink if you receive compensation. A settlement amount could affect the payments you receive from Centrelink. If you receive compensation for lost income you may be ineligible for Centrelink payments for a period, or have to repay money you received back to Centrelink.
Tax
If you receive any compensation for lost income it is likely that income tax will be deducted from that amount. Usually income tax is not deducted from awards representing compensation for hurt and humiliation or general damages.
Medicare
If you are seeking compensation for out of pocket medical expenses, including treatment that you received because of the discrimination, you might have to repay some money to Medicare if the treatment was covered by Medicare (that is, if you received a rebate).
Workers compensation
In addition to having a claim for discrimination, you may also be eligible to make a workers compensation claim. You should speak to a personal injury lawyer about the impact of any lump sum settlement for lost income on your workers compensation entitlements. VLA guidelines do not cover claims for workers compensation.
Keep in mind
There are more remedies available at a conciliation or mediation stage and few limits to what you can suggest as an outcome. You can ask for an apology or a statement of service, anti-discrimination training for the person who treated you badly, or the introduction of workplace policies around discrimination and sexual harassment. Refer to Fact sheet: ‘Achieving a positive outcome at conciliation or mediation’.
Other support
Find out how you can get other support for discrimination.
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