CITATION: Chand v State Rail Authority [2007] NSWADT 90 DIVISION: Equal Opportunity Division PARTIES: APPLICANT
Bimla Chand
RESPONDENT
State Rail AuthorityFILE 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 2007BEFORE: 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 1995CASES CITED: Zhang v Blinds Pty Ltd (NSWADT 17 November 2006, unreported) REPRESENTATION: APPLICANT
RESPONDENT
P Gormly of counsel
K Nomchong of counsel instructed by C Robinson, Clayton UtzORDERS: 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…
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- AGLC
- Chand v State Rail Authority [2007] NSWADT 90
- Case
- [2007] NSWADT 90
- Decision Date
CaseChat Overview and Summary
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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