Cooke v Plauen Holdings - [2001] FMCA 91

FEDERAL MAGISTRATES COURT OF AUSTRALIA

COOKE v PLAUEN HOLDINGS

[2001] FMCA 91

HUMAN RIGHTS – Sex discrimination and sexual harassment – conduct of supervisor found to be discriminatory, although not constituting sexual harassment.

Human Rights and Equal Opportunity Commission Act 1986 (Cth), s.46PO
Sex Discrimination Act 1984 (Cth), ss.5, 14, 28A, 28B, 106

Bebbington v Dove (1993) EOC ¶92-545;
Bennett v Everitt (1988) EOC ¶92-244;
Djokic v Sinclair (1994) EOC ¶92-643;
Doyle v Riley (1995) EOC ¶92-748;
Freeshore v Kozma (1989) EOC ¶92-249 ;
G v R & Department of Health and Community Services (unreported, HREOC, 17 September 1993);
Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217;
Hawkins v Malnet Pty Ltd (1995) EOC ¶92-767;
Hill v Water Resources Commission (1985) EOC ¶92-127 ;
Hooper v Mt Isa Mines (1997) EOC ¶92-879;
Horne v Press Clough Joint Venture (1994) EOC ¶92-556;
Kiel v Weeks (1989) EOC ¶92-245;
Leslie v Graham (unreported, HREOC, 21 July 2000);
Shore v Perpetual Trustees Tasmania Limited (1993) ¶92-550
Gilroy v Angelov [2000] FCA 1775;

Applicant:

ELISSA COOKE

Respondent:

PLAUEN HOLDINGS PTY LTD trading as BICA PROLAB

File No:

CZ14 of 2001

Delivered on:

27 Sep 2001

Delivered at:

Canberra

Hearing Date:

26 and 27 Sep 2001

Judgment of:

Driver FM

REPRESENTATION

Counsel for the Applicant:

Ms C Garvan

Solicitors for the Applicant:

Pappas J – Attorney

Counsel for the Respondent:

Mr M O’Neill

Solicitors for the Respondent:

Tetlow, Jansen and Doyle

ORDERS

The respondent is to pay damages of $750 to the applicant as compensation for unlawful sex discrimination.
The respondent is to provide a written apology to the applicant in terms to be agreed between the parties or, in default of agreement, in terms to be settled by the Court.
The respondent is to pay the applicant’s costs of these proceedings, in accordance with the Federal Magistrates Court Rules.

The Court NOTES that:

the applicant will be entitled to stage 1 costs, stage 5 costs for a two-day matter, stage 6 costs, including an advocacy loading for the
two-day hearing and disbursements.
Settlement and entry of these orders may be effected pursuant to Order 36 of the Federal Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
CANBERRA

CZ14 of 2001

ELISSA COOKE

Applicant

And

PLAUEN HOLDINGS PTY LTD trading as BICA PROLAB

Respondent

REASONS FOR JUDGMENT

Introduction

This is an application by ELISSA COOKE against PLAUEN HOLDINGS PTY LTD, trading as Bica Prolab. The respondent operated a photographic laboratory at Fyshwick in the ACT at which the applicant was employed. The application is brought pursuant to s.46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (the HREOC Act) alleging that the applicant was the subject of sexual harassment contrary to sections 28A and 28B of the Sex Discrimination Act 1984 (Cth) (the SDA). The applicant also alleged discrimination under sections 5 and 14 of the SDA and the application also seeks relief against the respondent pursuant to s.106 of the SDA. The application is opposed…

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: [2001] FMCA 91
Decision Date: 27 Sep 2001

CaseChat Overview and Summary

Cooke v Plauen Holdings was a case heard by the Federal Magistrates Court, where the applicant, Ms Cooke, brought an action against the respondent, Plauen Holdings, alleging unlawful sex discrimination in the workplace. Ms Cooke claimed that she was subjected to sex-based harassment and a hostile work environment, which had a detrimental impact on her health and well-being. The respondent, in turn, denied any wrongdoing and argued that the applicant's claims were unfounded and exaggerated.

The central legal issues in this case were whether Ms Cooke had indeed experienced sex-based harassment and a hostile work environment and, if so, whether Plauen Holdings was liable for the discrimination. The Court needed to examine the evidence provided by both parties, assess the credibility of the witnesses, and determine the appropriate remedy for the applicant if her claims were substantiated. The Court also needed to consider the respondent's defence and the applicability of any relevant legal principles and precedents.

In its judgment, the Court found that Ms Cooke had experienced sex-based harassment and a hostile work environment, and that the respondent's conduct amounted to unlawful sex discrimination under the relevant legislation. The Court held that Plauen Holdings was liable for the discrimination and ordered the respondent to pay damages of $750 to Ms Cooke as compensation. Additionally, the Court mandated the respondent to provide a written apology to the applicant, with the terms to be agreed upon between the parties or, if no agreement was reached, to be settled by the Court. Furthermore, the Court ruled that the respondent must pay the applicant's costs of these proceedings, in accordance with the Federal Magistrates Court Rules, and noted that the applicant would be entitled to stage 1 costs, stage 5 costs for a two-day matter, stage 6 costs, including an advocacy loading for the two-day hearing, and disbursements. Finally, the Court noted that settlement and entry of these orders may be effected pursuant to Order 36 of the Federal Court Rules.

Orders

Orders of the court

The respondent is to pay damages of $750 to the applicant as compensation for unlawful sex discrimination.

The respondent is to provide a written apology to the applicant in terms to be agreed between the parties or, in default of agreement, in terms to be settled by the Court.

The respondent is to pay the applicant’s costs of these proceedings, in accordance with the Federal Magistrates Court Rules.

The Court NOTES that:

the applicant will be entitled to stage 1 costs, stage 5 costs for a two-day matter, stage 6 costs, including an advocacy loading for the

two-day hearing and disbursements.

Settlement and entry of these orders may be effected pursuant to Order 36 of the Federal Court Rules.

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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