​Inflammatory response sinks lawyer's sex discrimination claim

Cases

​Inflammatory response sinks lawyer's sex discrimination claim

A lawyer who was accused of bullying junior staff has failed to convince a court that the investigative process amounted to sex discrimination.

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A lawyer’s attempt to prevent herself from being expelled from her firm because of alleged bullying of other staff has failed because her own response to the allegations was so inflammatory it amounted to bullying itself.

She accused the law firm of sex discrimination, but the Federal Court rejected her application for an injunction to prevent the firm considering her expulsion before her claim of discrimination and bullying was determined. It cancelled an interim injunction to that effect that had been in force for three months.

Facts of case


The woman was an equity partner in the law firm. Two junior lawyers complained that she had bullied them and the firm conducted an investigation into the matter, using an external barrister. The woman claimed she was not told there would be an investigation, and claimed that a male partner would have been notified in advance of one. 

After it received the investigation report, the firm advised her there was a possibility a resolution to expel her from the firm would be put to a meeting of the other equity partners. The managing partner told her that pending that she would be removed from her roles as team leader and deputy managing partner and directed to work from home to limit her office exposure.

The woman’s solicitor responded to the above with accusations of bullying and victimisation intended to cause injury and engineer her departure from the firm. He also threatened the employees who complained about her and their witnesses with defamation proceedings. 

The firm responded to the above by alleging that it amounted to further bullying conduct and an attempt to victimise the complainants and witnesses. It said that if the threats against the witnesses were not withdrawn within 24 hours, the woman would be excluded from the workplace until the matter was finalised. At this point, it also raised the possibility of the meeting to consider whether to expel her from the firm. When she undertook to withdraw the defamation threats, the firm restored her access to the workplace.

The woman then applied to the Australian Human Rights Commission for an injunction to prevent the partners considering her expulsion until her claims of sex discrimination had been determined. She had claimed she was treated less favourably than a male partner would have been if similar allegations against him had been made, and cited four male comparators. She further claimed that she was being bullied and victimised for having made complaints of sex discrimination against her.

Decision


The Federal Court dismissed an interim injunction granted three months earlier, and refused to grant a new injunction, finding that the circumstances of the male comparators she cited had been different.

It found that the woman’s “inflammatory” response to being notified of the investigation also made her case different. The court noted “extravagant language” and “a remarkable lack of moderation and self-restraint”. This precluded a need to find whether her circumstances were similar. 

The court upheld the firm’s right to expel a partner if circumstances justified it. It noted that the woman would receive the opportunity to present her case to the equity partners’ meeting and also noted that 45% of the partners the firm had appointed in the past three years were women.

The woman had not presented a sufficiently arguable case that it would be discriminatory or otherwise unlawful to convene a meeting to consider her position, nor had she demonstrated that the reason for her alleged less favourable treatment was that she was a woman.

The bottom line: A court can only grant an interim order or injunction to preserve the status quo that existed immediately before a dispute arose. It cannot be granted to support an applicant’s case regarding matters unrelated to the applicant’s complaint. 

In this case, the employee alleged sex discrimination, but this was not the reason her employer took action against her – her conduct was the reason. In addition, her inflammatory responses and issuing of threats undermined her case.

Read the judgment


Wilson v Britten-Jones [2019] FCA 747, 24 May 2019 
 
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