Evans v Denico (Discrimination)

[2020] ACAT 44

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

EVANS v DENCIO (Discrimination) [2020] ACAT 44

DT 35/2019

Catchwords:               DISCRIMINATION – claim of discrimination in the provision of goods, services and facilities – claim of discrimination on the basis of a protected attribute the applicant was thought to have, namely his sexual orientation – claim of sexual harassment – meaning of ‘conduct of a sexual nature’ and ‘sexual harassment’ – application dismissed

Legislation cited:        ACT Civil and Administrative Tribunal Act 2008 ss 9, 32

Discrimination Act 1991 ss 8, 20, 58,
Human Rights Commission Act 2005 ss 53A,
Sexual Discrimination Act 1984

Cases cited:Complainant 201808 v Transport Canberra and City Services[2018] ACAT 132

Forkin v Young [2020] NSWCATAD 29
Hall v A & A Sheiban Pty Ltd [1989] 20 FCR 217
Mewett v University of Canberra [2018] ACAT 61
Poniatowska v Hickinbotham [2009] FCA 680

The State Electricity Commission of Victoria v Andrew Rabel and the President & Members of the Equal Opportunity Board [1996] VSC 78

Yelda v Sydney Water Corporation; Yelda v Vitality Works Australia Pty Ltd [2019] NSWCATAD 203

Tribunal:  Senior Member K Katavic

Date of Orders:  19 June 2020  

Date of Reasons for Decision: 19 June 2020          

AUSTRALIAN CAPITAL TERRITORY          

CIVIL & ADMINISTRATIVE TRIBUNAL           DT 35/2019

BETWEEN:

SCOTT EVANS

Applicant

AND:

ARIEL DENCIO

Respondent

TRIBUNAL:     Senior Member Kristy Katavic

DATE:19 June 2020

ORDER

The Tribunal orders that:

1.The application is dismissed

………………………………..

Senior Member K Katavic

REASONS FOR DECISION

Introduction

1.The parties in this application were patrons of the same gym. The applicant, Mr Evans was a client and the respondent, Mr Dencio an employee. For a period of time, the respondent was the applicant’s personal trainer. The respondent had a number of clients one of which happened to be a friend of the applicant at that time.

2.Things deteriorated between the parties when the applicant became aware of the respondent allegedly commenting to the applicant’s friend on his sexual orientation. This escalated between the parties sometime later during a personal training session.

3.Eventually the applicant ceased the services of the respondent and made a complaint to the ACT Human Rights Commission (HRC). On 21 October 2019, the complaint was referred to the Tribunal in accordance with section 53A of the Human Rights Commission Act 2005 (HRC Act).

4.The applicant essentially makes two allegations under the Discrimination Act 1991 (Discrimination Act) contending that he was discriminated against by the respondent in the course of the provision of personal training services due to a perceived protected attribute being his sexuality, and that the respondent engaged in unwelcomed conduct of a sexual nature constituting sexual harassment.

5.The Tribunal regards referrals from the HRC as an application made under section 9 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act).[1]

Summary dismissal application

[1] Mewett v University of Canberra [2018] ACAT 61 at [11]

6.At a directions hearing before a presidential member on 16 March 2020, the respondent made an…