Sexual harassment and discrimination not proven

Cases

Sexual harassment and discrimination not proven

To prove indirect discrimination the complainant needed to establish that she had been unreasonably required to comply with a requirement or employment condition with which a substantially higher proportion of persons of the opposite sex did comply. She failed to establish these elements.

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To prove indirect discrimination the complainant needed to establish that she had been unreasonably required to comply with a requirement or employment condition with which a substantially higher proportion of persons of the opposite sex did comply. She failed to establish these elements.

Facts

On 8 February 2005 the NSW Anti-Discrimination Board (ADB) received a complaint alleging discrimination in employment on the grounds of sexual harassment and sex discrimination in employment from Ms Chia-Wen (Priscilla) Hsu (the Applicant) against BHB Australia Pty Ltd t/as Far West Consulting Engineers (the First Respondent) and Mr Barry Barakat, its Managing Director (the Second Respondent).

She alleged that up until her last day of work on 31 January 2005 she was sexually harassed and discriminated against on the ground of her sex by Mr Barakat, because he made it clear to her that her progress and future at the company to a large extent depended on her personal attitude and response to his demands.

Ms Hsu alleged that during the trial week Mr Barakat required her to stay late at work and engage in long personal chats with him and to attend training after hours on Australia Day and on Saturday 29 January 2005 when he touched her inappropriately.

Ms Hsu alleged as a result of the harassment she resigned from her employment.

Conclusion

The applicant’s complaint was unable to be conciliated by the ADB and was referred to the Tribunal.

The NSW Administrative Decisions said that the onus was on Ms Hsu to establish that she was sexually harassed by her employer or potential employer within the meaning of the relevant legislation and that she was subjected to indirect discrimination on the ground of her sex.

The Tribunal was satisfied that the claim of indirect discrimination was misconceived on the evidence.

The complaint of sex discrimination was limited to the allegation of indirect discrimination. The Tribunal was not satisfied that there was any evidence to support the allegation of sex discrimination and found it to be unsubstantiated.

The Tribunal was not satisfied that Ms Hsu had discharged the onus on her to prove the allegations of sexual harassment. The mere fact that she remained late at work, that the managing director insisted on loyalty from his staff and insisted on training her did not prove that she was sexually harassed.

The complaints were dismissed.

Hsu v BHB Australia Pty Ltd trading as Far West Consulting & anor [2007] NSWADT 125 –ADT (Equal Opportunity Division) (Grotte, Judicial member, De Bikal and Antonios non judicial members – 14/6/07

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