Tuesday, January 12, 2010

What the South Australian Labor Government thinks of Complaints

After 4 years of lodging complaints with the Office of the Public Trustee (where I worked in I.T.), the Attorney-General’s Department, the Equal Opportunity Commission, and a swag of Ministers and Elected Members, we all wound up in Court. I represented myself against the 'might' of the Crown Solicitor.

As Judge Rice confirmed, very little was done in response to my on-going complaints, though, Attorney-General Michael Atkinson disagrees.

I had exercised my right as per 95B(c) of the Equal Opportunity Act 1984:

95B—Referral of complaints to Tribunal

If, in respect of a complaint, the Commissioner—

(a) is of the opinion that the matter cannot be resolved by conciliation; or

(b) has attempted to resolve the matter by conciliation but has not been successful in that attempt; or

(c) has declined to recognise the complaint as one on which action should be taken and the complainant has, within 3 months of being notified of the Commissioner's decision, by notice in writing, required the Commissioner to refer the complaint to the Tribunal, the Commissioner must refer the matter to the Tribunal for hearing and determination.

My reason for taking this action was solely to have someone made responsible for the actions of the Senior Manager and for the non-actions of the many.

My vindication from the Judge Rice Determination. The South Australian Government’s attitude towards complaints:

Extracted from:

“During this two-year period, on many occasions, I made contact with Management, with Sexual Harassment contact officers, and with various Human Resources staff members. Each & every time I stressed that this aggravated offence was continuing. It would be difficult to suggest that Management was never aware of the problems. As an observer, it would be easy to believe that the situation was totally ignored.” (Rob McKibbin evidence)

The Determination continues:

23 The Public Trustee wrote a memorandum to Mr McKibbin dated 25th September 2002, referring back to the meeting of 16th September (exhibit P3). After dealing with the formal counselling of Mr H that had already taken place, the Public Trustee responded to Mr McKibbin’s assertions referred to in his note of 16th September as quoted above. The Public Trustee said this: -

“You will no doubt be aware that I cannot act officially until I receive a formal complaint. I have been informed that only once during this period was a formal complaint laid and this resulted in a mediation session and counselling for those involved. It is my understanding that your approaches to various Contact Officers, Peer Support Officers and Management during this period were made informally and no official complaint was filed.”

24 The Public Trustee refers to the need for a “formal complaint”. Mr McKibbin told us that there was a requirement by management that he put the complaint in writing before it could be acted upon. There is certainly no requirement that a complaint should be in writing. We would understand the reference to “formal complaint” to be a complaint that the person making the complaint wants it to be acted upon. However, in our view, the responsibilities of management do not depend upon whether the initiator of the complaint wishes the behaviour to be acted upon. Indeed, the responsibilities of management to take action do not even depend upon a complaint. For example, management may be aware by observation that a situation of actual or potential sexual harassment exists. Management would be obliged to act in the absence of a complaint and even in the face of a desire by the person against whom the conduct was directed, that no action be taken. We have more to say about that later, especially exhibit P7.

143 It is not enough to wait for a complaint before appropriate action needs to be taken by managers/employers. An employer’s obligation to prevent discrimination, harassment and victimisation does not begin at the time that a formal complaint (e.g. a written note from, or documentation provided by, a complainant to an employer, or a written note from, or documentation provided by, an employee or manager witnessing the behaviour) is made. Certainly, if at the time a formal complaint is made, it is the first time that the employer is made aware that potentially discriminatory, harassing or victimising behaviour has occurred, and the employer takes appropriate and immediate action in response including reasonable steps to prevent contravention of the Act, the employer is more likely to have met the requisite statutory standard to avoid vicarious liability. However, if an employer is made aware informally of potentially discriminatory, harassing or victimising behaviour (e.g. observations of staff verbally conveyed to management, management observing relevant behaviour and so on) prior to a formal complaint being made, and the employer takes no action until the formal complaint is made, the fact the employer takes appropriate and commensurate action in response would not be sufficient to avoid its being found vicariously liable.”

62 We find that Mr McKibbin raised with Mr O’Neill, on a number of occasions before August 2002, the sexually suggestive conduct and behaviour of Mr H. We are unable to say on how many occasions Mr McKibbin did so, but we consider it to be a significant number. We also find that Mr McKibbin was raising these matters in the form of an oral complaint. The precise status of those complaints was the subject of dispute. Certainly there was no need for any such complaint to be in writing. In our view, the number of complaints made by Mr McKibbin and the nature of the conduct about which he was complaining, made it imperative that management intervene at an early stage. This management failed to do. The necessary policies were in place but their application was misunderstood or misguided.

65 In our view, in this instance Public Trustee impliedly authorised Mr H’s conduct (and here we are not referring to management conduct or style) by doing nothing about Mr McKibbin’s complaints or not doing sufficient about them. In our view, Public Trustee has vicariously authorised that conduct.

I got what I wanted. But, when I returned to work the following Monday, the victimisation ramped up! Then I had a further 4 years of nonsense....oh, and just like in the movies, I received a cash offer the night before to drop the case! That letter holds pride of place on my wall as evidence of how up-them-selves these clowns were at the time.

The Labor Party, in touch with the grass roots. Here, read your own dribble, "...Labor's enduring values, which were born in the collective struggle for better living and working conditions in the last century, are reflected in the progressive and reformist tradition which the Party embodies and in the continuing pursuit of a society which values our security; champions fairness and equality; believes in communities and families; promotes social justice and compassion; values environmental sustainability; supports freedom, liberty and enterprise; and strives for opportunity and aspiration..."


simmo said...

.... and a voice cried out from the wilderness, and eventually the voice will be heard ....
Sick 'em Robbo

Anonymous said...

Robbo, aint the silence deafening? Shame on the named and more shame on those not yet named! The Ides of March is approaching! Good Luck. Cheers

Anonymous said...

Take no action, See no evil, hear no evil, and talk down their foes behind their backs, that's how they do it. They certainly do not listen. See Four long years stretching ahead, as wait for real reform.

Anonymous said...

too bad there will now be no ICAC for 4 years. patience Robbo, your time will come. You have a great memory.