Hello, you're listening to Law for Community Workers, a podcast for community and health workers on legal topics. My name is Stephanie Hawes and I'm a lawyer in the Community Legal Education Team here at Legal Aid. And I'd like to acknowledge that this podcast is recorded on Aboriginal land. I pay my respects to Elders past and present always was always will be Aboriginal land. Today in this episode, I'm speaking with Madeleine Causbrook. She's a solicitor and the clinical supervisor at Kingsford Legal Centre. We'll be discussing case study as well as legal ideas and themes around sexual harassment in the workplace. Today's topic might be distressing for some of our listeners. I'd like to mention that at the top and I'd also like to follow on from that with some support services that you can reach out to if you would like some help. Bravehearts which is 1-800-272-8311. 1800 Respect 1-800-737-7320, and Lifeline 131 114. You can also contact either LawAccess, which is the service connected to Legal Aid, 1300 888 529 and Kingsford Legal Centre, which is 9385 9566 for help and support around the themes and issues, specifically legal help that we're going to discuss in today's podcast. So now onto the podcast.
Hi Madeleine. Thank you so much for joining us on the podcast today. It's wonderful to have you on board as part of our employment series. And I know that our listeners are gonna get so much great information from you. So thank you for being here today.
It's wonderful to be here. Thank you for having me today.
And you've put together for us to start the podcast, a great and amazing scenario. But before we get into reading about what, what we're going to talk more in depth today about can you tell us a little bit about yourself, where you work and what your work looks like, as well as a little bit more about the Kingswood Legal Centre and what happens there on a day to day basis?
Absolutely. So my name is Madeleine Causbrook and I'm a solicitor and also clinical supervisor at the Kingsford Legal Centre. The Kingsford Legal Centre is a bit unique. So it is a generalist community legal centre which is based in UNSW Sydney. And as part of that general centre, we provide advice across a whole range of issues like debt, domestic and family violence, you know, whether it be in relation to employment, or it could be victim services, but we also have two specialist centres. One is our employment rights legal service. So this is a collaborative partnership with Inner City Legal Centre and Redfern Legal Centre, where these three centres work together to assist socio economically vulnerable workers and employment matters. And as a second service, we have sexual harassment and discrimination law service and that is just Kingsford Legal Centre, and that statewide so that, you know also is looking at assisting socio economically vulnerable workers and employment matters. And there's a bit of interaction between both that ERLS specialist team which is also statewide, and also the sexual harassment service. But my work is primarily working with workers and people in the community who have experienced either sexual harassment or discrimination across a range of contexts scenarios.
Thank you. Sounds like there's a lot of specialist and really specific and knowledge, a great knowledge base at Kingsford Legal Centre, especially in the areas of sexual harassment and discrimination law, which we're going to talk a little bit more about today.
So you really are very experienced in this area, which is so great to have you on board. So what I might do is, first of all read out a what we're calling a case study, and it is a made up scenario. So the characters in this scenario don't actually exist. They're not a case that you've worked on. But of course, this situation is unfortunately common, and one that you probably see very often within your day to day work, and a lot of us as lawyers would come across these kinds of issues. So as I'm reading this out, I want the listeners to know that some issues in this might be obvious to them might come across as things that they spot quite easily, but others perhaps are more hidden. So why we thought this would be a great opportunity is because this is what our listeners are going to see and come across in their day to day work helping people in their community with so I'll read it now and then afterwards we can unpack it a bit more.
Dinara contacts you, Kingsford Legal Centre because she has been annexed spectively fired from her job. And she's told that she's not a good fit at the local restaurant where she has a part time waitress role. She tells you that because she was fired before payday, she hasn't been paid for a few weeks that she's worked there, and she wants to know how she can get the money that she's owed. When you speak to her. It turns out that earlier in the week, she was fired. The long standing Chef Sam offered her a lift home after work on the way there to her home. Dinara thanks Sam for the lift, and he responds by saying, "Well, you know, looking like that you won't do any favours walking home at this hour." Sam then grabbed Dinara's hand and asked her if she has a boyfriend. Dinara felt uncomfortable by the comments and his behaviour. She thanked Sam again for the lift and asked him to drop her off at the corner, which was a few blocks from her house. The next day at work, Dinara mentioned the incident to her boss. Her boss said that he investigated the matter, and that he would get back to her. However, later that week, her boss told her that she was not a good fit for the small restaurant. He said everyone needs to get along together. Her boss told her that she was fired. Dinara said she found the whole thing really distressing. And on top of that treatment, she was only getting paid $20 an hour. She really needs to get paid for the last few weeks that she's working there. Because she's worried about not being able to afford her rent.
She's been through a lot Dinara in the last few weeks. And it sounds like there's a fair bit to unpack there. Some things I say, more obvious than others. But could you maybe just go through as an overarching look at that case study and let us know the different areas of law that do exist in Dinara's situation, and what you might need assistance with?
Yeah, definitely. And look, the reason why we thought this was a good case study is it highlights what happens for many of our clients in that sexual harassment is often not isolated, and it occurs alongside other legal breaches, whether that be no breaches of employment law legislation, or discrimination law legislation or even criminal offences. It. It rarely is an isolated incident. And we also raise it because it shows just how profound the impact can be with sexual harassment in that it can often result in your underpayments or as a result of that people's lives being affected in terms of rent or debt. It's it's really insidious in in society. And I think this case study highlights just the significance of the way that these acts can cause such harms on learning individuals lives. So for Dinara, there's a couple of things to think about. So there's the sexual harassment itself, but there's also the dismissal, which can depending on different areas of law being an act of victimisation or some other kinds of adverse action. There's of course, the underpayment of wages. And then there's the criminal assault and advising around that. So broadly speaking, sexual harassment is quite similar definition across legislation. There are three pieces of legislation that we're really looking at or three different avenues that we generally advise on. One is under the Fair Work Act. The other is looking at the sexual harassment as a form of discrimination under the Sex Discrimination Act, which is a federal piece of legislation. And then there's, of course, the state based discrimination legislation we have, which is the New South Wales Anti-Discrimination Act. So those generally speaking are the three broad areas for discrimination and employment we look at the definition of sexual harassment, though, is quite similar.
So it's unwelcome conduct of a sexual nature or request of sexual favours are a sexual advance in circumstances in which a reasonable person would have anticipated the possibility that that conduct would be offensive, humiliating or intimidating. So in Dinara's case, the comments itself about her boyfriend includes, for example, the physical touch could be sexual harassment. There might also be other cases that, you know, we haven't spoken about in her workplace that have raised similar kinds of issues. I guess so firstly, you know, we look at the Fair Work Act, which has a very similar definition, and there's a complaint process there. And there's actually a new sexual harassment jurisdiction, which has come into place from the 6th of March, where now we're advising clients of their rights to make a complaint to the commission and have that dealt with and that could be by way of compensation or it could be, you know, other acts, maybe potentially some commitment to investigating what has happened and preventing it from reoccurring. In the Fair Work Commission, though, there are I'm sure lots of other avenues that you you hear about there's unfair dismissal, which we could discuss with her about how she's been dismissed, and the circumstances surrounding that being unfair and, you know, should not have happened and that since then there's also, you know, general protections claims that you can run, which basically look more at the sexual harassment, but also, under the law, you're not allowed to take adverse action, like dismissing someone because they make a complaint. And they, they try and exercise their rights in relation to that. So lots of different avenues available under that that act.
And then of course, there's the the other two processes, which is the Sex Discrimination Act, which is the federal jurisdiction for discrimination complaints, and then the state one, and, again, the the definition of sexual harassment is similar with discrimination cases. But there are different, you know, things to consider whether you go state or federal in terms of making a discrimination complaint, like time limits, like caps on compensation and things like that.
So that's, I guess, the employment discrimination hat there would be advising her on, though there are other issues like the underpayment you know, she should have been paid out her leave. And, you know, it's often common that in many workplaces, it's only until someone is dismissed, that they realise they might have been underpaid and other aspects of their work. So we'll be looking at, you know, the relevant award that applies to Dinara and whether or not there had been other issues that arose in relation to underpayment.
There's, of course court processes now, whether it's, you know, the federal courts or the local court pursuing debt claims, but something we try to do in our practice is really avoid sexual harassment victims survivors from having to pursue multiple avenues at once we try and resolve the underpayment through one of the employment discrimination routes. And then of course, there's things to think about in terms of reporting to the police. I know this, in this case, he had touched her hand, and that is, you know, a form of assault. Often we have other cases where there is a sexual assault or there is intimidation or threat. So, as part of our service, we will be talking to the client about whether or not she would like to pursue a police complaint. And that can also impact the other avenues in terms of things like evidence and in how she tells the story. So there's a lot there to unpack. But generally speaking, there's employment discrim, there's police complaints, there's also victim services, AVOs, a whole range of avenues for our clients that we look at.
Yeah, and I think it's really interesting that even though we haven't mentioned here Dinara's age or background, these these matters affect people throughout our community of all varying ages and experiences. Some issues we've talked about, as our team here at Legal Aid, is that a lot of these issues, especially in the employment space can affect young people, especially because they are quite vulnerable in the sense of being of an age difference, perhaps less experience, especially in what they think might be appropriate in the workplace. So I thought it was really interesting how you said, these include have been happening for some time, and perhaps it was just the pay that triggered Dinara in this incident coming to see you. But, of course, we know that often a legal issue rarely ever stands on its own. It's so great that your service offers what I would refer to as a wraparound approach, you know, they offer you offering different areas of law, legal assistance, as well as advising on those other kinds of spaces, like getting support with the police. The other thing I thought was important to kind of touch on are those time limits. So it's always great to inform our listeners on kind of important ones. And I know they can be all different and there's obviously no obligation on community workers or even clients to know what they are, but it is, I think, a great spot to pop them in if you have got some there. I think that the reclaiming underpayment of wages is six years from end of employment.
Absolutely. So there's a lot to unpack. So of course, so with underpayments, generally you've got six years from the date the payment was owed to file in the local court or the Federal Circuit Court of Australia have a small claims division there. With employment matters. So with if there's a dismissal involved, you've got 21 days from the day after the dismissal takes effect to lodge and applications that covers unfair dismissal. So when you're basically arguing the dismissal as itself was harsh, unjust or unreasonable, but also for general protections involving dismissal. So those cases are more about you know, when you're arguing that someone has taken adverse action, like a dismissal because of a workplace complaint or exercising a workplace right or because of a protected attribute like sex or because of temporary illness. And then you also have, generally speaking, if there's no dismissal if she'd remained in her job, and she's wanted to raise the sexual harassment, she could also go to the Fair Work Commission, and make a sexual harassment complaint. And there's a general disputes division there. And if she's still employed, she can also seek a stop sexual harassment order. Discrimination, there's been a lot of reform in the past couple of years. So now there's 24 months from the date of discrimination to lodge any kind of complaint that covers sexual harassment in the federal sphere. In the state sphere, it's it's tough that 12 months from the date that you experienced discrimination to lodge a complaint in those terms. So, again, there's there's a lot of different factors to think about that, you know, the timeframe is something that we generally press with our clients, and generally speaking, if there is a dismissal, or it could be that her employer just stops giving her shifts, and she's not sure what that means. If they're, you know, dismissal isn't always um, terminating, you sometimes be constructive, it can be through words and conduct. And you know, if that situation arises, the best thing to do is just getting into a lawyer, and, you know, unpacking the case in its entirety, so definitely dismissal, and talk to us as quickly as you can.
That's quick, isn't it? 21 days. And, of course, we do not expect our listeners to know all those legal requirements. But I suppose the biggest and most important messages, if you see any of these issues, just be aware that they sometimes can be legal time limits to make complaints for things. So the sooner you act, the better off really.
Yeah, definitely. And the other thing I just wanted to touch base on is, you mentioned that the age can be a very significant factor. And we in our experience, often see sexual harassment as a power play, where there are power imbalances, whether that way because of age or because of race, or a number of other attributes, disability, you know, culturally with linguistically diverse experience, that is something that is factored into sexual harassment law. And I think it's important that our listeners understand that in that, particularly in the federal law, you know, the test of sexual harassment looks at you know, whether or not the person who conducting the harassment could have anticipated the harm. And if you're a younger person, and you feel like it's your first job, and you don't know what you're doing, and you're just learning, or there is another reason why you're particularly at risk of harm, because of your background, and because of your might be that you had prior experiences of sexual harassment, and your workplace knows that or it might be other issues of gender based violence. Those are things that, you know, decision makers do look at. So, absolutely, we raised all of these intersectional attributes in our cases. And it's important to know that it goes towards the seriousness of what happens in often our experience.
And I suppose the law always uses those somewhat ambiguous terms, you know, the reasonable person, what does the reasonable person could have assumed, but in those instances, putting the courts put in the position where they look at all the circumstances around what a reasonable person in the situation that existed with all of the circumstances. So that's really good point to remind our listeners about. So in that instance, with Dinara's case scenario you've met with her. I suppose the first step would be to do what we've just done, kind of talk through those options and those issues. What kind of assistance could you and your service there at Kingswood Legal Centre offer Dinara?
Yep. So firstly, for all our clients, we are contactable in a range of ways. So just going back to the beginning, you can contact us by telephone, you can contact us by email. You can walk in and book an appointment here in person. How quickly we can see a client depends on our resources and capabilities. But generally speaking with sexual harassment matters, we have a commitment to trauma informed and practice and trying to get clients as soon as possible into that first advice appointment. And particularly if the client has other attributes that are compounding the disadvantage might be that they are an Aboriginal person or a Torres Strait Islander person or have a disability. These are all factors that we do take very seriously and we try and ensure that we can be trauma informed in our approach.
After that initial advice appointment that might be a one hour appointment. Sometimes it can be longer sometimes if it's really traumatic material, we might need to do a couple of appointments just to get that full instructions. Very frequently. It's as I said, you know, complex in nature, what has happened, but also touches on a range of, you know, really difficult, you know, things that have happened and we worked with a client with those those issues as best we can in that approach. But after that appointment, sometimes we can do legal tasks. So it might be that the client wants assistance with drafting an applicant action or a complaint as into can jump in and help them with doing that. Sometimes, someone like Dinara might be dismissed and there might not be a reason given or there might not be any written correspondence, we can help in drafting a letter or an email just to ask I want, I want reasons why was dismissed, or it could be payslips.
In her case, it's really important for us to know, you know what her payment was actually and whether or not she was paid correctly, according to the award or any other applicable workplace instrument. So we will be sometimes helping with emailing employers to get those documents. And you know, that it could also be sometimes if we don't have the capacity to represent, we might be looking for subsequent appointments, and we assist the client across a range of different appointments might be leading up to the conciliation or another event, or otherwise, if we do have the resources and capacity and the the cases, fitting within our strategic guidelines, we will absolutely, if we can represent the client and that will involve free representation, we will assist the client with lodging the complaint running the mandatory conciliation, negotiating with the employer and the other respondents and trying to get an outcome. Or it could be representing the client NCAT New South Wales tribunal for discrimination matters or it could be in the court. So representation from us is free. Though sometimes we have to, like all community legal centres, get different clients to pay different disbursements, or will might need to brief a barrister and there'll be other pro bono arrangements that can be had there.
Yeah, so it sounds like your support that you offer clients is really tailored to each person. Perhaps what they want - some clients we find come in, and they just want to know what their rights are, they might not actually want legal representation, they might just want to be feel informed and know what they can do as well as some people might feel like they can do it themselves. But then on the flip side of that there's people that are really vulnerable and need that support and guidance throughout their whole legal matter. And that whole process.
You mentioned just before things like payslips and sending letters to request documents, especially for people who are vulnerable, who we've just discussed, most of the people that experienced these kinds of legal matters, what kind of information and evidence could you be requesting? Or perhaps could we let our listeners know about trying to gather and, and record keep along the way, if they do think that maybe this is going to be something they would like to get help with? Like, what could they bring along to the appointment that might be helpful to you?
Definitely. So I guess, going back from the very beginning, something we encourage clients, even if they haven't had the chance to have an appointment yet, and it's just they've called up for advice. Sometimes we will ask them to write down on a Word document to the best of their memory, a timeline of what happened, what was said, often we ask clients to the best of their memory, try and recall exact words or words to the effect. So we have a bit of a sense of what happened, that that document can be helpful. Firstly, to try and get an as contemporaneous record as possible of what happened. But also, it can be a way for the client to not have to start from the beginning we say before the client comes, generally what has happened and and where they're up to. But it's definitely something that we we say, you know, if the incident has happened record somewhere safe, don't record on employment, renew materials, or databases, what has happened, you know, private notepad or or your own laptop, so you have that record. And similarly, if there are witnesses, if there was someone who I know, in Dinara's case, there was no one in the car, but if there was, if if you know, you could talk to them and get their statement or, you know, you could even just ask them, you know, would you be willing to assist me with this process or be witnessed if it came to it just flagging early, that can be helpful and again, it needs to be someone that you trust and as safe and appropriate for the case in every case is very factually dependent.
In terms of employment records - often we would like to see from our clients things like contracts if there is an employment contract or there's a letter they got from their employment provider when they started about the terms and conditions of their employment. Again, payslips employers are by law required to provide payslips within a day of someone being paid, but often they don't. But if there is that can be really helpful. And other things to consider, I guess, you know, if there is medical evidence, you know, starting to, to know that early sometimes our clients come with, you know, documents from doctors about, you know, for example, if they had to take time off work for a period or they gave their employer a medical certificate seen that can be helpful to understand the timeline. So really just record keeping as much as possible on those terms can be really be helpful and make the advice appointment just go a lot more smoothly and make it easier to tell the client what's happening in their case.
Yeah, and I was just thinking then when you were saying, you know, there might be someone that saw what happened to Dinara, maybe even a colleague at work that had been through a similar thing. It's great to kind of have support people around you, would you also be keen or be welcoming of someone to bring in a person with them to the point where they felt good support them through that process, which, of course, is always a tricky one.
Definitely. So we always do have support persons as as an option for our clients a couple of things to think about, we support people. So if if the person who experienced a sexual harassment wanted to bring a support person who was a witness, sometimes we we don't think that's the best idea because we don't want to taint that that person is a witness needs to provide their own independent recollection of what happened. And we if the matter needs to be litigated, don't want to be in a position where that story is attacked for being too closely corroborated with with with a complainants account. So that is not often that the best support person but, of course, friends, close members of their family, sometimes we have social workers, or we'll have other support workers come. The main thing for support people is just making it clear to the client, as we always do that, when we're advising a client, it's confidential, privileged legal advice, and the client needs to be happy that there's being heard by someone else. And firstly, if there's no conflict, it's just really secondly, making sure that they fully understand that so that doesn't arise later.
I always say that us lawyers are required by law to keep secrets. But sometimes the poor people aren't. So to make sure that they're definitely someone that you trust, before you bring them along.
Similarly, if they might be still working for the employer, I mean, we just make it clear that, you know, we can't guarantee what the situation will be, but our clients are survivors, they know what they've been through. And they often know what they need in order to be in a space to get advice and to hear it. And we just encourage them as best we can to make that that journey as supportive as possible.
And you've already mentioned that your service is free, I suppose, when there is what we have here at Legal Aid as a means and merit staff. So I'm sure that your service has something similar, depending on how much money you have might depend on how much money you end up paying for the service. Is that what the situation is there? And if not, how much money do these matters? cost to run? And how long do they usually really take to to kind of get a resolution?
Yep. So our employment rights legal service, is generally operating where we're primarily looking at clients who earn 80k or less, but the sexual harassment discrimination service is much broader. And we we will advise a vast number of, of clients and it really whether or not we can represent depends on yet that how much they need our assistance in terms of their financial circumstances. So there's less of a cap, it's more of looking at on a case by case basis. And sexual harassment discrimination is a key priority area, and particularly when there are intersectional factors or, you know, compounded disadvantage with other complex legal issues. Those are things we take into account in deciding to represent. So there's no hard and fast rule, it's more of a conversation we have as a centre based on our resources. Looking at those, I guess, you know, priority areas that we focus on, in my work, the biggest thing that we advise our clients on is it the risk factors in terms of litigating a matter and if a case is going through the Australian Human Rights Commission, it doesn't settle and you're looking at court. There is that costs risk where if you bring a case and you lose, the court can order you to pay the legal fees of the other side. But that's that's not a risk in now state jurisdiction. So federal jurisdiction and NCAT doesn't work like that, certainly in exceptional circumstances if you lose your order to pay the other side's legal fees. And similarly for the Fair Work Commission process, it's more of that cost neutrality approach though, it's a little bit different, but looking at really exceptional circumstances like bringing an unmeritorious claim or acting vexatious litigating or, you know, causing unreasonable expense.
And of course, there are things that you would be updating your client on the whole way through and they would, even though some of these things might sound a bit legal and a bit overwhelming, all in one concentrated hit. The beauty of having support along the whole wager legal process is that you'll be updated as everything happens.
Absolutely. And look, we we do give very, very comprehensive initial advice so the client understands generally speaking the costs of the different approaches I could take two that is done up front.
And finally, it'd be really great if you could gear up our listeners who are mostly support and community workers that listen along to, I suppose, spot these kinds of issues but also to support the people that might be experiencing these matters, perhaps had been told a story where they can relate with a couple of things that perhaps happened with denaro to their clients, or maybe even something more serious or something that they that they want to know how best to support their clients and colleagues and friends and people in the community.
Yeah, no, absolutely. Look, I think it's, it's so simple, but powerful, being a good listener, is is vital. And if someone starts disclosing something that's happened at work, or it might not even be at work, it might be in education, or another area of public life, just listening to what they're saying. And with our experience with sexual harassment in particular, there are so many different forms and types of sexual harassment, unwelcome conduct of a sexual nature is broad, it could be physical touching, like in Dinara's case, it could be sexist comments, or it could be suggestions or innuendo or, or banter that really crosses a line in terms of making the person offended and, and just listening without judgement and trying to encourage the person to, to tell their story and to tell, tell it had the pace that they want as well, it might be sometimes that the individual starts telling you a bit and then says, I want to talk to you about this later, and just giving them that space to confide and encouraging them to access all the support available. So often, I know, social workers have many hats, but you know, counselling is always always there for for clients, whether that be through full stop Australia, they have free counselling, you know, one 800 respects there, or, you know, through Victim Services counsellors, or their GP can refer them to a mental health plan, encouraging the person to get help, even initially, in that context, as well as then supporting them to get that legal advice they need and, and being practical and saying, "there are options available. I don't know, I might not know the law. But I've heard of a centre available, Legal Aid's available or you know, if you can afford it, there is private practitioners around listening and providing that wraparound support."
And from our experience that one of the good things that have happened recently is that the sexual harassment timeline, at least at the federal sphere has been extended to 24 months. So there's more time for individuals for that jurisdiction to make a complaint. And we think that really reflects sexual harassment because often it does take time for an individual to, to just start processing what has happened and to find someone that they feel at the right time, can hear their story to then start thinking about what they want going forward.
All like in Dinara's case might not have felt that that was the overriding issue that they came to see you about, and it becomes apparent through a different course of action.
Thank you so much for taking us through those issues. It sounds like you've got a wealth of knowledge and it sounds like your service there is really based on a client focused, wraparound approach. No issue is gonna go left unaddressed and I really just want to thank you for your time today and sharing your knowledge and encourage anyone that has any other questions to reach out through us here at the CLE branch or straight to Kingswood Legal Service if you'd like to know more. Again, thank you so much for joining us on the podcast.
Thank you very much.
Thank you so much for listening to the Law for Community Workers podcast produced by Legal Aid New South Wales. I would like to again, thank our guests for joining us today Madeleine Causbrook and I'd like to provide the number to contact if you or someone you know could benefit from help from the Kingsford Legal Centre. The number is 9385 9566. Or you can call Law Access for help from legal aid on 1300 888 529. You can always contact the CLE team, the Community Legal Education Team here at Legal Aid by email as well. That email is cle@legalaid.nsw.gov.au And as always, you can find links to topics and the contact numbers that I've just mentioned in the show notes. We look forward to talking to you again soon. Bye