The government recently submitted a proposal to Parliament for the establishment of a low-threshold service in the Anti-discrimination Tribunal for the processing of alleged unlawful retaliation in notification cases.
If an employee has notified about censurable conditions at the employer's undertaking and considers themselves exposed to illegal retaliation, the employee must take legal action to clarify the dispute in the court. The financial risk involved means that few such cases are processed in the courts.
To strengthen the protection of whistleblowers, the government proposes to establish a low-threshold offer where a tribunal is given the authority to resolve disputes about alleged retaliation after whistleblowing. The government proposes that this authority be added to the Anti-discrimination Tribunal.
Complaints to the Anti-discrimination Tribunal are free and no lawyer is required. Complainants do not risk having to pay the other party's legal costs. However, there is a long case-processing time in the Anti-discrimination Tribunal – almost eight months – so it is uncertain how much faster the cases will be processed in the Anti-discrimination Tribunal compared with the courts.
The proposal means that the Anti-discrimination Tribunal will have the authority to:
- assess the existence of an illegal retaliation; and
- provide redress for non-economic loss and, in some cases, compensation for damages to an employee who has been subjected to illegal retaliation after notification.
The government proposes that the Anti-discrimination Tribunal will not have the authority to deal with cases of retaliation in the form of:
- dismissal;
- termination; or
- termination and offer of new employment on new terms.
These disputes must still be brought before the courts.
The government does not propose changes to the case processing rules that apply to the Anti-discrimination Tribunal. If the proposal is adopted, it means that cases will normally be carried out by written case processing instead of oral hearings.
There will be no deadline for reporting claims to the Anti-discrimination Tribunal but the Anti-discrimination Tribunal will be able to reject cases where the disputed matters are older than three years. Both employers and employees can take legal action and file lawsuits within three months after a decision by the Anti-discrimination Tribunal.
The proposal will now be considered by Parliament.
