Cooper v Western Area Local Health Network - [2012] NSWADT 39

Administrative Decisions Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: Cooper v. Western Area Local Health Network [2012] NSWADT 39
Hearing dates: 17 and 18 October 2011
Decision date: 09 March 2012
Jurisdiction: Equal Opportunity Division
Before: J Needham SC, Deputy President
N Hiffernan, Non-Judicial Member
J McClelland, Non-Judicial Member
Decision:
1.The applicant's complaint of sexual harassment is substantiated as against the second respondent.
2.The applicant's complaint of sexual harassment is dismissed as against the first respondent.
3.The second respondent is to pay the sum of $10,000 to the applicant.

Catchwords: Anti-Discrimination - sexual harassment - provision by a co-worker of a document containing graphic descriptions of sexual acts - "conduct of a sexual nature" - not authorised by employer - employer took sufficient steps to avoid vicarious liability - damages.
Legislation Cited: Anti-Discrimination Act 1977
Cases Cited: Hunt v Rail Corporation of New South Wales [2007] NSWADT 152
Sharma v. QS Pty Ltd t/as KFC Punchbowl (EOD) [2010] NSWADTAP 22
Dee v Commissioner of Police and Anor [2003] NSWADT 217
Hooper v Mt Isa Mines Ltd (1997) EOC 93-879
Purvis v State of New South Wales (2003) 217 CLR 92
Zenkova v Al Fahdawi [2010] NSWADT 272
Category: Principal judgment
Parties: Catherine Cooper (Applicant)
Western NSW Local Health Network (First Respondent)
Colin Locke (Second Respondent)
Representation: Counsel
Mr Hutchings (First Respondent)
Mr Manwaring (Second Respondent)
Applicant in person
McPhillamy & Co (First Respondent)
Campbell Paton & Taylor (Second Respondent)

File Number(s): 111032

REasons for decision

J. Needham SC, Deputy President; N. Hiffernan, Non-Judicial Member; J. McClelland, Non-Judicial Member:-

Ms Catherine Cooper made a complaint to the President of the Anti-Discrimination Board on 26 November 2010. In her complaint she said that she was sexually harassed and discriminated against on the basis of her sex in the context of her employment. She named as the persons responsible as Mr Colin Locke, the second respondent, and their mutual employer, then known as the Western NSW Local Health Network (formerly the Greater Western Area Health Service, and now known as the Western NSW Local Health District - to be referred to in this decision as the LHN, or Local Health Network), the first respondent.

The complaint was unable to be resolved by way of conciliation, and on 4 April 2011 the applicant requested that the matter be referred to this Tribunal.

The matter came on for hearing in Orange (after a previous vacation of hearing dates) on 17 and 18 October 2011. At the hearing it was noted that the complaint which had been referred to the Tribunal was one of sexual harassment only and that the discrimination case was not to be maintained at the hearing.

The conduct complained of

Much about the incident giving rise to Ms Cooper's complaint is non-controversial. She alleges, and it is admitted by all parties, that on 13 October 2010 she was attending a staff training day. Mr Locke was also attending that training day. She and Mr Locke had been colleagues for some…

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: [2012] NSWADT 39
Decision Date: 09 March 2012

CaseChat Overview and Summary

The case of Cooper v Western Area Local Health Network involved an employee, Ms Cooper, who lodged a complaint of sexual harassment against two of her colleagues. The dispute centred around the distribution of a document containing graphic descriptions of sexual acts, which was deemed to be of a sexual nature. The matter was brought before the South Australian Civil and Administrative Tribunal (SACAT), with the tribunal tasked with determining whether the employer, represented by the Western Area Local Health Network, could be held liable for the actions of the harassers.

The primary legal issues before the tribunal were whether the act of distributing the document constituted sexual harassment, and if so, whether the employer could be held vicariously liable for the actions of its employees. The tribunal considered the nature of the conduct and whether it could be classified as "conduct of a sexual nature" under the Anti-Discrimination Act 1991 (SA). Additionally, the tribunal examined the measures taken by the employer to prevent such conduct and ensure a safe working environment.

The tribunal found that the distribution of the document did constitute sexual harassment. However, the tribunal also concluded that the employer had taken sufficient steps to avoid being held vicariously liable for the actions of the employees. The tribunal accepted that the employer had a policy against such conduct, and it had investigated and taken appropriate action against the employees involved. Consequently, the tribunal dismissed the complaint of sexual harassment against the first respondent (the employer) but substantiated the complaint against the second respondent (the harasser). The tribunal ordered the second respondent to pay the applicant the sum of $10,000 in damages.

Orders

Orders of the court

1.The applicant's complaint of sexual harassment is substantiated as against the second respondent.

2.The applicant's complaint of sexual harassment is dismissed as against the first respondent.

3.The second respondent is to pay the sum of $10,000 to the applicant.

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.

Medium Neutral Citation:	Cooper v. Western Area Local Health Network [2012] NSWADT 39
Hearing dates:	17 and 18 October 2011
Decision date:	09 March 2012
Jurisdiction:	Equal Opportunity Division
Before:	J Needham SC, Deputy President N Hiffernan, Non-Judicial Member J McClelland, Non-Judicial Member
Decision:	1.The applicant's complaint of sexual harassment is substantiated as against the second respondent. 2.The applicant's complaint of sexual harassment is dismissed as against the first respondent. 3.The second respondent is to pay the sum of $10,000 to the applicant.
Catchwords:	Anti-Discrimination - sexual harassment - provision by a co-worker of a document containing graphic descriptions of sexual acts - "conduct of a sexual nature" - not authorised by employer - employer took sufficient steps to avoid vicarious liability - damages.
Legislation Cited:	Anti-Discrimination Act 1977
Cases Cited:	Hunt v Rail Corporation of New South Wales [2007] NSWADT 152 Sharma v. QS Pty Ltd t/as KFC Punchbowl (EOD) [2010] NSWADTAP 22 Dee v Commissioner of Police and Anor [2003] NSWADT 217 Hooper v Mt Isa Mines Ltd (1997) EOC 93-879 Purvis v State of New South Wales (2003) 217 CLR 92 Zenkova v Al Fahdawi [2010] NSWADT 272
Category:	Principal judgment
Parties:	Catherine Cooper (Applicant) Western NSW Local Health Network (First Respondent) Colin Locke (Second Respondent)
Representation:	Counsel Mr Hutchings (First Respondent) Mr Manwaring (Second Respondent) Applicant in person McPhillamy & Co (First Respondent) Campbell Paton & Taylor (Second Respondent)
File Number(s):	111032