CES - unlawful discrimination

Cases

CES - unlawful discrimination

The decision in Elliott v Nanda & Commonwealth of Australia, [2001] FCA 41811 April 2001, (reported in HR Link51/2001) highlighted the fact that by placing employees in workplaces with known instances of harassment, recruitment agencies may also be liable for the unlawful conduct of the employer.

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The decision in Elliott v Nanda & Commonwealth of Australia,  [2001] FCA 41811 April 2001, highlighted the fact that by placing employees in workplaces with known instances of harassment, recruitment agencies may also be liable for the unlawful conduct of the employer. The orders in this matter which involved the Commonwealth were finalised in Elliott v Nanda & Commonwealth of Australia, [2001] FCA 550(18 May 2001).

In April 2001, Moore J of the Federal Court of Australia found that a receptionist at a medical centre had been subjected by a doctor and the Commonwealth to conduct proscribed by the Sex Discrimination Act 1984. The extent of the Commonwealth's liability related to the fact that the former employee was referred to the doctor for work by the CES, despite several complaints that the doctor's surgery constituted a sexually hostile working environment. In this regard it was held that the applicant was entitled to compensation of $15,100 for loss and damage flowing from that conduct. It was also determined that the applicant was entitled to a further $5,000 by way of aggravated damages from the doctor for his conduct following the making of the complaint to the Human Rights and Equal Opportunity Commission (HREOC). Orders were not made giving effect to these conclusions, rather, his Honour directed the parties to file submissions on the form the orders should take and the question of costs.

It was the submission of the Commonwealth that the doctor ought to pay all the compensation awarded by the Court. The reasoning of the Commonwealth was that it was the doctor who had sexually harassed the former receptionist and were the Commonwealth to pay any part of the compensation, then it would alleviate the burden of the actual perpetrator.

An unusual matter for consideration

His Honour acknowledged the unusual nature of this matter, in that both the respondent doctor and the Commonwealth unlawfully discriminated against the former employee. Whilst the Court did not propose to compensate the applicant twice, it was determined that the applicant ought to be compensated fully by both the doctor and the Commonwealth, reflecting in the order the fact that the immediate cause of the discrimination was the doctor's conduct.

To this end, Moore J ordered that both the doctor and the Commonwealth be jointly ordered to pay the applicant $15,100 compensation. It was determined that the doctor ought to bear the greater portion of the burden. In the event that the doctor satisfied the liability to pay the $15,100 then the Commonwealth was to contribute $5,000. Alternatively, if the Commonwealth satisfied the liability, then the doctor was to contribute $10,100. On top of this amount, the doctor was liable to pay a further $5,000 in aggravated damages.

In this regard, the Court made it clear that the orders were not being made to punish either the doctor or the Commonwealth but rather were being made to compensate the former employee. Had the Commonwealth not placed the employee in a workplace suspected of harassment then the unlawful conduct experienced by the employee would never have taken place.

 
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