Discrimination cases - sexual harassment  					& racial discrimination

Cases

Discrimination cases - sexual harassment & racial discrimination

The two cases here illustrate the importance of gathering relevant evidence in substantiating a claim based on discrimination.

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The two cases here illustrate the importance of gathering relevant evidence in substantiating a claim based on discrimination.

Sexual harassment - employer liable for employee's deeds

The NSW Administrative Decisions Tribunal found that the employer of an employee who was guilty of sexual harassment was also guilty. The complainant presented detailed evidence on the substantive allegations and also evidence relevant to the inadequate response by the employer.

The three member Tribunal concluded:

'The Tribunal finds that in failing to prevent the harassment of Ms F, the first respondent has discriminated against Ms F on the ground of sex.

While Mr B did not receive the information about Mr A’s conduct towards Ms F as a formal complaint, as a supervisor, he should have at least put his supervisor … on notice. As there were no policies or grievance processes available to Ms F, and she had a difficulty in speaking to [the supervisor], it is understandable that no formal complaint was made.

Counsel ... further submitted that the failure of the Club to respond to Ms F’s situation in an appropriate manner merely compounded the discrimination. Mr V investigated the matters raised by Mr G at the board meeting in an inefficient and ineffective way. He spoke to Ms F, on one occasion, in the presence of Mr A, and on another, in the presence of his wife. … He did not compile a written record of his investigation, nor did he apparently even take notes.

The Tribunal is comfortably satisfied that the conduct of the Club amounts to discrimination on the grounds of sex against Ms F.'

Ferreira & anor v Wollongong Spanish Club Pty Ltd & anor [2005] NSWADT 57 - 18/
 
Alleged racial discrimination not substantiated

Although not an employment-related case, a decision of a Federal Magistrate illustrates the need to marshal relevant evidence to substantiate a claim of discrimination within the terms of the legislation.

The Magistrate dismissed the case, stating:

'In my view the chronology of events combined with the lack of a contemporaneous and specific complaint of unlawful discrimination in 1999 lead me to conclude that this claim is one which cannot succeed and to allow it to succeed would involve what has often been described as useless expense.

There is no attempt made to specifically address provisions of the Racial Discrimination Act despite the fact that during at least part of the Court process the Applicant was represented.

The allegations are vague and imprecise and as I have indicated were not made at or about the time that a very detailed complaint was lodged and dealt with by the Victoria Police.

I am very conscious of the requirements of the Court in considering summary dismissal to permit parties to pursue a claim even if it may appear that the claim from an evidentiary point of view would be extremely difficult.

This matter however goes beyond simply being a very difficult claim to one where the vague uncertain allegations of a general nature have been raised at a late stage and where there has been a failure to raise on the material any specific breach of any section of the RDA.
...
No-one would wish to see an applicant in person suffer as a result of inability to assemble and verify material as a lawyer would, but benevolent indulgence cannot be stretched to the point of accepting what has been put forward in this case.

Quite apart from questions of proper form and admissibility, even applicants in person cannot expect a court to wade through material of the present kind in the hope that there may be found ‘a grain or two of truth among the chaff’….'

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