D v Berkeley Challenge Pty Ltd

[2001] NSWADT 92

CITATION:	D -v- Berkeley Challenge Pty Ltd [2001] NSWADT 92
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Mrs D RESPONDENT Berkeley Challenge Pty Ltd
FILE NUMBER:	991072
HEARING DATES:	07/03/2001, 08/03/2001
SUBMISSIONS CLOSED:	03/08/2001
DATE OF DECISION:	06/05/2001
BEFORE:	Britton A - Judicial Member; Nemeth de Bikal L - Member; Strickland J - Member
APPLICATION:	Sexual Harassment - In workplace - Victimisation
MATTER FOR DECISION:	Principal Matter
LEGISLATION CITED:	Anti-Discrimination Act 1977
CASES CITED:	Shellharbour Golf Course v Wheeler [1999] NSWSC 224 University of New South Wales v Moorhouse (1974-75)133 CLR 1 Falcon v Famous Players Film Co. [1926] 2 KB 474 Shaikh v Commissioner, NSW Fire Brigades (1996) EOC 92-808 Adelaide Corporation v Australasian Performing Right Association Ltd (1928) 40 CLR 481 Lal v President, Anti-Discrimination Board of New South Wales [2000] NSWADT 68 Crewdson -v- President, Anti-Discrimination Board of New South Wales [2000] NSWADT 60 Sivananthan v Commissioner of Police, New South Police Service [2001] NSWADT 44 O’ Callaghan v Loder [1984] EOC 92-023 Reddrop v Boeringer Ingleheim Pty Ltd [1984] EOC 92-031 Waterhouse v Bell (1991) 25 NSWLR 99 Hall v Sheiban (1985) ALR 503
REPRESENTATION:	APPLICANT P Newell, barrister RESPONDENT M Diamond, solicitor
ORDERS:	1. That the respondent pay the complainant within twenty-one days of the date of this decision the sum of $26,800.

Reasons for Decision

1 The complainant, Mrs D, was born in Greece and migrated to Australia in 1971. She commenced employment as a cleaner with the respondent, Berkeley Challenge Pty Ltd in January 1995, and left in mid-1998. Mrs D makes three complaints. First that she was subjected to sexual harassment contrary to s 22B of the Anti-Discrimination Act (NSW) 1997 (the Act); second, this harassment constituted unlawful discrimination on the grounds of sex in the area of employment contrary to the relevant provisions of s 25 of the Act; and third, that the respondent victimised her on the grounds that she had complained that she had been sexually harassed, in breach of s50 of the Act.

2 Mrs D made a complaint through her legal representatives, to the Anti-Discrimination Board (ADB) on 9 November 1998 alleging sexual harassment and victimisation in her employment with Berkeley Challenge. On 1 July 1999 the complainant wrote to the Board requesting that the matter be referred to the Equal Opportunity Division of the Administrative Decisions Tribunal. By letter dated 22 July 1999 the President of the Board referred Mrs D’s complaint to the Tribunal under s 94(1) of the Act.

Relevant provisions of the Act

3 Mrs D’s first complaint relates to sexual harassment. Part 2A of the Act prohibits sexual harassment in certain areas. Section 22B(2) makes it “… unlawful for an employee to sexually harass a fellow employee or a person who is seeking employment with the same employer”.

4 Section 22A defines sexual harassment to mean:
For the purposes of this Part, a person sexually harasses another person if:
(a) the person makes an unwelcome sexual advance, or an unwelcome request for…