Parties' Perceptions of Apologies in Resolving Equal Opportunity Complaints

Abstract

Apologies are known to play an important role in the resolution of discrimination and harassment complaints brought under equal opportunity legislation. Sometimes parties agree on an apology as a term on the basis of which a complaint is settled. Occasionally, where a complaint is not settled, a respondent will be ordered to apologize. The ability to order an apology is a distinctive feature of equal opportunity law in Australia. The aim of the researchers was to gather information on the role of apologies in the equal opportunity jurisdiction in Western Australia. Twenty-four complainants and respondents took part in semi-structured interviews. Qualitative analysis of the interview transcripts revealed that participants placed a positive value on apologies in the settlement process. They believed apologies serve a number of functions and have the potential to play a valuable role in the resolution of discrimination and harassment complaints. It appears that respondents may be more inclined to offer apologies if they have their legal position clarified.

Keywords:

• apology
• boards
• discrimination
• equal opportunity
• harassment
• tribunals

Acknowledgements

The authors acknowledge with thanks the support and cooperation provided by the Equal Opportunity Commission of Western Australia and the State Administrative Tribunal of Western Australia and, in particular, the Commissioner for Equal Opportunity Ms Yvonne Henderson, the former President of SAT Justice Michael Barker, the current President of SAT Justice John Chaney and former Senior Member of SAT Ms Jill Toohey. The authors also thank Dr Maria Allan and Dr Deirdre Drake who were involved in the planning of the research project and Ms Nicole Macdonald and Mr Daniel White for their research assistance.

Notes

1. A comprehensive list of Federal and State legislation in force is set out in CCH, Australian and NZ Equal Opportunity Commentary, paras 2–720 and a table summarizing the legislation [2–780].

2. There are statutory limits on the amount of compensation that can be awarded; for example, in WA the maximum is $40,000, Equal Opportunity Act 1984 (WA), s 127(b)(i).

3. For example, s 127 Equal Opportunity Act 1984 (WA) provides: “except in respect of a representative complaint or a matter referred to the Tribunal for inquiry as a complaint pursuant to section 107(1), order the respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant.” Similar provisions are contained in anti-discrimination legislation in other Australian States and Territories.

4. For example, D Shuman, ‘The Role of Apology in Tort Law’ (2000) 83 Judicature 180; J Brown, ‘The Role of Apology in Negotiation’ (2003–2004) 87 Marquette Law Review 665; B Neckers, ‘The Art of the Apology’ (2002) 81 Michigan Bar Journal 10.

5. See, R Clifford, A Review of Outcomes of Complaints under the Sex Discrimination Act 1984 (Australian Human Rights and Equal Opportunities Commission) < www.hreoc.gov.au/complaints_information/ publications/sda_outcomes.html>. R Hunter and A Leonard, ‘The Outcomes of Conciliation in Sex Discrimination Cases’ (Working Paper No. 8, Centre for Employment and Labour Relations Law, August 1995).

6. C Petersen, J Fong, and G Rush, Investigation and Conciliation of Discrimination Complaints in Hong Kong: Statistical Analysis of 415 Complaint Files and Commentary, Research Report, July 2003, Centre for Comparative and Public Law, Faculty of Law, The University of Hong Kong.

7. See, for example, De Simone v Bevacqua (1994) 7 VAR 246; (1994) EOC 92–630 ; Ma Bik Yung v Ko Chuen [2002] 2 HKLRD 1; Falun Dafa Association of Victoria Inc v Melbourne City Council [2004] VCAT 625 (unreported, Bowman J, 7 April 2004).

8. De Simone v Bevacqua (n 7) (against corporate employer); Falun Dafa Association of Victoria Inc v Melbourne City Council (n 7) (against a government entity); Western Aboriginal Legal Service Limited v Jones & Anor [2000] NSWADT 102 (unreported, Rees, Silva and Luger, 31 July 2000) (against a private individual). For commentary on remedies awarded under the legislation including apology orders see Australian Human Rights Commission, Federal Discrimination Law (2009) < http://www.hreoc.gov.au/legal/FDL>, Ch 7, ‘Damages and Remedies’, accessed 7 December 2009.

9. The power to order an apology for unlawful discrimination is not unique to Australia however. In Hong Kong, see the Disability Discrimination Ordinance s 72(4)(b). In the Republic of South Africa, s 21(2) of the Promotion of Equality and Prevention of Unfair Discrimination Act 2000 confers power on the Equality Court to make a wide range of remedies orders, including “an order that an unconditional apology be made”.

10. See De Simone v Bevacqua (n 7); Falun Dafa Association of Victoria Inc v Melbourne City Council (n 7). For discussion see R Carroll, ‘Beyond Compensation: Apology as a Private Law Remedy’ in J Berryman and R Bigwood (eds), The Law of Remedies: New Direction in the Common Law (Irwin Law, Toronto forthcoming 2010).

11. Contrast, for example, Chew v Director-General of the Department of Education and Training (2006) 44 SR (WA) 174 with Evans v National Crime Authority (2003) EOC 93–298.

12. Contrast, for example, Grulke v K C Canvas Pty Ltd ACN 057 228 850 with Falun Dafa Association of Victoria Inc v Melbourne City Council (n 7).

13. For example, Wagga Wagga Aboriginal Action Group v Eldridge, (1995) EOC 92–701.

14. For example, A Allan, ‘Apology in Civil Law: A Psycholegal Perspective’ (2007) 14 Psychiatry, Psychology and Law 5.

15. D Slocum, A Allan, A Allan and MM Allan, ‘An Emerging Theory of Apology’, Australian Journal of Psychology, (forthcoming).

16. Ibid.

17. A Allan, ‘Functional Apologies in Law’ (2008) 15 Psychiatry, Psychology and Law, 369.

18. P Ashworth ‘Presuppose Nothing!: The Suspension of Assumptions in Phenomenological Psychological Methodology’ (1996) 27 Journal of Phenomenological Psychology 1.

19. DE Polkinghorne, ‘An Agenda for Second Generation of Qualitative Studies’ (2006) 1 International Journal of Qualitative Studies on Health and Well-being 68, 72.

20. A Strauss and J Corbin, Basics of Qualitative Research: Grounded Theory Procedures and Techniques (Sage Publications, Thousand Oaks, 1998).

21. K Charmaz, Constructing Grounded Theory: A Practical Guide Through Qualitative Analysis (Sage Publications, London, 2006).

22. Strauss and Corbin (n 20).

23. QSR International, What is Qualitative Research (2007) < http://www.qsrinternational.com/what-is-qualitative-research.aspx> accessed 2 January 2010.

24. H Bromley and others, Glossary of Qualitative Research Terms: The Qualitative Research and Health Working Group (Liverpool School of Tropical Medicine, Liverpool 2003).

25. Slocum et al. (n 15).

26. Case law shows that in awarding remedies under equal opportunity legislation Australian courts take into account not only the practical benefit of the order to the complainant, but also the benefits of the order to the community. These benefits include the symbolic value of judgements that denounce discriminatory and racially offensive conduct, and the educative and deterrent value of judgements in which courts enunciate legislative principles. See for example, Jones v Toben (2002) 71 ALD 629, [112].

27. Slocum et al. (n 15).

28. Ibid.

29. Ibid.

30. Ibid.

31. See T Ayling, ‘Apology and Liability for Personal Injury’ (May 2006) Brief 11, and A Allan, Implementation of the National Open Disclosure Standard in Western Australia: A Literature Review of the Legal Situation http://www.psychology.ecu.edu.au/staff/documents/allanA/86_Allan_OD_Literature_Review.pdf accessed 12 November 2008.

32. Slocum et al. (n 15).