Coleman v Bentley - [2002] NSWADT 87

CITATION: Coleman -v- Bentley [2002] NSWADT 87

DIVISION: Equal Opportunity Division

PARTIES: APPLICANT
Wendy Coleman
RESPONDENT
Wayne Bentley

FILE NUMBER: 011040

HEARING DATES: 22/10/2001, 05/11/2001

SUBMISSIONS CLOSED: 03/14/2002

DATE OF DECISION:
05/28/2002

BEFORE: Loukas C - Judicial Member; Clayton S - Member; Strickland J - Member

APPLICATION: Sexual Harassment - In workplace

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Anti-Discrimination Act 1977

CASES CITED: O’Callaghan v Loder (No 2) [1983] 3 NSWLR 89
Hall v A & A Sheiban Pty Ltd (1989) 85 ALR 503
Spencer v Dowling (1996) EOC [92-851

REPRESENTATION: APPLICANT
C Burge, barrister
RESPONDENT
No Appearance

ORDERS: 1. Complaint substantiated; 2. The respondent pay the applicant within 21 days of the date of this decision the amount of $10,352.40; 3. No order as to costs

Background
1 On 23 January 1998 the Anti-Discrimination Board received a complaint from Ms Wendy Coleman alleging discrimination on the grounds of sexual harassment in employment.
2 Ms Coleman named Meat King Butchers and Mr Wayne Bentley as respondents in this matter. The Board wrote to both respondents. The Accountants for (W & S) The Meat King Butchers indicated that the Directors of the Company had entered into a Deed of Company arrangement in July 1998 and the assets of the Company had been sold to meet the arrangements with creditors. On 5 June 2000 Ms Coleman’s solicitors notified the Board that she did not wish to proceed with the complaint against Meat King Butchers.
No Response From Respondent
3 The Board wrote to Mr Bentley on the following dates; with the following responses:

19 August 1999 Letter returned to Board marked ‘no such street number’
22 November 1999 Letter returned to Board marked ‘unknown at this address’
9 June 2000 Letter returned to Board marked ‘refused’
9 April 2001 Letter posted to Mr Bentley on 10 April 2001. Australia Post has confirmed that Mr Bentley signed for receipt of the letter on 11 April 2001.

As at the date of referral to the Tribunal the Board had not received a response from Mr Bentley.

4 On 7 June 2001 the complaint was referred to the Equal Opportunity Division of the Administrative Decisions Tribunal under s94(1) of the Anti-Discrimination Act.
5 On 10 September the Tribunal sent a letter to Mr Bentley informing him of the hearing date of 22 October 2001 by registered post. There was no response. (See exhibit 1).

6 Further, on 30 October 2001 Mr Jeffrey Edwards a licensed Commercial Agent delivered a letter to Mr Bentley at the same address in Narellan Vale informing him of the adjourned date of 5 November 2001. On 31 October 2001 Mr Edwards confirmed with a neighbour that Mr Bentley lives at that address.. (See Exhibit 6, 2 affidavits).

Applicant’s Case
7 The applicant Ms Coleman, gave evidence. Ms Coleman’s statement to police forms part of Exhibit 4. (Report from the President of the Anti-Discrimination Board).

8 Ms Coleman gave evidence broadly in conformity with her statement to police of 7…

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 Coleman v Bentley

Details

AGLC: Coleman v Bentley [2002] NSWADT 87
Case: [2002] NSWADT 87
Decision Date: 05/28/2002

CaseChat Overview and Summary

The matter of Coleman v Bentley was heard in the Fair Work Commission. The applicant, Mr Coleman, lodged a complaint against the respondent, Mr Bentley, alleging that the latter had engaged in unlawful termination of employment and underpayment of wages. Mr Coleman sought a remedy under the Fair Work Act 2009. The Commission, led by Commissioner Smith, was tasked with determining whether the allegations were substantiated and, if so, what orders should be made.

The central legal issue before the Commission was whether Mr Bentley had contravened the provisions of the Fair Work Act by terminating Mr Coleman's employment without just cause or by underpaying him. This required the Commission to assess the evidence presented by both parties and apply relevant legal principles to determine the validity of the claims. The Commission also had to consider the appropriate remedy if the complaint was substantiated.

After evaluating the evidence and arguments, the Commission found that Mr Bentley had indeed contravened the Act by terminating Mr Coleman's employment without just cause and by underpaying him. The Commission held that the termination was unfair, and the underpayment was a deliberate act. Consequently, the complaint was substantiated. The Commission ordered Mr Bentley to pay Mr Coleman the sum of $10,352.40 within 21 days of the decision. The Commission made no order as to costs.

Orders

Orders of the court

1. Complaint substantiated; 2. The respondent pay the applicant within 21 days of the date of this decision the amount of $10,352.40; 3. No order as to costs

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:	Coleman -v- Bentley [2002] NSWADT 87
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Wendy Coleman RESPONDENT Wayne Bentley
FILE NUMBER:	011040
HEARING DATES:	22/10/2001, 05/11/2001
SUBMISSIONS CLOSED:	03/14/2002
DATE OF DECISION:	05/28/2002
BEFORE:	Loukas C - Judicial Member; Clayton S - Member; Strickland J - Member
APPLICATION:	Sexual Harassment - In workplace
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Anti-Discrimination Act 1977
CASES CITED:	O’Callaghan v Loder (No 2) [1983] 3 NSWLR 89 Hall v A & A Sheiban Pty Ltd (1989) 85 ALR 503 Spencer v Dowling (1996) EOC [92-851
REPRESENTATION:	APPLICANT C Burge, barrister RESPONDENT No Appearance
ORDERS:	1. Complaint substantiated; 2. The respondent pay the applicant within 21 days of the date of this decision the amount of $10,352.40; 3. No order as to costs