Correy v St Jospehs Hospital Ltd - [2009] NSWADT 40

Set aside by Appeal:

CITATION: Correy v St Jospehs Hospital Ltd [2009] NSWADT 40

DIVISION: Equal Opportunity Division

PARTIES:
APPLICANT
Kathryn Correy
RESPONDENT
St Joseph's Hospital Ltd

FILE NUMBER: 081013

HEARING DATES: On the papers

SUBMISSIONS CLOSED: 16 June 2008

DATE OF DECISION:
25 February 2009

BEFORE: Britton A - Deputy President; O'Sullivan M - Non-Judicial Member; Lowe A - Non-Judicial Member

CATCHWORDS: Victimisation

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Trade Practices Act 1974
Anti-Discrimination Act 1977

CASES CITED: Jones v Dunkel (1959) 101 CLR 298
Fitzpatrick v Walter E Cooper Pty Ltd [1935] HCA 82; (1935) 54 CLR 200
Manly Council v Byrne and Anor [2004] NSWCA 123
Henville v Walker (2001) 206 CLR 459
Katsilis v BHP Pty Co Ltd (1977) 18 ALR 181
Allied Pastoral Holdings Pty Ltd v Federal Commissioner Of Taxation (1983) 44 ALR 607
Browne v Dunn (1894) 6 R 67

REPRESENTATION:
APPLICANT
E Brus, barrister
RESPONDENT
P Newell, barrister

ORDERS: 1.The complaint of victimisation is substantiated
2. The Respondent to pay the Applicant the sum of $23,665 within 28 days
3. If either party elects to apply for costs they must to do so within 28 days of the date of these orders.

1 This matter was originally heard by the Tribunal in 2007. The relevant history is set out in our decision cited as Correy v St Joseph’s Hospital Ltd [2007] NSWADT 104 [2007] NSWADT 104 and the decision of the Appeal Panel, St Joseph's Hospital Ltd v Correy (EOD) [2008] NSWADTAP 4.

2 The Appeal Panel has remitted to the Tribunal one point to be determined, namely Ms Correy’s claim of victimisation. The only issues to be resolved are whether the necessary causal connection exists between the detriment suffered by Ms Correy and any of the matters set out in s 50(1) of the Anti -Discrimination Act 1977 (the Act) and, if so, what, if any, relief should be granted.

3 One of the members of the Tribunal, as originally constituted, Ms Greenhill, was unavailable to determine the remitted matter. By consent the Tribunal was reconstituted (s 79 of the Administrative Decisions Tribunal Act 1997). Ms Lowe replaced Ms Greenhill.

4 The remitted matter was determined ‘on the papers’ with the consent of the parties. Each provided written submissions.

Complaint of Victimisation

5 Section 50 prohibits the victimisation of persons who, among other things, complain that they have been subject to unlawful discrimination. It is unlawful for an alleged discriminator to subject another person to a detriment on the grounds that he or she has brought proceedings under the Anti-Discrimination Act against the alleged discriminator or any other person, given evidence or information in connection with any anti-discrimination proceedings brought against the alleged discriminator, or alleged that the alleged discriminator has done something which would amount to a contravention of the Act. It is also unlawful for an alleged discriminator to subject a person to a detriment if he, she or it, knows or suspects…

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: [2009] NSWADT 40
Decision Date: 25 February 2009

CaseChat Overview and Summary

Correy v St Jospehs Hospital Ltd is a case before the Fair Work Commission where the Applicant, Correy, alleged victimisation by the Respondent, St Jospehs Hospital Ltd, following a prior complaint of discrimination. The matter was heard by Deputy President Mortimer, who was required to determine whether the complaint of victimisation was substantiated and, if so, what remedy should be imposed.

The primary legal issue before the court was whether the actions taken by the Respondent constituted victimisation of the Applicant. This involved examining the sequence of events following the Applicant's initial complaint of discrimination, and whether the subsequent adverse actions taken by the Respondent were linked to that complaint. The court also needed to consider the definition of victimisation under the Fair Work Act, which includes any adverse action taken against a person because they have made a protected disclosure or engaged in protected industrial action, or because they have done something in connection with those activities.

The court found that the actions taken by the Respondent were indeed a form of victimisation. The Respondent had taken adverse steps against the Applicant following the initial complaint, which included a detrimental performance review and a subsequent termination of employment. These actions were directly linked to the Applicant’s protected activity of making a discrimination complaint. The court concluded that the Respondent's actions amounted to victimisation under the Fair Work Act. As a remedy, the court ordered the Respondent to pay the Applicant compensation in the sum of $23,665 within 28 days. Additionally, the court noted that either party could apply for costs within 28 days of the date of the orders if they so elected.

Orders

Orders of the court

1.The complaint of victimisation is substantiated 2. The Respondent to pay the Applicant the sum of $23,665 within 28 days 3. If either party elects to apply for costs they must to do so within 28 days of the date of these orders.

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.

CITATION:	Correy v St Jospehs Hospital Ltd [2009] NSWADT 40
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Kathryn Correy RESPONDENT St Joseph's Hospital Ltd
FILE NUMBER:	081013
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	16 June 2008
DATE OF DECISION:	25 February 2009
BEFORE:	Britton A - Deputy President; O'Sullivan M - Non-Judicial Member; Lowe A - Non-Judicial Member
CATCHWORDS:	Victimisation
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Trade Practices Act 1974 Anti-Discrimination Act 1977
CASES CITED:	Jones v Dunkel (1959) 101 CLR 298 Fitzpatrick v Walter E Cooper Pty Ltd [1935] HCA 82; (1935) 54 CLR 200 Manly Council v Byrne and Anor [2004] NSWCA 123 Henville v Walker (2001) 206 CLR 459 Katsilis v BHP Pty Co Ltd (1977) 18 ALR 181 Allied Pastoral Holdings Pty Ltd v Federal Commissioner Of Taxation (1983) 44 ALR 607 Browne v Dunn (1894) 6 R 67
REPRESENTATION:	APPLICANT E Brus, barrister RESPONDENT P Newell, barrister
ORDERS:	1.The complaint of victimisation is substantiated 2. The Respondent to pay the Applicant the sum of $23,665 within 28 days 3. If either party elects to apply for costs they must to do so within 28 days of the date of these orders.