Ashley v Lowes Manhattan Pty Ltd

CITATION:

Ashley v Lowes Manhattan Pty Ltd [2010] NSWADT 242

DIVISION:

Equal Opportunity Division

PARTIES:

APPLICANT
Lynette Ashley

RESPONDENT
Lowes Manhattan Pty Ltd

FILE NUMBER:

091074

HEARING DATES:

22, 23, 24 March 2010 and 26 May 2010

SUBMISSIONS CLOSED:

26 May 2010

 
DATE OF DECISION: 

12 October 2010

BEFORE:

Huntsman C - Judicial Member; Weule B - Non-Judicial Member; Schneeweiss J - Non-Judicial Member

CATCHWORDS:

Victimisation - causation - whether manager was victimised by employer for reporting sexual harassment complaints made by junior staff - whether detriment suffered

LEGISLATION CITED:

Section 50 Anti-Discrimination Act 1977

CASES CITED:

Borg v Commissioner, Department of Corrective Services & Anor [2002] NSWADT 42
Hunt v Rail Corporation of New South Wales [2007] NSW ADT 152 at [182]
Nicholls and Nicholls v Director General, Department of Education And Training (No 2) [2009] ADTAP 20
Shaikh v Commissioner, NSW Fire Brigades (1996) EOC 92-808
Dutt v Central Coast Area Health Service [2002] NSWADT 133
Chi v Technical and Further Education Commission (No 3) [2009] NSWADT 271
St Josephs Hospital Ltd v Correy (No 2) [2009] NSWADTAP 58
Sivananthan v Commissioner of Police, NSW Police Service [2001] NSWADT 44

REPRESENTATION:

APPLICANT
Mr Perry, instructed by Moya de Luca-Leonard, lawyers

RESPONDENT
Mr Tindley, Retail Traders Association, Qld

ORDERS:

The application is dismissed.

REASONS FOR DECISION

Introduction

1 On 21 November 2008 Ms Ashley, the Applicant, lodged a complaint against Lowes-Manhattan Propriety Limited (“Lowes”), the Respondent, with the Anti-DiscriminationBoard, alleging that she was victimised in employment. The Applicant had been employed by the Respondent as a manager of one of the Respondent’s retail stores. On 5 June 2009 Ms Ashley requested the matter be referred to the Equal Opportunity Division of the Administrative Decisions Tribunal. In her complaint to the Anti-Discrimination Board Ms Ashley alleged that after she advised management of Lowes that casual employees had raised allegations with her that they had been sexually harassed by an assistant store manager, she was told she would be transferred to another store. The Applicant had for many years been the store manager of the Cronulla store. At a meeting on 26 August 2008 with senior management of Lowes the Applicant was advised she was to be relocated to the Menai store.

The Applicant’s case

2 The Applicant gave evidence in support of her case in oral and written form. Ms Ashley’s written evidence consisted of an affidavit of 28 January 2008 (an annexure to the affidavit included a letter by Ms Ashley to the Respondent’s managing director, Mr Mueller, dated 29 August where she detailed her experience of relevant events); and a lengthy affidavit of 17 March 2010 where she provides a response to the written evidence of the Respondent’s witnesses. A number of documents were annexed to the affidavit of 29 March 2010 . Those documents included copies of correspondence, medical reports, documents relating to a worker's compensation claim and other material relating to Ms Ashley's employment with the Respondent. She also provided evidence from witnesses including Dr Lana…