Human Rights Act – employment claims

The Human Rights Act 2019 (Qld) (HRA), which is expected to commence operation on 1 January 2020, will materially influence public sector decision-making in Queensland by limiting the exercise of government power.  It is essential for public entities to prepare for the new regime as it will place a magnifying glass over decision making.

This article, part of an ongoing series examining some implications of the HRA for government, looks at employment law impacts of the HRA. The HRA will extend to public sector employment arrangements.

Which human rights are likely to impact employment law?  

The HRA establishes 23 categories of human rights. Of these, several may be relevant to the regulation of the employment relationship, in particular:

• Right of freedom of expression – a person’s right to hold an opinion without interference, which includes the freedom to seek, receive and impart information and ideas of all kinds.[1]
• Right of freedom of thought, conscience religion and belief – a person’s right to have a religious belief of their choice and to demonstrate that belief in public or in private without being restrained in a way that limits the freedom to have that belief.[2]
• Right of peaceful assembly and freedom of association – every person has the right of peaceful assembly and the right to freedom of association with others, including the right to form and join trade unions.[3]
• Right of privacy and reputation – a person’s right not to have their privacy, family, home or correspondence unlawfully interfered with and not to have their reputation attacked.[4]
• Cultural rights (general) – people with a particular cultural, religious, racial or linguistic background must not be denied the right, in community with others of that background, to enjoy their culture, to declare and practise their religion and to use their language.[5]

Depending on individuals’ circumstances, other rights could also be of relevance.

Impact on employment law

Public sector employees claiming breach of the HRA by public entities may complain to the Queensland Human Rights Commission (QHRC) for a conciliated outcome or seek substantive relief.

Conciliation

QHRC is the vehicle for accessible and affordable complaints.[6]

Before QHRC will accept a complaint, it must be satisfied that the complaint was originally made to the public entity and handled in a manner that the aggrieved person considers to be inadequate.[7] QHRC may reject a complaint if it considers the matter to be frivolous, trivial, vexatious, misconceived or lacking in substance.[8]

QHRC may make inquiries and request information,[9] direct parties to attend conciliation[10] and to refer complaints to other entities.[11] Conciliation will not necessarily produce an outcome and does not affect other rights.[12] However, where a complaint is unresolved, QHRC must prepare a report which may include details of action the Commissioner considers the respondent should take to ensure its acts and decisions are compatible with human rights.[13] The report could be the basis of a further report published by the Commissioner from time to time, including an annual report which may name public entities with unresolved complaints.[14]

Substantive relief

The ability to make a claim for relief or remedy under the HRA is predicated on the complainant having the right to make an independent claim relating to the impugned decision.[15]

An increasingly common employment complaint is a claim for adverse action, where an employee asserts prejudice or discrimination as a result of a choice to exercise or not exercise a workplace right. If an applicant submits an adverse action claim to the Queensland Industrial Relations Commission (QIRC), the claim could be piggybacked by claim for relief or remedy (other than damages[16]) under the HRA.  The QIRC would then be required to consider, with certain exceptions,[17] whether;

• the adverse action was incompatible the applicant’s human rights; or
• the employer, in taking the adverse action, failed to give proper consideration to human rights.[18]

A claim for human rights relief could also be piggybacked on a claim for breach of employment contract.

While the practical effect of the HRA on public sector employment law in Queensland has not yet been felt, there may be lessons drawn from Victoria’s experience with its similar Charter of Human Rights and Responsibilities Act 2006 (Charter). In Victoria there have been a considerable number of cases were an employment action claim has been piggybacked by a supplementary claim under the Charter.[19]  The majority of have been rejected for lack of merit.[20]

Case Study

A matter currently reserved before the High Court (Comcare v Banerji[21]) provides a useful case study not only about potential public sector claims but also possible differences under the new regime.

During Ms Banerji’s six year tenure as an employee for the Australian Public Service, she posted over 9000 anonymous tweets which heavily criticised the federal government, the immigration portfolio and her departmental superior.  Ms Banerji was dismissed after a workplace investigation determined that she had breached the APS Code of Conduct (relevantly, social media guidelines relating to public comments on government policy) in the Public Service Act 1999 (Cth). Ms Banerji suffered a post-traumatic stress disorder after her dismissal and, ultimately, the Administrative Appeals Tribunal found that the termination was not reasonable administrative action, unacceptably trespassing on the implied freedom of political communication. The matter was removed from the Federal Court to the High Court, in which it has been argued but not determined.

If the High Court finds for Ms Banerji, the human rights implications will be second order issues behind a constitutionally implied freedom. However, one of the issues before the court is whether the AAT wrongly treated the implied freedom as an individual right rather than a limit on legislative power. Had the matter arisen in circumstances where the HRA applied, this would not be an issue; the action clearly would limit a statutory human right and the court would apply a proportionality test to determine whether the department was entitled to limit that right in the circumstances.  Ms Banerji’s arguments before the court include that, for transparency and accountability reasons, public sector employment necessitates that greater scope be given to freedom of expression than for other employment relationships.

Key takeaway

Public entities should take a variety of steps towards comprehension of, and compliance with, the HRA, including:

• culture training to assure compliance;
• administrative training to handle human rights complaints;
• revision of policies (including grievance policies) and codes of conduct for compatibility with human rights; and
• consideration of how human rights claims should appropriately and lawfully be managed within the employment contract context.

[1] HRA s 21.

[2] HRA s 20.

[3] HRA s 22.

[4] HRA s 25.

[5] HRA s 27.

[6] Affected individuals can make complaints about alleged contraventions by public entities to the Human Rights Commissioner – HRA ss 63 and 64.  The Commissioner is the rebadged Anti-Discrimination Commissioner.  Note that human rights models in Victoria and ACT do not have this complaints mechanism.

[7] HRA s 65.

[8] HRA s 69.

[9] HRA s 78

[10] HRA s 79.

[11] HRA s 73.

[12] HRA s 87

[13] HRA s 88(4)

[14] HRA s 91

[15] HRA s 59

[16] HRA s 59(3)

[17] For example, if the entity could not reasonably have acted differently (such as giving effect to a statutory provision that is not compatible with human rights) (HRA s 58(2)) or an act or decision of a private nature (HRA s 58(3)).

[18] HRA s 58(5).

[19] For example, Kuyken v Chief Commissioner of Police [2015] VSC 204

[20] For example, Sabet v Medical Practitioners Board of Victoria (2008) 20 VR 414, [2008] VSC 346.

[21] Comcare v Banerji (C12/2018)