October 19, 2023 • 34 mins
In this episode, Stephanie Hawes from Legal Aid NSW chats to Madeleine Causbrook from the Employment Rights Legal Service about their service and a case study on sexual harassment in the workplace.
Legal services: Employment Rights Legal Service: www.erls.org.au and 02 8004 3270
Kingsford Legal Centre website: www.klc.unsw.edu.au and 02 9385 9566
Legal Aid NSW's Respect At Work Legal Service: 02 9072 2333 LawAccess: 1300 888 529 Support services: Lifeline: 13 11 14
Bravehearts: 1800 272 8311 1800 RESPECT: 1800 737 7320
Disclaimer: This podcast is a general guide to the law. You should not rely on it as legal advice. We recommend that you talk to a lawyer about any particular situation. The information is correct at the time of publishing but it may change. For more information, start with our team at LawAccess NSW via webchat at www.legalaid.nsw.gov.au or on 1300 888 529.
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Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Steph (Legal Aid NSW) (00:02):
Hello, you're listening to Law for
Community Workers, a podcast forcommunity and health workers on
legal topics. My name isStephanie Hawes and I'm a lawyer
in the Community Legal EducationTeam here at Legal Aid. And I'd
like to acknowledge that thispodcast is recorded on
Aboriginal land. I pay myrespects to Elders past and
present always was always willbe Aboriginal land. Today in
(00:26):
this episode, I'm speaking withMadeleine Causbrook. She's a
solicitor and the clinicalsupervisor at Kingsford Legal
Centre. We'll be discussing casestudy as well as legal ideas and
themes around sexual harassmentin the workplace. Today's topic
might be distressing for some ofour listeners. I'd like to
mention that at the top and I'dalso like to follow on from that
(00:48):
with some support services thatyou can reach out to if you
would like some help.Bravehearts which is
1-800-272-8311. 1800 Respect1-800-737-7320, and Lifeline 131
114. You can also contact eitherLawAccess, which is the service
(01:10):
connected to Legal Aid, 1300 888529 and Kingsford Legal Centre,
which is 9385 9566 for help andsupport around the themes and
issues, specifically legal helpthat we're going to discuss in
today's podcast. So now onto thepodcast.
(01:31):
Hi Madeleine. Thank you so muchfor joining us on the podcast
today. It's wonderful to haveyou on board as part of our
employment series. And I knowthat our listeners are gonna get
so much great information fromyou. So thank you for being here
today.
Madeleine (KLC) (01:47):
It's wonderful to be here. Thank you for having
me today.
Steph (Legal Aid NSW) (01:49):
And you've put together for us to
start the podcast, a great andamazing scenario. But before we
get into reading about what,what we're going to talk more in
depth today about can you tellus a little bit about yourself,
where you work and what yourwork looks like, as well as a
(02:12):
little bit more about theKingswood Legal Centre and what
happens there on a day to daybasis?
Madeleine (KLC) (02:17):
Absolutely. So my name is Madeleine Causbrook
and I'm a solicitor and alsoclinical supervisor at the
Kingsford Legal Centre. TheKingsford Legal Centre is a bit
unique. So it is a generalistcommunity legal centre which is
based in UNSW Sydney. And aspart of that general centre, we
provide advice across a wholerange of issues like debt,
(02:38):
domestic and family violence,you know, whether it be in
relation to employment, or itcould be victim services, but we
also have two specialistcentres. One is our employment
rights legal service. So this isa collaborative partnership with
Inner City Legal Centre andRedfern Legal Centre, where
these three centres worktogether to assist socio
(02:59):
economically vulnerable workersand employment matters. And as a
second service, we have sexualharassment and discrimination
law service and that is justKingsford Legal Centre, and that
statewide so that, you know alsois looking at assisting socio
economically vulnerable workersand employment matters. And
there's a bit of interactionbetween both that ERLS
(03:21):
specialist team which is alsostatewide, and also the sexual
harassment service. But my workis primarily working with
workers and people in thecommunity who have experienced
either sexual harassment ordiscrimination across a range of
contexts scenarios.
Steph (Legal Aid NSW) (03:37):
Thank you. Sounds like there's a lot
of specialist and reallyspecific and knowledge, a great
knowledge base at KingsfordLegal Centre, especially in the
areas of sexual harassment anddiscrimination law, which we're
going to talk a little bit moreabout today.
So you really are veryexperienced in this area, which
is so great to have you onboard. So what I might do is,
(04:00):
first of all read out a whatwe're calling a case study, and
it is a made up scenario. So thecharacters in this scenario
don't actually exist. They'renot a case that you've worked
on. But of course, thissituation is unfortunately
common, and one that youprobably see very often within
(04:20):
your day to day work, and a lotof us as lawyers would come
across these kinds of issues. Soas I'm reading this out, I want
the listeners to know that someissues in this might be obvious
to them might come across asthings that they spot quite
easily, but others perhaps aremore hidden. So why we thought
this would be a greatopportunity is because this is
(04:45):
what our listeners are going tosee and come across in their day
to day work helping people intheir community with so I'll
read it now and then afterwardswe can unpack it a bit more.
Dinara contacts you, KingsfordLegal Centre because she has
been annexed spectively firedfrom her job. And she's told
that she's not a good fit at thelocal restaurant where she has a
(05:07):
part time waitress role. Shetells you that because she was
fired before payday, she hasn'tbeen paid for a few weeks that
she's worked there, and shewants to know how she can get
the money that she's owed. Whenyou speak to her. It turns out
that earlier in the week, shewas fired. The long standing
Chef Sam offered her a lift homeafter work on the way there to
(05:30):
her home. Dinara thanks Sam forthe lift, and he responds by
saying, "Well, you know, lookinglike that you won't do any
favours walking home at thishour." Sam then grabbed Dinara's
hand and asked her if she has aboyfriend. Dinara felt
uncomfortable by the commentsand his behaviour. She thanked
Sam again for the lift and askedhim to drop her off at the
(05:51):
corner, which was a few blocksfrom her house. The next day at
work, Dinara mentioned theincident to her boss. Her boss
said that he investigated thematter, and that he would get
back to her. However, later thatweek, her boss told her that she
was not a good fit for the smallrestaurant. He said everyone
needs to get along together. Herboss told her that she was
(06:13):
fired. Dinara said she found thewhole thing really distressing.
And on top of that treatment,she was only getting paid $20 an
hour. She really needs to getpaid for the last few weeks that
she's working there. Becauseshe's worried about not being
able to afford her rent.
She's been through a lot Dinarain the last few weeks. And it
sounds like there's a fair bitto unpack there. Some things I
(06:36):
say, more obvious than others.But could you maybe just go
through as an overarching lookat that case study and let us
know the different areas of lawthat do exist in Dinara's
situation, and what you mightneed assistance with?
Madeleine (KLC) (06:51):
Yeah, definitely. And look, the reason
why we thought this was a goodcase study is it highlights what
happens for many of our clientsin that sexual harassment is
often not isolated, and itoccurs alongside other legal
breaches, whether that be nobreaches of employment law
legislation, or discriminationlaw legislation or even criminal
(07:13):
offences. It. It rarely is anisolated incident. And we also
raise it because it shows justhow profound the impact can be
with sexual harassment in thatit can often result in your
underpayments or as a result ofthat people's lives being
affected in terms of rent ordebt. It's it's really insidious
(07:37):
in in society. And I think thiscase study highlights just the
significance of the way thatthese acts can cause such harms
on learning individuals lives.So for Dinara, there's a couple
of things to think about. Sothere's the sexual harassment
itself, but there's also thedismissal, which can depending
(07:59):
on different areas of law beingan act of victimisation or some
other kinds of adverse action.There's of course, the
underpayment of wages. And thenthere's the criminal assault and
advising around that. So broadlyspeaking, sexual harassment is
quite similar definition acrosslegislation. There are three
pieces of legislation that we'rereally looking at or three
(08:22):
different avenues that wegenerally advise on. One is
under the Fair Work Act. Theother is looking at the sexual
harassment as a form ofdiscrimination under the Sex
Discrimination Act, which is afederal piece of legislation.
And then there's, of course, thestate based discrimination
legislation we have, which isthe New South Wales
Anti-Discrimination Act. Sothose generally speaking are the
(08:43):
three broad areas fordiscrimination and employment we
look at the definition of sexualharassment, though, is quite
And then of course, there's thethe other two processes, which
similar.
So it's unwelcome conduct of asexual nature or request of
sexual favours are a sexualadvance in circumstances in
which a reasonable person wouldhave anticipated the possibility
that that conduct would beoffensive, humiliating or
(09:03):
intimidating. So in Dinara'scase, the comments itself about
her boyfriend includes, forexample, the physical touch
could be sexual harassment.There might also be other cases
that, you know, we haven'tspoken about in her workplace
that have raised similar kindsof issues. I guess so firstly,
is the Sex Discrimination Act,which is the federal
you know, we look at the FairWork Act, which has a very
(09:24):
similar definition, and there'sa complaint process there. And
there's actually a new sexualharassment jurisdiction, which
has come into place from the 6thof March, where now we're
advising clients of their rightsto make a complaint to the
commission and have that dealtwith and that could be by way of
compensation or it could be, youknow, other acts, maybe
jurisdiction for discriminationcomplaints, and then the state
(09:45):
potentially some commitment toinvestigating what has happened
and preventing it fromreoccurring. In the Fair Work
Commission, though, there areI'm sure lots of other avenues
that you you hear about there'sunfair dismissal, which we could
discuss with her about how she'sbeen dismissed, and the
circumstances surrounding thatbeing unfair and, you know,
(10:06):
should not have happened andthat since then there's also,
you know, general protectionsclaims that you can run, which
one, and, again, the thedefinition of sexual harassment
basically look more at thesexual harassment, but also,
under the law, you're notallowed to take adverse action,
like dismissing someone becausethey make a complaint. And they,
they try and exercise theirrights in relation to that. So
(10:26):
lots of different avenuesavailable under that that act.
So that's, I guess, theemployment discrimination hat
is similar with discriminationcases. But there are different,
(11:00):
there would be advising her on,though there are other issues
like the underpayment you know,she should have been paid out
you know, things to considerwhether you go state or federal
her leave. And, you know, it'soften common that in many
workplaces, it's only untilsomeone is dismissed, that they
realise they might have beenunderpaid and other aspects of
their work. So we'll be lookingat, you know, the relevant award
(11:21):
that applies to Dinara andwhether or not there had been
other issues that arose inrelation to underpayment.
There's, of course courtprocesses now, whether it's, you
know, the federal courts or thelocal court pursuing debt
claims, but something we try todo in our practice is really
in terms of making adiscrimination complaint, like
avoid sexual harassment victimssurvivors from having to pursue
multiple avenues at once we tryand resolve the underpayment
(11:43):
through one of the employmentdiscrimination routes. And then
of course, there's things tothink about in terms of
reporting to the police. I knowthis, in this case, he had
touched her hand, and that is,you know, a form of assault.
Often we have other cases wherethere is a sexual assault or
time limits, like caps oncompensation and things like that.
there is intimidation or threat.So, as part of our service, we
(12:04):
will be talking to the clientabout whether or not she would
like to pursue a policecomplaint. And that can also
impact the other avenues interms 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 avenuesfor our clients that we look at.
Steph (Legal Aid NSW) (12:26):
Yeah, and I think it's really interesting
that even though we haven'tmentioned here Dinara's age or
background, these these mattersaffect people throughout our
community of all varying agesand experiences. Some issues
we've talked about, as our teamhere at Legal Aid, is that a lot
(12:46):
of these issues, especially inthe employment space can affect
young people, especially becausethey are quite vulnerable in the
sense of being of an agedifference, perhaps less
experience, especially in whatthey think might be appropriate
in the workplace. So I thoughtit was really interesting how
you said, these include havebeen happening for some time,
(13:07):
and perhaps it was just the paythat triggered Dinara in this
incident coming to see you. But,of course, we know that often a
legal issue rarely ever standson its own. It's so great that
your service offers what I wouldrefer to as a wraparound
approach, you know, they offeryou offering different areas of
law, legal assistance, as wellas advising on those other kinds
(13:31):
of spaces, like getting supportwith the police. The other thing
I thought was important to kindof touch on are those time
limits. So it's always great toinform our listeners on kind of
important ones. And I know theycan be all different and there's
obviously no obligation oncommunity workers or even
clients to know what they are,but it is, I think, a great spot
(13:53):
to pop them in if you have gotsome there. I think that the
reclaiming underpayment of wagesis six years from end of
employment.
Madeleine (KLC) (14:01):
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 wasowed to file in the local court
or the Federal Circuit Court ofAustralia have a small claims
division there. With employmentmatters. So with if there's a
dismissal involved, you've got21 days from the day after the
(14:23):
dismissal takes effect to lodgeand applications that covers
unfair dismissal. So when you'rebasically arguing the dismissal
as itself was harsh, unjust orunreasonable, but also for
general protections involvingdismissal. So those cases are
more about you know, when you'rearguing that someone has taken
adverse action, like a dismissalbecause of a workplace complaint
(14:43):
or exercising a workplace rightor because of a protected
attribute like sex or because oftemporary illness. And then you
also have, generally speaking,if there's no dismissal if she'd
remained in her job, and she'swanted to raise the sexual
harassment, she could also go tothe Fair Work Commission, and
make a sexual harassmentcomplaint. And there's a general
(15:07):
disputes division there. And ifshe's still employed, she can
also seek a stop sexualharassment order.
Discrimination, there's been alot of reform in the past couple
of years. So now there's 24months from the date of
discrimination to lodge any kindof complaint that covers sexual
harassment in the federalsphere. In the state sphere,
it's it's tough that 12 monthsfrom the date that you
(15:28):
experienced discrimination tolodge a complaint in those
terms. So, again, there'sthere's a lot of different
factors to think about that, youknow, the timeframe is something
that we generally press with ourclients, and generally speaking,
if there is a dismissal, or itcould be that her employer just
stops giving her shifts, andshe's not sure what that means.
(15:50):
If they're, you know, dismissalisn't always um, terminating,
you sometimes be constructive,it can be through words and
conduct. And you know, if thatsituation arises, the best thing
to do is just getting into alawyer, and, you know, unpacking
the case in its entirety, sodefinitely dismissal, and talk
to us as quickly as you can.
Steph (Legal Aid NSW) (16:10):
That's quick, isn't it? 21 days. And,
of course, we do not expect ourlisteners to know all those
legal requirements. But Isuppose the biggest and most
important messages, if you seeany of these issues, just be
aware that they sometimes can belegal time limits to make
complaints for things. So thesooner you act, the better off
(16:31):
really.
Madeleine (KLC) (16:32):
Yeah, definitely. And the other thing
I just wanted to touch base onis, you mentioned that the age
can be a very significantfactor. And we in our
experience, often see sexualharassment as a power play,
where there are powerimbalances, whether that way
because of age or because ofrace, or a number of other
attributes, disability, youknow, culturally with
(16:55):
linguistically diverseexperience, that is something
that is factored into sexualharassment law. And I think it's
important that our listenersunderstand 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 couldhave anticipated the harm. And
(17:18):
if you're a younger person, andyou feel like it's your first
job, and you don't know whatyou're doing, and you're just
learning, or there is anotherreason why you're particularly
at risk of harm, because of yourbackground, and because of your
might be that you had priorexperiences of sexual
harassment, and your workplaceknows that or it might be other
issues of gender based violence.Those are things that, you know,
(17:39):
decision makers do look at. So,absolutely, we raised all of
these intersectional attributesin our cases. And it's important
to know that it goes towards theseriousness of what happens in
often our experience.
Steph (Legal Aid NSW) (17:50):
And I suppose the law always uses
those somewhat ambiguous terms,you know, the reasonable person,
what does the reasonable personcould have assumed, but in those
instances, putting the courtsput in the position where they
look at all the circumstancesaround what a reasonable person
in the situation that existedwith all of the circumstances.
(18:12):
So that's really good point toremind our listeners about. So
in that instance, with Dinara'scase scenario you've met with
her. I suppose the first stepwould be to do what we've just
done, kind of talk through thoseoptions and those issues. What
kind of assistance could you andyour service there at Kingswood
Legal Centre offer Dinara?
Madeleine (KLC) (18:34):
Yep. So firstly, for all our clients, we
are contactable in a range ofways. So just going back to the
beginning, you can contact us bytelephone, you can contact us by
email. You can walk in and bookan appointment here in person.
How quickly we can see a clientdepends on our resources and
capabilities. But generallyspeaking with sexual harassment
(18:57):
matters, we have a commitment totrauma informed and practice and
trying to get clients as soon aspossible into that first advice
appointment. And particularly ifthe client has other attributes
that are compounding thedisadvantage might be that they
are an Aboriginal person or aTorres Strait Islander person or
have a disability. These are allfactors that we do take very
(19:19):
seriously and we try and ensurethat we can be trauma informed
in our approach.
After that initial adviceappointment that might be a one
hour appointment. Sometimes itcan be longer sometimes if it's
really traumatic material, wemight need to do a couple of
appointments just to get thatfull instructions. Very
frequently. It's as I said, youknow, complex in nature, what
(19:39):
has happened, but also toucheson a range of, you know, really
difficult, you know, things thathave happened and we worked with
a client with those those issuesas best we can in that approach.
But after that appointment,sometimes we can do legal tasks.
So it might be that the clientwants assistance with drafting
an applicant action or acomplaint as into can jump in
(20:02):
and help them with doing that.Sometimes, someone like Dinara
might be dismissed and theremight not be a reason given or
there might not be any writtencorrespondence, we can help in
drafting a letter or an emailjust to ask I want, I want
reasons why was dismissed, or itcould be payslips.
In her case, it's reallyimportant for us to know, you
(20:23):
know what her payment wasactually and whether or not she
was paid correctly, according tothe award or any other
applicable workplace instrument.So we will be sometimes helping
with emailing employers to getthose documents. And you know,
that it could also be sometimesif we don't have the capacity to
represent, we might be lookingfor subsequent appointments, and
(20:44):
we assist the client across arange of different appointments
might be leading up to theconciliation or another event,
or otherwise, if we do have theresources and capacity and the
the cases, fitting within ourstrategic guidelines, we will
absolutely, if we can representthe client and that will involve
(21:05):
free representation, we willassist the client with lodging
the complaint running themandatory conciliation,
negotiating with the employerand the other respondents and
trying to get an outcome. Or itcould be representing the client
NCAT New South Wales tribunalfor discrimination matters or it
could be in the court. Sorepresentation from us is free.
(21:26):
Though sometimes we have to,like all community legal
centres, get different clientsto pay different disbursements,
or will might need to brief abarrister and there'll be other
pro bono arrangements that canbe had there.
Steph (Legal Aid NSW) (21:38):
Yeah, so it sounds like your support that
you offer clients is reallytailored to each person. Perhaps
what they want - some clients wefind come in, and they just want
to know what their rights are,they might not actually want
legal representation, they mightjust want to be feel informed
and know what they can do aswell as some people might feel
(21:58):
like they can do it themselves.But then on the flip side of
that there's people that arereally vulnerable and need that
support and guidance throughouttheir whole legal matter. And
that whole process.
You mentioned just before thingslike payslips and sending
letters to request documents,especially for people who are
vulnerable, who we've justdiscussed, most of the people
(22:20):
that experienced these kinds oflegal matters, what kind of
information and evidence couldyou be requesting? Or perhaps
could we let our listeners knowabout trying to gather and, and
record keep along the way, ifthey do think that maybe this is
going to be something they wouldlike to get help with? Like,
what could they bring along tothe appointment that might be
(22:42):
helpful to you?
Madeleine (KLC) (22:43):
Definitely. So I guess, going back from the
very beginning, something weencourage clients, even if they
haven't had the chance to havean appointment yet, and it's
just they've called up foradvice. Sometimes we will ask
them to write down on a Worddocument to the best of their
memory, a timeline of whathappened, what was said, often
we ask clients to the best oftheir memory, try and recall
(23:05):
exact words or words to theeffect. So we have a bit of a
sense of what happened, thatthat document can be helpful.
Firstly, to try and get an ascontemporaneous record as
possible of what happened. Butalso, it can be a way for the
client to not have to start fromthe beginning we say before the
client comes, generally what hashappened and and where they're
(23:25):
up to. But it's definitelysomething that we we say, you
know, if the incident hashappened 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 someonewho I know, in Dinara's case,
(23:45):
there was no one in the car, butif there was, if if you know,
you could talk to them and gettheir statement or, you know,
you could even just ask them,you know, would you be willing
to assist me with this processor be witnessed if it came to it
just flagging early, that can behelpful and again, it needs to
be someone that you trust and assafe and appropriate for the
(24:08):
case in every case is veryfactually dependent.
In terms of employment records -often we would like to see from
our clients things likecontracts if there is an
employment contract or there's aletter they got from their
employment provider when theystarted about the terms and
conditions of their employment.Again, payslips employers are by
law required to provide payslipswithin a day of someone being
(24:29):
paid, but often they don't. Butif there is that can be really
helpful. And other things toconsider, I guess, you know, if
there is medical evidence, youknow, starting to, to know that
early sometimes our clients comewith, you know, documents from
doctors about, you know, forexample, if they had to take
time off work for a period orthey gave their employer a
(24:51):
medical certificate seen thatcan be helpful to understand the
timeline. So really just recordkeeping as much as possible on
those terms can be really behelpful and make the advice
appointment just go a lot moresmoothly and make it easier to
tell the client what's happeningin their case.
Steph (Legal Aid NSW) (25:09):
Yeah, and I was just thinking then when
you were saying, you know, theremight be someone that saw what
happened to Dinara, maybe even acolleague at work that had been
through a similar thing. It'sgreat to kind of have support
people around you, would youalso be keen or be welcoming of
someone to bring in a personwith them to the point where
they felt good support themthrough that process, which, of
(25:29):
course, is always a tricky one.
Madeleine (KLC) (25:31):
Definitely. So we always do have support
persons as as an option for ourclients a couple of things to
think about, we support people.So if if the person who
experienced a sexual harassmentwanted to bring a support person
who was a witness, sometimes wewe don't think that's the best
idea because we don't want totaint that that person is a
(25:54):
witness needs to provide theirown independent recollection of
what happened. And we if thematter needs to be litigated,
don't want to be in a positionwhere that story is attacked for
being too closely corroboratedwith with with a complainants
account. So that is not oftenthat the best support person
but, of course, friends, closemembers of their family,
(26:14):
sometimes we have socialworkers, or we'll have other
support workers come. The mainthing for support people is just
making it clear to the client,as we always do that, when we're
advising a client, it'sconfidential, privileged legal
advice, and the client needs tobe happy that there's being
heard by someone else. Andfirstly, if there's no conflict,
it's just really secondly,making sure that they fully
(26:35):
understand that so that doesn'tarise later.
Steph (Legal Aid NSW) (26:39):
I always say that us lawyers are required
by law to keep secrets. Butsometimes the poor people
aren't. So to make sure thatthey're definitely someone that
you trust, before you bring themalong.
Madeleine (KLC) (26:49):
Similarly, if they might be still working for
the employer, I mean, we justmake it clear that, you know, we
can't guarantee what thesituation will be, but our
clients are survivors, they knowwhat they've been through. And
they often know what they needin order to be in a space to get
advice and to hear it. And wejust encourage them as best we
(27:09):
can to make that that journey assupportive as possible.
Steph (Legal Aid NSW) (27:12):
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 andmerit staff. So I'm sure that
your service has somethingsimilar, depending on how much
money you have might depend onhow much money you end up paying
for the service. Is that whatthe situation is there? And if
not, how much money do thesematters? cost to run? And how
(27:38):
long do they usually really taketo to kind of get a resolution?
Madeleine (KLC) (27:41):
Yep. So our employment rights legal service,
is generally operating wherewe're primarily looking at
clients who earn 80k or less,but the sexual harassment
discrimination service is muchbroader. And we we will advise a
vast number of, of clients andit really whether or not we can
(28:02):
represent depends on yet thathow much they need our
assistance in terms of theirfinancial circumstances. So
there's less of a cap, it's moreof looking at on a case by case
basis. And sexual harassmentdiscrimination is a key priority
area, and particularly whenthere are intersectional factors
or, you know, compoundeddisadvantage with other complex
(28:24):
legal issues. Those are thingswe take into account in deciding
to represent. So there's no hardand fast rule, it's more of a
conversation we have as a centrebased on our resources. Looking
at those, I guess, you know,priority areas that we focus on,
in my work, the biggest thingthat we advise our clients on is
it the risk factors in terms oflitigating a matter and if a
(28:47):
case is going through theAustralian Human Rights
Commission, it doesn't settleand you're looking at court.
There is that costs risk whereif you bring a case and you
lose, the court can order you topay the legal fees of the other
side. But that's that's not arisk in now state jurisdiction.
So federal jurisdiction and NCATdoesn't work like that,
certainly in exceptionalcircumstances if you lose your
(29:09):
order to pay the other side'slegal fees. And similarly for
the Fair Work Commissionprocess, it's more of that cost
neutrality approach though, it'sa little bit different, but
looking at really exceptionalcircumstances like bringing an
unmeritorious claim or actingvexatious litigating or, you
know, causing unreasonableexpense.
Steph (Legal Aid NSW) (29:28):
And of course, there are things that
you would be updating yourclient on the whole way through
and they would, even though someof these things might sound a
bit legal and a bitoverwhelming, all in one
concentrated hit. The beauty ofhaving support along the whole
wager legal process is thatyou'll be updated as everything
happens.
Madeleine (KLC) (29:48):
Absolutely. And look, we we do give very, very
comprehensive initial advice sothe client understands generally
speaking the costs of thedifferent approaches I could
take two that is done up front.
Steph (Legal Aid NSW) (30:03):
And finally, it'd be really great if
you could gear up our listenerswho are mostly support and
community workers that listenalong to, I suppose, spot these
kinds of issues but also tosupport the people that might be
experiencing these matters,perhaps had been told a story
(30:24):
where they can relate with acouple of things that perhaps
happened with denaro to theirclients, or maybe even something
more serious or something thatthey that they want to know how
best to support their clientsand colleagues and friends and
people in the community.
Madeleine (KLC) (30:43):
Yeah, no, absolutely. Look, I think it's,
it's so simple, but powerful,being a good listener, is is
vital. And if someone startsdisclosing something that's
happened at work, or it mightnot even be at work, it might be
in education, or another area ofpublic life, just listening to
what they're saying. And withour experience with sexual
(31:03):
harassment in particular, thereare so many different forms and
types of sexual harassment,unwelcome conduct of a sexual
nature is broad, it could bephysical touching, like in
Dinara's case, it could besexist comments, or it could be
suggestions or innuendo or, orbanter that really crosses a
line in terms of making theperson offended and, and just
listening without judgement andtrying to encourage the person
(31:27):
to, to tell their story and totell, tell it had the pace that
they want as well, it might besometimes that the individual
starts telling you a bit andthen says, I want to talk to you
about this later, and justgiving them that space to
confide and encouraging them toaccess all the support
available. So often, I know,social workers have many hats,
(31:48):
but you know, counselling isalways always there for for
clients, whether that be throughfull stop Australia, they have
free counselling, you know, one800 respects there, or, you
know, through Victim Servicescounsellors, or their GP can
refer them to a mental healthplan, encouraging the person to
get help, even initially, inthat context, as well as then
(32:11):
supporting them to get thatlegal advice they need and, and
being practical and saying,"there are options available. I
don't know, I might not know thelaw. But I've heard of a centre
available, Legal Aid's availableor you know, if you can afford
it, there is privatepractitioners around listening
and providing that wraparoundsupport."
And from our experience that oneof the good things that have
(32:33):
happened recently is that thesexual harassment timeline, at
least at the federal sphere hasbeen extended to 24 months. So
there's more time forindividuals for that
jurisdiction to make acomplaint. And we think that
really reflects sexualharassment because often it does
take time for an individual to,to just start processing what
has happened and to find someonethat they feel at the right
(32:54):
time, can hear their story tothen start thinking about what
they want going forward.
Steph (Legal Aid NSW) (32:59):
All like in Dinara's case might not have
felt that that was theoverriding issue that they came
to see you about, and it becomesapparent through a different
course of action.
Thank you so much for taking usthrough those issues. It sounds
like you've got a wealth ofknowledge and it sounds like
your service there is reallybased on a client focused,
(33:19):
wraparound approach. No issue isgonna go left unaddressed and I
really just want to thank youfor your time today and sharing
your knowledge and encourageanyone that has any other
questions to reach out throughus here at the CLE branch or
straight to Kingswood LegalService if you'd like to know
more. Again, thank you so muchfor joining us on the podcast.
Madeleine (KLC) (33:43):
Thank you very much.
Steph (Legal Aid NSW) (33:45):
Thank you so much for listening to the Law
for Community Workers podcastproduced by Legal Aid New South
Wales. I would like to again,thank our guests for joining us
today Madeleine Causbrook andI'd like to provide the number
to contact if you or someone youknow could benefit from help
from the Kingsford Legal Centre.The number is 9385 9566. Or you
(34:11):
can call Law Access for helpfrom legal aid on 1300 888 529.
You can always contact the CLEteam, the Community Legal
Education Team here at Legal Aidby email as well. That email is
cle@legalaid.nsw.gov.au And asalways, you can find links to
(34:34):
topics and the contact numbersthat I've just mentioned in the
show notes. We look forward totalking to you again soon. Bye
Hello, you're listening to Law for
Community Workers, a podcast forcommunity and health workers on
legal topics. My name isStephanie Hawes and I'm a lawyer
in the Community Legal EducationTeam here at Legal Aid. And I'd
like to acknowledge that thispodcast is recorded on
Aboriginal land. I pay myrespects to Elders past and
present always was always willbe Aboriginal land. Today in
(00:26):
this episode, I'm speaking withMadeleine Causbrook. She's a
solicitor and the clinicalsupervisor at Kingsford Legal
Centre. We'll be discussing casestudy as well as legal ideas and
themes around sexual harassmentin the workplace. Today's topic
might be distressing for some ofour listeners. I'd like to
mention that at the top and I'dalso like to follow on from that
(00:48):
with some support services thatyou can reach out to if you
would like some help.Bravehearts which is
1-800-272-8311. 1800 Respect1-800-737-7320, and Lifeline 131
114. You can also contact eitherLawAccess, which is the service
(01:10):
connected to Legal Aid, 1300 888529 and Kingsford Legal Centre,
which is 9385 9566 for help andsupport around the themes and
issues, specifically legal helpthat we're going to discuss in
today's podcast. So now onto thepodcast.
(01:31):
Hi Madeleine. Thank you so muchfor joining us on the podcast
today. It's wonderful to haveyou on board as part of our
employment series. And I knowthat our listeners are gonna get
so much great information fromyou. So thank you for being here
today.
Madeleine (KLC) (01:47):
It's wonderful to be here. Thank you for having
me today.
Steph (Legal Aid NSW) (01:49):
And you've put together for us to
start the podcast, a great andamazing scenario. But before we
get into reading about what,what we're going to talk more in
depth today about can you tellus a little bit about yourself,
where you work and what yourwork looks like, as well as a
(02:12):
little bit more about theKingswood Legal Centre and what
happens there on a day to daybasis?
Madeleine (KLC) (02:17):
Absolutely. So my name is Madeleine Causbrook
and I'm a solicitor and alsoclinical supervisor at the
Kingsford Legal Centre. TheKingsford Legal Centre is a bit
unique. So it is a generalistcommunity legal centre which is
based in UNSW Sydney. And aspart of that general centre, we
provide advice across a wholerange of issues like debt,
(02:38):
domestic and family violence,you know, whether it be in
relation to employment, or itcould be victim services, but we
also have two specialistcentres. One is our employment
rights legal service. So this isa collaborative partnership with
Inner City Legal Centre andRedfern Legal Centre, where
these three centres worktogether to assist socio
(02:59):
economically vulnerable workersand employment matters. And as a
second service, we have sexualharassment and discrimination
law service and that is justKingsford Legal Centre, and that
statewide so that, you know alsois looking at assisting socio
economically vulnerable workersand employment matters. And
there's a bit of interactionbetween both that ERLS
(03:21):
specialist team which is alsostatewide, and also the sexual
harassment service. But my workis primarily working with
workers and people in thecommunity who have experienced
either sexual harassment ordiscrimination across a range of
contexts scenarios.
Steph (Legal Aid NSW) (03:37):
Thank you. Sounds like there's a lot
of specialist and reallyspecific and knowledge, a great
knowledge base at KingsfordLegal Centre, especially in the
areas of sexual harassment anddiscrimination law, which we're
going to talk a little bit moreabout today.
So you really are veryexperienced in this area, which
is so great to have you onboard. So what I might do is,
(04:00):
first of all read out a whatwe're calling a case study, and
it is a made up scenario. So thecharacters in this scenario
don't actually exist. They'renot a case that you've worked
on. But of course, thissituation is unfortunately
common, and one that youprobably see very often within
(04:20):
your day to day work, and a lotof us as lawyers would come
across these kinds of issues. Soas I'm reading this out, I want
the listeners to know that someissues in this might be obvious
to them might come across asthings that they spot quite
easily, but others perhaps aremore hidden. So why we thought
this would be a greatopportunity is because this is
(04:45):
what our listeners are going tosee and come across in their day
to day work helping people intheir community with so I'll
read it now and then afterwardswe can unpack it a bit more.
Dinara contacts you, KingsfordLegal Centre because she has
been annexed spectively firedfrom her job. And she's told
that she's not a good fit at thelocal restaurant where she has a
(05:07):
part time waitress role. Shetells you that because she was
fired before payday, she hasn'tbeen paid for a few weeks that
she's worked there, and shewants to know how she can get
the money that she's owed. Whenyou speak to her. It turns out
that earlier in the week, shewas fired. The long standing
Chef Sam offered her a lift homeafter work on the way there to
(05:30):
her home. Dinara thanks Sam forthe lift, and he responds by
saying, "Well, you know, lookinglike that you won't do any
favours walking home at thishour." Sam then grabbed Dinara's
hand and asked her if she has aboyfriend. Dinara felt
uncomfortable by the commentsand his behaviour. She thanked
Sam again for the lift and askedhim to drop her off at the
(05:51):
corner, which was a few blocksfrom her house. The next day at
work, Dinara mentioned theincident to her boss. Her boss
said that he investigated thematter, and that he would get
back to her. However, later thatweek, her boss told her that she
was not a good fit for the smallrestaurant. He said everyone
needs to get along together. Herboss told her that she was
(06:13):
fired. Dinara said she found thewhole thing really distressing.
And on top of that treatment,she was only getting paid $20 an
hour. She really needs to getpaid for the last few weeks that
she's working there. Becauseshe's worried about not being
able to afford her rent.
She's been through a lot Dinarain the last few weeks. And it
sounds like there's a fair bitto unpack there. Some things I
(06:36):
say, more obvious than others.But could you maybe just go
through as an overarching lookat that case study and let us
know the different areas of lawthat do exist in Dinara's
situation, and what you mightneed assistance with?
Madeleine (KLC) (06:51):
Yeah, definitely. And look, the reason
why we thought this was a goodcase study is it highlights what
happens for many of our clientsin that sexual harassment is
often not isolated, and itoccurs alongside other legal
breaches, whether that be nobreaches of employment law
legislation, or discriminationlaw legislation or even criminal
(07:13):
offences. It. It rarely is anisolated incident. And we also
raise it because it shows justhow profound the impact can be
with sexual harassment in thatit can often result in your
underpayments or as a result ofthat people's lives being
affected in terms of rent ordebt. It's it's really insidious
(07:37):
in in society. And I think thiscase study highlights just the
significance of the way thatthese acts can cause such harms
on learning individuals lives.So for Dinara, there's a couple
of things to think about. Sothere's the sexual harassment
itself, but there's also thedismissal, which can depending
(07:59):
on different areas of law beingan act of victimisation or some
other kinds of adverse action.There's of course, the
underpayment of wages. And thenthere's the criminal assault and
advising around that. So broadlyspeaking, sexual harassment is
quite similar definition acrosslegislation. There are three
pieces of legislation that we'rereally looking at or three
(08:22):
different avenues that wegenerally advise on. One is
under the Fair Work Act. Theother is looking at the sexual
harassment as a form ofdiscrimination under the Sex
Discrimination Act, which is afederal piece of legislation.
And then there's, of course, thestate based discrimination
legislation we have, which isthe New South Wales
Anti-Discrimination Act. Sothose generally speaking are the
(08:43):
three broad areas fordiscrimination and employment we
look at the definition of sexualharassment, though, is quite
And then of course, there's thethe other two processes, which
similar.
So it's unwelcome conduct of asexual nature or request of
sexual favours are a sexualadvance in circumstances in
which a reasonable person wouldhave anticipated the possibility
that that conduct would beoffensive, humiliating or
(09:03):
intimidating. So in Dinara'scase, the comments itself about
her boyfriend includes, forexample, the physical touch
could be sexual harassment.There might also be other cases
that, you know, we haven'tspoken about in her workplace
that have raised similar kindsof issues. I guess so firstly,
is the Sex Discrimination Act,which is the federal
you know, we look at the FairWork Act, which has a very
(09:24):
similar definition, and there'sa complaint process there. And
there's actually a new sexualharassment jurisdiction, which
has come into place from the 6thof March, where now we're
advising clients of their rightsto make a complaint to the
commission and have that dealtwith and that could be by way of
compensation or it could be, youknow, other acts, maybe
jurisdiction for discriminationcomplaints, and then the state
(09:45):
potentially some commitment toinvestigating what has happened
and preventing it fromreoccurring. In the Fair Work
Commission, though, there areI'm sure lots of other avenues
that you you hear about there'sunfair dismissal, which we could
discuss with her about how she'sbeen dismissed, and the
circumstances surrounding thatbeing unfair and, you know,
(10:06):
should not have happened andthat since then there's also,
you know, general protectionsclaims that you can run, which
one, and, again, the thedefinition of sexual harassment
basically look more at thesexual harassment, but also,
under the law, you're notallowed to take adverse action,
like dismissing someone becausethey make a complaint. And they,
they try and exercise theirrights in relation to that. So
(10:26):
lots of different avenuesavailable under that that act.
So that's, I guess, theemployment discrimination hat
is similar with discriminationcases. But there are different,
(11:00):
there would be advising her on,though there are other issues
like the underpayment you know,she should have been paid out
you know, things to considerwhether you go state or federal
her leave. And, you know, it'soften common that in many
workplaces, it's only untilsomeone is dismissed, that they
realise they might have beenunderpaid and other aspects of
their work. So we'll be lookingat, you know, the relevant award
(11:21):
that applies to Dinara andwhether or not there had been
other issues that arose inrelation to underpayment.
There's, of course courtprocesses now, whether it's, you
know, the federal courts or thelocal court pursuing debt
claims, but something we try todo in our practice is really
in terms of making adiscrimination complaint, like
avoid sexual harassment victimssurvivors from having to pursue
multiple avenues at once we tryand resolve the underpayment
(11:43):
through one of the employmentdiscrimination routes. And then
of course, there's things tothink about in terms of
reporting to the police. I knowthis, in this case, he had
touched her hand, and that is,you know, a form of assault.
Often we have other cases wherethere is a sexual assault or
time limits, like caps oncompensation and things like that.
there is intimidation or threat.So, as part of our service, we
(12:04):
will be talking to the clientabout whether or not she would
like to pursue a policecomplaint. And that can also
impact the other avenues interms 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 avenuesfor our clients that we look at.
Steph (Legal Aid NSW) (12:26):
Yeah, and I think it's really interesting
that even though we haven'tmentioned here Dinara's age or
background, these these mattersaffect people throughout our
community of all varying agesand experiences. Some issues
we've talked about, as our teamhere at Legal Aid, is that a lot
(12:46):
of these issues, especially inthe employment space can affect
young people, especially becausethey are quite vulnerable in the
sense of being of an agedifference, perhaps less
experience, especially in whatthey think might be appropriate
in the workplace. So I thoughtit was really interesting how
you said, these include havebeen happening for some time,
(13:07):
and perhaps it was just the paythat triggered Dinara in this
incident coming to see you. But,of course, we know that often a
legal issue rarely ever standson its own. It's so great that
your service offers what I wouldrefer to as a wraparound
approach, you know, they offeryou offering different areas of
law, legal assistance, as wellas advising on those other kinds
(13:31):
of spaces, like getting supportwith the police. The other thing
I thought was important to kindof touch on are those time
limits. So it's always great toinform our listeners on kind of
important ones. And I know theycan be all different and there's
obviously no obligation oncommunity workers or even
clients to know what they are,but it is, I think, a great spot
(13:53):
to pop them in if you have gotsome there. I think that the
reclaiming underpayment of wagesis six years from end of
employment.
Madeleine (KLC) (14:01):
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 wasowed to file in the local court
or the Federal Circuit Court ofAustralia have a small claims
division there. With employmentmatters. So with if there's a
dismissal involved, you've got21 days from the day after the
(14:23):
dismissal takes effect to lodgeand applications that covers
unfair dismissal. So when you'rebasically arguing the dismissal
as itself was harsh, unjust orunreasonable, but also for
general protections involvingdismissal. So those cases are
more about you know, when you'rearguing that someone has taken
adverse action, like a dismissalbecause of a workplace complaint
(14:43):
or exercising a workplace rightor because of a protected
attribute like sex or because oftemporary illness. And then you
also have, generally speaking,if there's no dismissal if she'd
remained in her job, and she'swanted to raise the sexual
harassment, she could also go tothe Fair Work Commission, and
make a sexual harassmentcomplaint. And there's a general
(15:07):
disputes division there. And ifshe's still employed, she can
also seek a stop sexualharassment order.
Discrimination, there's been alot of reform in the past couple
of years. So now there's 24months from the date of
discrimination to lodge any kindof complaint that covers sexual
harassment in the federalsphere. In the state sphere,
it's it's tough that 12 monthsfrom the date that you
(15:28):
experienced discrimination tolodge a complaint in those
terms. So, again, there'sthere's a lot of different
factors to think about that, youknow, the timeframe is something
that we generally press with ourclients, and generally speaking,
if there is a dismissal, or itcould be that her employer just
stops giving her shifts, andshe's not sure what that means.
(15:50):
If they're, you know, dismissalisn't always um, terminating,
you sometimes be constructive,it can be through words and
conduct. And you know, if thatsituation arises, the best thing
to do is just getting into alawyer, and, you know, unpacking
the case in its entirety, sodefinitely dismissal, and talk
to us as quickly as you can.
Steph (Legal Aid NSW) (16:10):
That's quick, isn't it? 21 days. And,
of course, we do not expect ourlisteners to know all those
legal requirements. But Isuppose the biggest and most
important messages, if you seeany of these issues, just be
aware that they sometimes can belegal time limits to make
complaints for things. So thesooner you act, the better off
(16:31):
really.
Madeleine (KLC) (16:32):
Yeah, definitely. And the other thing
I just wanted to touch base onis, you mentioned that the age
can be a very significantfactor. And we in our
experience, often see sexualharassment as a power play,
where there are powerimbalances, whether that way
because of age or because ofrace, or a number of other
attributes, disability, youknow, culturally with
(16:55):
linguistically diverseexperience, that is something
that is factored into sexualharassment law. And I think it's
important that our listenersunderstand 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 couldhave anticipated the harm. And
(17:18):
if you're a younger person, andyou feel like it's your first
job, and you don't know whatyou're doing, and you're just
learning, or there is anotherreason why you're particularly
at risk of harm, because of yourbackground, and because of your
might be that you had priorexperiences of sexual
harassment, and your workplaceknows that or it might be other
issues of gender based violence.Those are things that, you know,
(17:39):
decision makers do look at. So,absolutely, we raised all of
these intersectional attributesin our cases. And it's important
to know that it goes towards theseriousness of what happens in
often our experience.
Steph (Legal Aid NSW) (17:50):
And I suppose the law always uses
those somewhat ambiguous terms,you know, the reasonable person,
what does the reasonable personcould have assumed, but in those
instances, putting the courtsput in the position where they
look at all the circumstancesaround what a reasonable person
in the situation that existedwith all of the circumstances.
(18:12):
So that's really good point toremind our listeners about. So
in that instance, with Dinara'scase scenario you've met with
her. I suppose the first stepwould be to do what we've just
done, kind of talk through thoseoptions and those issues. What
kind of assistance could you andyour service there at Kingswood
Legal Centre offer Dinara?
Madeleine (KLC) (18:34):
Yep. So firstly, for all our clients, we
are contactable in a range ofways. So just going back to the
beginning, you can contact us bytelephone, you can contact us by
email. You can walk in and bookan appointment here in person.
How quickly we can see a clientdepends on our resources and
capabilities. But generallyspeaking with sexual harassment
(18:57):
matters, we have a commitment totrauma informed and practice and
trying to get clients as soon aspossible into that first advice
appointment. And particularly ifthe client has other attributes
that are compounding thedisadvantage might be that they
are an Aboriginal person or aTorres Strait Islander person or
have a disability. These are allfactors that we do take very
(19:19):
seriously and we try and ensurethat we can be trauma informed
in our approach.
After that initial adviceappointment that might be a one
hour appointment. Sometimes itcan be longer sometimes if it's
really traumatic material, wemight need to do a couple of
appointments just to get thatfull instructions. Very
frequently. It's as I said, youknow, complex in nature, what
(19:39):
has happened, but also toucheson a range of, you know, really
difficult, you know, things thathave happened and we worked with
a client with those those issuesas best we can in that approach.
But after that appointment,sometimes we can do legal tasks.
So it might be that the clientwants assistance with drafting
an applicant action or acomplaint as into can jump in
(20:02):
and help them with doing that.Sometimes, someone like Dinara
might be dismissed and theremight not be a reason given or
there might not be any writtencorrespondence, we can help in
drafting a letter or an emailjust to ask I want, I want
reasons why was dismissed, or itcould be payslips.
In her case, it's reallyimportant for us to know, you
(20:23):
know what her payment wasactually and whether or not she
was paid correctly, according tothe award or any other
applicable workplace instrument.So we will be sometimes helping
with emailing employers to getthose documents. And you know,
that it could also be sometimesif we don't have the capacity to
represent, we might be lookingfor subsequent appointments, and
(20:44):
we assist the client across arange of different appointments
might be leading up to theconciliation or another event,
or otherwise, if we do have theresources and capacity and the
the cases, fitting within ourstrategic guidelines, we will
absolutely, if we can representthe client and that will involve
(21:05):
free representation, we willassist the client with lodging
the complaint running themandatory conciliation,
negotiating with the employerand the other respondents and
trying to get an outcome. Or itcould be representing the client
NCAT New South Wales tribunalfor discrimination matters or it
could be in the court. Sorepresentation from us is free.
(21:26):
Though sometimes we have to,like all community legal
centres, get different clientsto pay different disbursements,
or will might need to brief abarrister and there'll be other
pro bono arrangements that canbe had there.
Steph (Legal Aid NSW) (21:38):
Yeah, so it sounds like your support that
you offer clients is reallytailored to each person. Perhaps
what they want - some clients wefind come in, and they just want
to know what their rights are,they might not actually want
legal representation, they mightjust want to be feel informed
and know what they can do aswell as some people might feel
(21:58):
like they can do it themselves.But then on the flip side of
that there's people that arereally vulnerable and need that
support and guidance throughouttheir whole legal matter. And
that whole process.
You mentioned just before thingslike payslips and sending
letters to request documents,especially for people who are
vulnerable, who we've justdiscussed, most of the people
(22:20):
that experienced these kinds oflegal matters, what kind of
information and evidence couldyou be requesting? Or perhaps
could we let our listeners knowabout trying to gather and, and
record keep along the way, ifthey do think that maybe this is
going to be something they wouldlike to get help with? Like,
what could they bring along tothe appointment that might be
(22:42):
helpful to you?
Madeleine (KLC) (22:43):
Definitely. So I guess, going back from the
very beginning, something weencourage clients, even if they
haven't had the chance to havean appointment yet, and it's
just they've called up foradvice. Sometimes we will ask
them to write down on a Worddocument to the best of their
memory, a timeline of whathappened, what was said, often
we ask clients to the best oftheir memory, try and recall
(23:05):
exact words or words to theeffect. So we have a bit of a
sense of what happened, thatthat document can be helpful.
Firstly, to try and get an ascontemporaneous record as
possible of what happened. Butalso, it can be a way for the
client to not have to start fromthe beginning we say before the
client comes, generally what hashappened and and where they're
(23:25):
up to. But it's definitelysomething that we we say, you
know, if the incident hashappened 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 someonewho I know, in Dinara's case,
(23:45):
there was no one in the car, butif there was, if if you know,
you could talk to them and gettheir statement or, you know,
you could even just ask them,you know, would you be willing
to assist me with this processor be witnessed if it came to it
just flagging early, that can behelpful and again, it needs to
be someone that you trust and assafe and appropriate for the
(24:08):
case in every case is veryfactually dependent.
In terms of employment records -often we would like to see from
our clients things likecontracts if there is an
employment contract or there's aletter they got from their
employment provider when theystarted about the terms and
conditions of their employment.Again, payslips employers are by
law required to provide payslipswithin a day of someone being
(24:29):
paid, but often they don't. Butif there is that can be really
helpful. And other things toconsider, I guess, you know, if
there is medical evidence, youknow, starting to, to know that
early sometimes our clients comewith, you know, documents from
doctors about, you know, forexample, if they had to take
time off work for a period orthey gave their employer a
(24:51):
medical certificate seen thatcan be helpful to understand the
timeline. So really just recordkeeping as much as possible on
those terms can be really behelpful and make the advice
appointment just go a lot moresmoothly and make it easier to
tell the client what's happeningin their case.
Steph (Legal Aid NSW) (25:09):
Yeah, and I was just thinking then when
you were saying, you know, theremight be someone that saw what
happened to Dinara, maybe even acolleague at work that had been
through a similar thing. It'sgreat to kind of have support
people around you, would youalso be keen or be welcoming of
someone to bring in a personwith them to the point where
they felt good support themthrough that process, which, of
(25:29):
course, is always a tricky one.
Madeleine (KLC) (25:31):
Definitely. So we always do have support
persons as as an option for ourclients a couple of things to
think about, we support people.So if if the person who
experienced a sexual harassmentwanted to bring a support person
who was a witness, sometimes wewe don't think that's the best
idea because we don't want totaint that that person is a
(25:54):
witness needs to provide theirown independent recollection of
what happened. And we if thematter needs to be litigated,
don't want to be in a positionwhere that story is attacked for
being too closely corroboratedwith with with a complainants
account. So that is not oftenthat the best support person
but, of course, friends, closemembers of their family,
(26:14):
sometimes we have socialworkers, or we'll have other
support workers come. The mainthing for support people is just
making it clear to the client,as we always do that, when we're
advising a client, it'sconfidential, privileged legal
advice, and the client needs tobe happy that there's being
heard by someone else. Andfirstly, if there's no conflict,
it's just really secondly,making sure that they fully
(26:35):
understand that so that doesn'tarise later.
Steph (Legal Aid NSW) (26:39):
I always say that us lawyers are required
by law to keep secrets. Butsometimes the poor people
aren't. So to make sure thatthey're definitely someone that
you trust, before you bring themalong.
Madeleine (KLC) (26:49):
Similarly, if they might be still working for
the employer, I mean, we justmake it clear that, you know, we
can't guarantee what thesituation will be, but our
clients are survivors, they knowwhat they've been through. And
they often know what they needin order to be in a space to get
advice and to hear it. And wejust encourage them as best we
(27:09):
can to make that that journey assupportive as possible.
Steph (Legal Aid NSW) (27:12):
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 andmerit staff. So I'm sure that
your service has somethingsimilar, depending on how much
money you have might depend onhow much money you end up paying
for the service. Is that whatthe situation is there? And if
not, how much money do thesematters? cost to run? And how
(27:38):
long do they usually really taketo to kind of get a resolution?
Madeleine (KLC) (27:41):
Yep. So our employment rights legal service,
is generally operating wherewe're primarily looking at
clients who earn 80k or less,but the sexual harassment
discrimination service is muchbroader. And we we will advise a
vast number of, of clients andit really whether or not we can
(28:02):
represent depends on yet thathow much they need our
assistance in terms of theirfinancial circumstances. So
there's less of a cap, it's moreof looking at on a case by case
basis. And sexual harassmentdiscrimination is a key priority
area, and particularly whenthere are intersectional factors
or, you know, compoundeddisadvantage with other complex
(28:24):
legal issues. Those are thingswe take into account in deciding
to represent. So there's no hardand fast rule, it's more of a
conversation we have as a centrebased on our resources. Looking
at those, I guess, you know,priority areas that we focus on,
in my work, the biggest thingthat we advise our clients on is
it the risk factors in terms oflitigating a matter and if a
(28:47):
case is going through theAustralian Human Rights
Commission, it doesn't settleand you're looking at court.
There is that costs risk whereif you bring a case and you
lose, the court can order you topay the legal fees of the other
side. But that's that's not arisk in now state jurisdiction.
So federal jurisdiction and NCATdoesn't work like that,
certainly in exceptionalcircumstances if you lose your
(29:09):
order to pay the other side'slegal fees. And similarly for
the Fair Work Commissionprocess, it's more of that cost
neutrality approach though, it'sa little bit different, but
looking at really exceptionalcircumstances like bringing an
unmeritorious claim or actingvexatious litigating or, you
know, causing unreasonableexpense.
Steph (Legal Aid NSW) (29:28):
And of course, there are things that
you would be updating yourclient on the whole way through
and they would, even though someof these things might sound a
bit legal and a bitoverwhelming, all in one
concentrated hit. The beauty ofhaving support along the whole
wager legal process is thatyou'll be updated as everything
happens.
Madeleine (KLC) (29:48):
Absolutely. And look, we we do give very, very
comprehensive initial advice sothe client understands generally
speaking the costs of thedifferent approaches I could
take two that is done up front.
Steph (Legal Aid NSW) (30:03):
And finally, it'd be really great if
you could gear up our listenerswho are mostly support and
community workers that listenalong to, I suppose, spot these
kinds of issues but also tosupport the people that might be
experiencing these matters,perhaps had been told a story
(30:24):
where they can relate with acouple of things that perhaps
happened with denaro to theirclients, or maybe even something
more serious or something thatthey that they want to know how
best to support their clientsand colleagues and friends and
people in the community.
Madeleine (KLC) (30:43):
Yeah, no, absolutely. Look, I think it's,
it's so simple, but powerful,being a good listener, is is
vital. And if someone startsdisclosing something that's
happened at work, or it mightnot even be at work, it might be
in education, or another area ofpublic life, just listening to
what they're saying. And withour experience with sexual
(31:03):
harassment in particular, thereare so many different forms and
types of sexual harassment,unwelcome conduct of a sexual
nature is broad, it could bephysical touching, like in
Dinara's case, it could besexist comments, or it could be
suggestions or innuendo or, orbanter that really crosses a
line in terms of making theperson offended and, and just
listening without judgement andtrying to encourage the person
(31:27):
to, to tell their story and totell, tell it had the pace that
they want as well, it might besometimes that the individual
starts telling you a bit andthen says, I want to talk to you
about this later, and justgiving them that space to
confide and encouraging them toaccess all the support
available. So often, I know,social workers have many hats,
(31:48):
but you know, counselling isalways always there for for
clients, whether that be throughfull stop Australia, they have
free counselling, you know, one800 respects there, or, you
know, through Victim Servicescounsellors, or their GP can
refer them to a mental healthplan, encouraging the person to
get help, even initially, inthat context, as well as then
(32:11):
supporting them to get thatlegal advice they need and, and
being practical and saying,"there are options available. I
don't know, I might not know thelaw. But I've heard of a centre
available, Legal Aid's availableor you know, if you can afford
it, there is privatepractitioners around listening
and providing that wraparoundsupport."
And from our experience that oneof the good things that have
(32:33):
happened recently is that thesexual harassment timeline, at
least at the federal sphere hasbeen extended to 24 months. So
there's more time forindividuals for that
jurisdiction to make acomplaint. And we think that
really reflects sexualharassment because often it does
take time for an individual to,to just start processing what
has happened and to find someonethat they feel at the right
(32:54):
time, can hear their story tothen start thinking about what
they want going forward.
Steph (Legal Aid NSW) (32:59):
All like in Dinara's case might not have
felt that that was theoverriding issue that they came
to see you about, and it becomesapparent through a different
course of action.
Thank you so much for taking usthrough those issues. It sounds
like you've got a wealth ofknowledge and it sounds like
your service there is reallybased on a client focused,
(33:19):
wraparound approach. No issue isgonna go left unaddressed and I
really just want to thank youfor your time today and sharing
your knowledge and encourageanyone that has any other
questions to reach out throughus here at the CLE branch or
straight to Kingswood LegalService if you'd like to know
more. Again, thank you so muchfor joining us on the podcast.
Madeleine (KLC) (33:43):
Thank you very much.
Steph (Legal Aid NSW) (33:45):
Thank you so much for listening to the Law
for Community Workers podcastproduced by Legal Aid New South
Wales. I would like to again,thank our guests for joining us
today Madeleine Causbrook andI'd like to provide the number
to contact if you or someone youknow could benefit from help
from the Kingsford Legal Centre.The number is 9385 9566. Or you
(34:11):
can call Law Access for helpfrom legal aid on 1300 888 529.
You can always contact the CLEteam, the Community Legal
Education Team here at Legal Aidby email as well. That email is
cle@legalaid.nsw.gov.au And asalways, you can find links to
(34:34):
topics and the contact numbersthat I've just mentioned in the
show notes. We look forward totalking to you again soon. Bye
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