I was bullied and harassed, says lawyer

Analysis

I was bullied and harassed, says lawyer

A lawyer claims his employer discriminated against him on the ground of his homosexuality and disability.

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A case in progress has provided some insight into the circumstances in which tribunals will seek discovery of documents that may provide relevant evidence. The case involved whether a disputed medical report was relevant to a discrimination claim by a lawyer against his employer.

Facts of case


The lawyer claimed that the employer discriminated against him on the ground of his homosexuality and disability. He claimed to have an anxiety condition, but alleged that the employer treated is as an alcohol/drug addiction.

The alleged instances of discrimination were: receiving a lower pay rise than co-workers, and bullying and harassment based on his sexual orientation and disability. He claimed that co-workers asked him if he was a prostitute, questioned his sexual orientation, and alleged that he had a drinking problem and used illicit drugs. He also claimed that he was put under surveillance at work and that co-workers searched his office and personal belongings while he was outside during a fire drill.

As a result of the above, he claimed to have suffered depression and anxiety, financial and reputational loss, and claimed that the law firm breached his employment contract.

The law firm denied all the above allegations, and claimed that if the conduct had occurred, it had taken all reasonable steps to prevent it. It claimed that it dismissed the lawyer because he had been absent from work for more than three months and not provided a medical certificate to cover the absence.

The case is listed for hearing on 30 October 2019. However, it was also the subject of interlocutory injunctions before the Federal Court, as set out below.

Relevance of documents from another case


The lawyer had earlier applied to the NSW Supreme Court for judicial review of a Health Care Complaints Commission decision that rejected his complaint about a psychiatrist. The law firm sought discovery of information about that case, but the lawyer claimed that the information was privileged.

The lawyer asked the psychiatrist to issue a report that supported his claim he had the psychiatric condition of anxiety, which amounted to a disability. However, there was evidence that the report may have contained material that was unhelpful to the lawyer’s case. His application for judicial review alleged that the report contradicted his claim and undermined his credibility.

The law firm accessed the documents via a non-party access request, but the lawyer claimed that this was done in contempt of court. Firstly because no decision had yet resulted and secondly because the law firm had both made an implied undertaking to restrict use of the documents and relied on “without prejudice” communications to obtain them.

Decision


The Federal Court found that the psychiatrist’s report, the lawyer’s complaint about it (which was 200 pages long) and other material from the other case could be relevant to the current case, so it would order discovery of those documents.

It would also order the following from the lawyer, because it would be relevant to his claim of discrimination by the employer:
  • His medical and pharmaceutical records of non-physical conditions for the past five years
  • Tax returns, employment contracts and other employment-related documents for the past three years.
It would also order the law firm to provide discovery of information about employment policies and training, and a text message that might show that the fire drill had occurred. This information was less than what the employee had requested – he had asked for everything in the employer’s possession that in any way referred to him to be discovered.

Read the judgment


Hastwell v Kott Gunning (No 3) [2019] FCA 1641, 8 October 2019
 
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