Subsidiary companies sufficiently linked for harassment claim

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Subsidiary companies sufficiently linked for harassment claim

Despite being employed by ‘legally different’ companies, the alleged sexual harassment of one employee to another while attending a joint social outing was still governed by discrimination law applying to ‘a workplace’, an ACT Tribunal has ruled.

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Despite being employed by ‘legally different’ companies, the alleged sexual harassment of one employee to another while attending a joint social outing was still governed by discrimination law applying to ‘a workplace’, an ACT Tribunal has ruled.

In February 2006, an employee of United Group Process Solutions Pty Ltd was travelling from Bungendore to the ACT following attendance at a race meeting by members of the work social club.

In a complaint lodged with the Human Rights and Discrimination Commissioner, the worker alleged that she was sexually harassed by an employee of United Group Services Pty Ltd. She submitted the comments have caused her injury requiring, among other things, psychological counselling.

Both employers were subsidiary companies of United Group Limited (UGL) and both operate out of the same premises in Northbourne Avenue, Canberra City. The social club comprised members from all the corporate entities of UGL.

No commonality

UGL disputed the claim on two grounds - that the alleged perpetrator was not employed by the company (he was employed by a subsidiary) and, as such, s59 (employment) of the Discrimination Act 1991 (ACT) did not apply; and that because the conduct took place in a bus, it was not considered a ‘workplace’ under the Act.

In response, the worker submitted that so long as there was a common ‘workplace’, it did not matter whether the ‘workplace participants’ had a common employer or not.

Workforce participants

Deputy president of the ACT Discrimination Tribunal, Grant Lalor, rejected UGL’s argument that there was no commonality of employment, so there could be no prohibited conduct between parties.

He noted that that in 1995 subsections were added to s59 that effectively introduced a new concept of harassment between ‘workplace participants’, following a Parliamentary worker’s harassment claim being rejected when it was found the MP had not been her employer.

‘… 1995 amendments have not only removed any doubt about the relationship between the Assembly member and staff member for the purposes of the Discrimination Act, but introduced a new concept of harassment between workplace participants, which removes some of the other problems arising under the pre-1995 amendment provisions,’ the Administrative Appeals Tribunal said in June 2006.

Lalor ruled the claimed conduct fell within the scope of s59, but declined to rule on whether the bus was a workplace under the Act until further submissions were made.

Tyrell v United Group Pty Ltd and Kelvin Aumont [2007] ACTDT 9 (6 December 2007)


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