Chand v State Rail Authority - [2007] NSWADT 90

CITATION: Chand v State Rail Authority [2007] NSWADT 90

DIVISION: Equal Opportunity Division

PARTIES: APPLICANT
Bimla Chand
RESPONDENT
State Rail Authority

FILE NUMBER: 051080

HEARING DATES: 6 November 2006, 9 November 2006, 10 November 2006, 13 November 2006, 15 November 2006, 24 November 2006

SUBMISSIONS CLOSED: 26 November 2006

DATE OF DECISION:
17 April 2007

BEFORE: Ireland G - Judicial Member; Nemeth de Bikal L - Non Judicial Member; Hiffernan N - Non Judicial Member

CATCHWORDS: Sexual Harassment - In workplace - Victimisation

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Anti-Discrimination Act 1977
Evidence Act 1995

CASES CITED: Zhang v Blinds Pty Ltd (NSWADT 17 November 2006, unreported)

REPRESENTATION:
APPLICANT
P Gormly of counsel
RESPONDENT
K Nomchong of counsel instructed by C Robinson, Clayton Utz

ORDERS: 1. The complaints of sexual harassment against three employees of the respondent are not within the jurisdiction of the Tribunal. Each complaint is dismissed.; 2. That four of the complaints of victimisation against the respondent are not within the jurisdiction of the Tribunal. Each complaint is dismissed.; 3. That the remaining complaints of victimisation against the respondent are not substantiated. Each complaint is dismissed.

Complaint Background

1 On 7 June 2005, the President of the Anti-Discrimination Board (ADB), under s 93(C) of the Anti-Discrimination Act 1977 (AD Act) referred to the Tribunal complaints by the applicant ‘alleging discrimination by her employer State Rail Authority on the ground of race and disability discrimination and sexual harassment.’ The covering letter to the report from the President stated ‘my report of the investigation of the complaint is attached. I also attach the documents that were obtained in the course of the investigation as noted in the List of Documents.’

2 The report of the President referred to the Tribunal three types of complaint described as (1) race; (2) sexual harassment and (3) disability. No claim of victimisation was included by the President in the matters referred to the Tribunal.

3 On page 4 of the report, the President stated: ‘On the basis of the allegations outlined in the Board’s letter of 22 August and 1 September 2003, and accepted by the complainant as forming the basis of her complaint, Ms Chand alleges that the State Rail Authority discriminated against her on the grounds of race and disability and has complained of sexual harassment in the area of employment …’

4 Earlier in the report the President had identified the allegations on the grounds of race and disability and sexual harassment from the original complaint made by the applicant to the ADB in a fax dated 18 December 2002; a narrative statement of the applicant contained in the written complaint form received by the ADB on 20 January 2003; and a letter from the applicant to the ADB dated 2 April 2003 which the Board described as ‘a further letter from the complainant providing additional information about her complaint.’ The letter was written by the applicant following a request from the ADB for the applicant to clarify the…

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.

Continue reading Chand v State Rail Authority

Details

AGLC: Chand v State Rail Authority [2007] NSWADT 90
Case: [2007] NSWADT 90
Decision Date: 17 April 2007

CaseChat Overview and Summary

Chand v State Rail Authority involves the complainant, Chand, who brought multiple complaints to the relevant tribunal regarding both sexual harassment and victimisation against several employees of the State Rail Authority. The primary legal issues before the tribunal were whether the complaints of sexual harassment and victimisation fell within the Tribunal’s jurisdiction and, if so, whether these complaints were substantiated.

The tribunal began by examining the jurisdictional scope of its authority over the complaints of sexual harassment. It determined that the specific allegations concerning three employees of the respondent were beyond the Tribunal's jurisdiction, as they did not meet the statutory criteria for workplace harassment. As a result, these complaints were dismissed. For the allegations of victimisation, the tribunal found that four of the complaints did not fall within its jurisdiction, leading to their dismissal as well. The remaining victimisation complaints were reviewed and found to be unsubstantiated, thus each of these complaints was also dismissed.

Consequently, the tribunal dismissed all the complaints against the State Rail Authority, finding them either outside its jurisdictional remit or unsubstantiated. The tribunal's decision was clear in delineating which complaints were outside its authority and which were not supported by the evidence presented. The formal orders reflect the tribunal's conclusions, dismissing all complaints brought by Chand against the State Rail Authority.

Orders

Orders of the court

1. The complaints of sexual harassment against three employees of the respondent are not within the jurisdiction of the Tribunal. Each complaint is dismissed.; 2. That four of the complaints of victimisation against the respondent are not within the jurisdiction of the Tribunal. Each complaint is dismissed.; 3. That the remaining complaints of victimisation against the respondent are not substantiated. Each complaint is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Chand v State Rail Authority [2007] NSWADT 90
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Bimla Chand RESPONDENT State Rail Authority
FILE NUMBER:	051080
HEARING DATES:	6 November 2006, 9 November 2006, 10 November 2006, 13 November 2006, 15 November 2006, 24 November 2006
SUBMISSIONS CLOSED:	26 November 2006
DATE OF DECISION:	17 April 2007
BEFORE:	Ireland G - Judicial Member; Nemeth de Bikal L - Non Judicial Member; Hiffernan N - Non Judicial Member
CATCHWORDS:	Sexual Harassment - In workplace - Victimisation
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Anti-Discrimination Act 1977 Evidence Act 1995
CASES CITED:	Zhang v Blinds Pty Ltd (NSWADT 17 November 2006, unreported)
REPRESENTATION:	APPLICANT P Gormly of counsel RESPONDENT K Nomchong of counsel instructed by C Robinson, Clayton Utz
ORDERS:	1. The complaints of sexual harassment against three employees of the respondent are not within the jurisdiction of the Tribunal. Each complaint is dismissed.; 2. That four of the complaints of victimisation against the respondent are not within the jurisdiction of the Tribunal. Each complaint is dismissed.; 3. That the remaining complaints of victimisation against the respondent are not substantiated. Each complaint is dismissed.