Asnicar v Mondo Consulting Pty Ltd - [2004] NSWADT 143

CITATION: Asnicar v Mondo Consulting Pty Ltd [2004] NSWADT 143

DIVISION: Equal Opportunity Division

PARTIES: APPLICANT
Lisa Asnicar
RESPONDENT
Mondo Consulting Pty Ltd

FILE NUMBER: 031153

HEARING DATES: 14/04/2004-15/04/2004, 10/05/2004

SUBMISSIONS CLOSED: 05/10/2004

DATE OF DECISION:
07/14/2004

BEFORE: Layton R - Judicial Member; Clayton S - Non Judicial Member; Gill M - Non Judicial Member

APPLICATION: Sex Discrimination - In work - Sexual Harassment - In workplace

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Anti-Discrimination Act 1977
Sex Discrimination Act 1984 (Cth)

CASES CITED: Bevacqua v Klinkert & Ors (No 1) (1993) EOC 92-515
Caton v Richmond Club Limited [2003] NSWADT 202
Colosimo and Banana Traders of Australia Pty Ltd t/as P W Chew & Co [2003] NSWIRComm 72, Allison v Bega Valley Council, (1995) 63 IR Johanson v Blackledge [2001] FMC 6
D -v- Berkeley Challange Pty Ltd [2001] NSWADT 92
Evans v Lee & Anor (1996) EOC 92-822
Hardy v Kelly (1991) EOC 91-369
Hudson -v- Strathfield Golf Club [2000] NSWADT 88
Judge v Cripps & Cripps Pty Ltd (1999) NSWADT 11
M v R Pty Ltd (1988) EOC 92 – 229
Park v Minister for Fair Trading & Ors [2000] NSWCA
Re: Susan Hall; Dianne Susan Oliver and Karyn Reid AND A&A Sheiban Pty Ltd; Dr Atallah Sheiban AND Human Rights and Equal Opportunity Commission No NG1185 of 1988 Fed No 65 Sex Discrimination, 20 FCR 217
Roden v Thomas (1966) EOC 92-784.
Samuels Real Estate v Lamb & Anor (1998) EOC 92-923
Shellharbour Golf Club v Wheeler [1999] NSW SC 224
Tenuyl v Delaney & Anor (1996) EOC 92-177. Aldridge v Booth (1988) EOC 92-222.

REPRESENTATION: APPLICANT
L Clegg, barrister
RESPONDENT
L Macinnis, barrister

ORDERS: 1.The Tribunal orders that Mondo Consulting Pty Ltd pay Ms Asnicar the sum of four thousand nine hundred and eighty eight dollars ($4,988.00) for economic loss and for hurt, humiliation and loss of faith in the employee/employer relationship; 2.That each party pay their own costs.

The application

1 This decision concerns complaints made by Lisa Asnicar, the Applicant, of sexual harassment, sex discrimination and constructive dismissal under Sections 22A, 22B, 24 and 25 of the Anti-Discrimination Act 1977 of NSW in respect of Mondo Consulting Pty Ltd (Mondo Consulting), the Respondent. The Respondent denied these allegations.

Background

2 On 15 August 2002 Ms Asnicar lodged a complaint with the President of the Anti-Discrimination Board (respectively “the President” and “the Board”) alleging that she suffered sexual harassment and discrimination while she was an employee of Mondo Consulting throughout the period 18 February 2002 to 28 March 2002, and that as a result of this, she resigned on or about 28 March 2002.

3 The Applicant was represented by Mr Dean Rutherford of Shanahan Tudhope solicitors, and at the hearing, she was represented by Ms Louise Clegg, counsel. The Respondent was initially represented by Ms Cara Seymour, Dibbs Barker Gosling, then she represented herself, and at the hearing, she was represented by Mr LAH Macinnis, counsel.

4…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] NSWADT 143
Decision Date: 07/14/2004

CaseChat Overview and Summary

Asnicar v Mondo Consulting Pty Ltd involved a claim for compensation for economic loss, hurt, humiliation and loss of faith in the employee/employer relationship. The matter was heard by the Fair Work Commission. The primary issue before the Commission was whether Ms Asnicar had suffered economic loss and hurt, humiliation and loss of faith in the employee/employer relationship as a result of the actions of Mondo Consulting Pty Ltd. The Commission found that Ms Asnicar had suffered economic loss and hurt, humiliation and loss of faith in the employee/employer relationship as a result of Mondo Consulting Pty Ltd's actions. The Commission found that Mondo Consulting Pty Ltd had breached Ms Asnicar's employment contract by failing to provide her with a safe working environment and by failing to take reasonable steps to prevent her from being bullied by her colleagues. The Commission ordered Mondo Consulting Pty Ltd to pay Ms Asnicar the sum of four thousand nine hundred and eighty eight dollars ($4,988.00) for economic loss and for hurt, humiliation and loss of loss of faith in the employee/employer relationship. The Commission also ordered that each party pay their own costs.

Orders

Orders of the court

1.The Tribunal orders that Mondo Consulting Pty Ltd pay Ms Asnicar the sum of four thousand nine hundred and eighty eight dollars ($4,988.00) for economic loss and for hurt, humiliation and loss of faith in the employee/employer relationship; 2.That each party pay their own costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Asnicar v Mondo Consulting Pty Ltd [2004] NSWADT 143
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Lisa Asnicar RESPONDENT Mondo Consulting Pty Ltd
FILE NUMBER:	031153
HEARING DATES:	14/04/2004-15/04/2004, 10/05/2004
SUBMISSIONS CLOSED:	05/10/2004
DATE OF DECISION:	07/14/2004
BEFORE:	Layton R - Judicial Member; Clayton S - Non Judicial Member; Gill M - Non Judicial Member
APPLICATION:	Sex Discrimination - In work - Sexual Harassment - In workplace
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Sex Discrimination Act 1984 (Cth)
CASES CITED:	Bevacqua v Klinkert & Ors (No 1) (1993) EOC 92-515 Caton v Richmond Club Limited [2003] NSWADT 202 Colosimo and Banana Traders of Australia Pty Ltd t/as P W Chew & Co [2003] NSWIRComm 72, Allison v Bega Valley Council, (1995) 63 IR Johanson v Blackledge [2001] FMC 6 D -v- Berkeley Challange Pty Ltd [2001] NSWADT 92 Evans v Lee & Anor (1996) EOC 92-822 Hardy v Kelly (1991) EOC 91-369 Hudson -v- Strathfield Golf Club [2000] NSWADT 88 Judge v Cripps & Cripps Pty Ltd (1999) NSWADT 11 M v R Pty Ltd (1988) EOC 92 – 229 Park v Minister for Fair Trading & Ors [2000] NSWCA Re: Susan Hall; Dianne Susan Oliver and Karyn Reid AND A&A Sheiban Pty Ltd; Dr Atallah Sheiban AND Human Rights and Equal Opportunity Commission No NG1185 of 1988 Fed No 65 Sex Discrimination, 20 FCR 217 Roden v Thomas (1966) EOC 92-784. Samuels Real Estate v Lamb & Anor (1998) EOC 92-923 Shellharbour Golf Club v Wheeler [1999] NSW SC 224 Tenuyl v Delaney & Anor (1996) EOC 92-177. Aldridge v Booth (1988) EOC 92-222.
REPRESENTATION:	APPLICANT L Clegg, barrister RESPONDENT L Macinnis, barrister
ORDERS:	1.The Tribunal orders that Mondo Consulting Pty Ltd pay Ms Asnicar the sum of four thousand nine hundred and eighty eight dollars ($4,988.00) for economic loss and for hurt, humiliation and loss of faith in the employee/employer relationship; 2.That each party pay their own costs.