Discrimination - cases wrap 18/10/05

Cases

Discrimination - cases wrap 18/10/05

The three cases here note: what's reasonable in assessing claims of sexual harassment; exclusion from all male party was gender discrimination; and employee victimised for making discrimination complaint.

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The three cases here note: what's reasonable in assessing claims of sexual harassment; exclusion from all male party was gender discrimination; and employee victimised for making discrimination complaint.

What's reasonable in assessing claims of sexual harassment

The NSW Supreme Court has provided some guidance for assessing whether conduct amounts to sexual harassment.

Justice Hall concluded:

'In matters involving sexual harassment of the kind here in question, matters relevant to the inquiry as to whether termination was justified, appropriate or reasonable included:

  1. the content of the plaintiff’s offending statements;

  2. the persistent nature of his conduct on the day in question;

  3. the relative vulnerability of the complainant having regard to the employment position occupied by the plaintiff;

  4. the absence of mitigating circumstances attending the plaintiff’s conduct as found by the Board;

  5. the responsibility of the employer to provide a work environment free from sexual harassment in accordance with its Code of Workplace Standards.'

Background

This case involved allegations that a former railway employee made suggestive comments, requests for sex, and offers of sex and asked personal questions of a customer service attendant.

Conclusion

The court rejected the submission of the plaintiff that the Board at first instance had adopted a mechanical approach to fact-finding but rather considered that its members demonstrated an appreciation that cogent proof was required before a decision could be reached and proceeded accordingly.

The court did not consider that the finding by the Board adverse to the plaintiff was so unreasonable that it established the 'irrationality' ground of review asserted.

The application was dismissed.

Duhbihur v Transport Appeal Board & Anor [2005] NSWSC 811 – NSWSC (Hall J) – 12/8/05.
 

Exclusion from all male party was gender discrimination

Although failure to invite the only female staff member to a Christmas party where topless waitresses were serving drinks was not sexual harassment, it was gender discrimination.

The NSW Administrative Appeals Tribunal concluded:

'Differential treatment? ...We are satisfied that [the manager] made male employees feel welcome to attend the party, but he did not make Ms .. feel welcome to attend.

In Commonwealth v Human Rights and Equal Opportunity Commission & Dopking & Anor (1993) 119 ALR 133 per Wilcox J at [19] said “As Mahoney J pointed out in Boehringer Ingelheim Pty Ltd v Reddrop (1984) 2 NSWLR at 20, the concept underlying this element is detriment; the aggrieved person being treated in a manner less favourable than that accorded someone of a different ... status.”

The detriment that Ms C felt was that she was being excluded from something that other employees were made to feel welcome to attend. …

There is nothing apart from Ms Carter’s gender that would explain that differential treatment. …'

The company was ordered to pay $500 in damages.

Carter v Linuki Pty Ltd trading as Aussie Hire & Fitzgerald (EOD) [2005] NSWADTAP 40 (22 August 2005)
 
Previous discrimination complaint resulted in victimisation

The evidence pointed to the victimisation of the applicant on the basis of previously having brought a complaint against the employer.

The applicant was not offered work after he had previously complained to HREOC and had threatened to lodge a further complaint.

Federal Magistrate Raphael found the Disability Discrimination Act had been breached.

The applicant had sustained an injury while working for the company in 2002 and later made a disability discrimination complaint to HREOC.

Federal Magistrate Raphael said that a job could have been found and was not provided.

The company was ordered to pay $5,000 in general damages for victimisation plus compensatory damages.

Drury v Andreco Hurll Refractory Services Pty Ltd (No.4) [2005] FMCA 1226 (30 August 2005)

Related

There is a dedicated EEO and Privacy page on WorkplaceInfo.

 

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