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Complaint Procedures  

THE RIGHT TO COMPLAIN
THE COMPLAINT
PROCEDURE FOR PROCESSING COMPLAINTS
BOARD OF INQUIRY (the 'Board')
PROSECUTION
THE HUMAN RIGHTS COMMISSION
A GUIDE FOR RESPONDENTS
A FORMAL COMPLAINT
WHO MAY COMPLAIN?
WHAT HAPPENS NEXT?
HOW IS THE INVESTIGAION CONDUCTED?
THE COMPLETED INVESTIGATION
PROSECUTION 


THE RIGHT TO COMPLAIN

When a person (the 'Complainant') believes that he or she has been discriminated against or harassed in a way that is prohibited by the Human Rights Act 1981 (the 'Act') he or she should contact the Human Rights Commission (the 'Commission').

Reprisals or actions against anyone who complains to the Commission, or who assists with a complaint, are forbidden. For example, if an employer threatens to fire an employee for giving evidence about an alleged discrimination, the employer is breaking the law.

Any complaint filed with the Commission must be filed within six months of the alleged contravention.

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THE COMPLAINT

If grounds of the complaint appear to be genuine, then a Human Rights Investigations Officer will discuss the problem and will eventually accept a formal signed complaint.

The Commission may refuse to address the complaint if:

1. The complaint is not within its jurisdiction;
2. The subject matter of the complaint is trivial, frivolous, vexatious or made in bad faith;
3. The facts upon which the complaint is based occurred more than six months before the complaint was filed;
4. Another government department is investigating the same complaint; or
5. There is a more appropriate agency to hear the complaint.

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PROCEDURE FOR PROCESSING COMPLAINTS

1. A signed copy of the complaint is forwarded to the person against whom the complaint is made (the 'Respondent').
2. A detailed investigation is then carried out by the Commission.
3. A fact-finding conference may be held, and if held, the conference is chaired by a Commission officer.
4. If appropriate, conciliation and settlement of the complaint then occurs.
5. The Commission does not take sides. Evidence submitted by all parties is analyzed and a decision is made.
The Commission then attempts to arrive at a reasonable and just settlement of the complaint.
6. In carrying out the investigation, the Commission's officer may:

Enter business premises
Request the presentation of relevant documents
Speak to witnesses who may have information relevant to the complaint. Obstruction of a Commission investigation is unlawful.

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BOARD OF INQUIRY (the 'Board')

If the Commission substantiates the allegations of sexual harassment, an officer of the Commission will attempt to conciliate and settle the matter to the satisfaction of both parties. If the complaint is not conciliated within 9 months, the Commission must refer it to the Minister of Community, Culture and Sports. The Minister may, in his discretion, appoint a public Board of Inquiry to investigate the matter.

The Board is a decision-making body which operates like a court. The persons appointed are not members of the Commission. The Board hears testimony given under oath and makes a finding based on the evidence as to whether or not the Act has been contravened. If the Board finds that there has not been a contravention, the case is dismissed. If the Board finds the Act has been contravened, it may order the Respondent to do whatever is necessary to fully comply with the Act. In some cases, the Board may order the Respondent to rectify any injury caused to the Complainant and to make financial restitution.

Any party who disagrees with the decision of the Board may appeal to the Supreme Court.

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PROSECUTION

Depending on the gravity of the alleged contravention, a Respondent may be prosecuted in a court of law. The Department of Public Prosecutions must consent to this prosecution.

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THE HUMAN RIGHTS COMMISSION

The Human Rights Commissioners, distinct from the officers of the Commission, are members of the public. They are appointed by the Governor, on the advice of the Premier, after the Leader of the Opposition has been consulted. Commissioners are responsible to the Minister of Community Affairs and Sports for the administration and enforcement of the Act. The staff of the Commission are public officers. The expenses of the Commission are met out of the funds appropriated annually by the Legislature.

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A GUIDE FOR RESPONDENTS

This guide has been prepared by the Human Rights Commission (the "Commission") to assist employers, property owners, proprietors and their agents to understand their rights and responsibilities under the Human Rights Act 1981 (the "Act").

The Commission is the agency responsible for administering and enforcing the Act. All persons lawfully residing in Bermuda are entitled to equality, dignity and freedom from acts of discrimination.

The Act protects individuals from discrimination which may occur in a number of areas, including employment, housing and public service provisions. Complaints may be filed on the following grounds:-

- Race
- Ethnic, national origins
- Place of origin
- Colour
- Religion/ beliefs
- Sex
- Sexual orientation
- Disability
- Marital status
- Political opinions
- Family status (has or is likely to have a child whether born in lawful wedlock or not)
- Age (only in the area of goods, facilities and services)
- Criminal record, except where there are valid reasons relevant to the nature of the particular offence for which he is convicted that would justify the difference in treatment.

Complaints may be filed in the following areas:

- Employment
- Housing
- Goods, facilities and services
- Contracts
- Public notices
- Membership in associations and trade unions

The Act requires that persons receive equal opportunity based on their individual merits without regard to group stereotypes. For example, hiring decisions based on individual merit without regard to sex, race, place of origin or family status ensures employing the best qualified candidate for the job.

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A FORMAL COMPLAINT

A formal complaint is a signed document alleging discrimination in one of the above-mentioned areas and grounds. The person making the complaint is the "Complainant". The person against whom the complaint is made is the "Respondent".

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WHO MAY COMPLAIN?

Any person may complain, but the grounds of the complaint must appear to be genuine before the Commission will accept a formal complaint. To be valid, a complaint must be filed within six months of the alleged discrimination.

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WHAT HAPPENS NEXT?

Once a formal complaint has been filed, an Investigations Officer of the Commission must attempt to conciliate, if unsuccessful, then followed by :

- Notify the Respondent in writing of the complaint.
- Advise the Respondent of the Commission's intention to investigate the complaint.
- Offer the Respondent an opportunity of making oral or written representations or both.
- Advise the Respondent of his/her legal obligations under the Act.
- Investigate and endeavour to settle the causes of the complaint.

A copy of the formal complaint will be delivered to the Respondent and the Investigation will commence as soon as it is reasonably possible.

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HOW IS THE INVESTIGAION CONDUCTED?

The Commission is an impartial agency. The investigation will be objective, confidential and fair. Under the Act, the Commission may request to inspect payrolls, records, documents, written appraisals and any other relevant papers. Persons other than the Respondent may also be called upon to testify.

It is illegal to penalize a person for complaining, testifying or participating in any other way in a proceeding under the Act. For example, a person must not be threatened, prejudiced, intimidated or coerced in any way.

Obstruction of a Commission Investigation is unlawful.

Since the investigation endeavors to ascertain all relevant facts, including those which may disprove the allegation, the cooperation of all parties is essential.

If, in the opinion of the Commission, a complaint is without merit, the complaint may be dismissed at any stage of the proceedings.

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THE COMPLETED INVESTIGATION

When the complaint is supported by the evidence, the Commission will assist the parties to agree on a reasonable and just settlement. This process is called conciliation and settlement. If the complaint is not supported by the evidence, the case is dismissed. Both parties to the complaint are advised of the investigation findings and the Commission's Preliminary Findings.

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PROSECUTION

Depending on the gravity of the alleged contravention, a Respondent may be prosecuted in a court of law. The Director of Public Prosecutions must consent to this prosecution.

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THE HUMAN RIGHTS ACT 1981 PROVIDES THAT EVERY PERSON HAS A RIGHT TO FREEDOM FROM DISCRIMINATION

in the following areas:

- Services, goods and facilities
- The occupancy of accommodation
- Contracts
- Public notices
- Employment
- Membership in associations and trade unions
- Public notices

on the grounds of:

- Race
- Ethnic, national origins
- Place of origin
- Colour religion, belief
- Sex
- Sexual orientation
- Disability
- Marital status
- Political opinions
- Family status (has or is likely to have a child whether born in lawful wedlock or not)
- Age (only in the area of goods, facilities and services)
- Criminal record, except where there are valid reasons relevant to the nature of the particular offence for which he is convicted that would justify the difference in treatment. (Amended 2000)

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