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 680Yelda 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…
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- AGLC
- Evans v Denico (Discrimination) [2020] ACAT 44
- Case
- [2020] ACAT 44
- Decision Date
CaseChat Overview and Summary
The central legal issues before the Tribunal were the interpretation of the terms 'conduct of a sexual nature' and 'sexual harassment' as they appear in the relevant anti-discrimination legislation. Specifically, the Tribunal needed to determine whether the conduct alleged by Evans constituted discrimination on the basis of a protected attribute and whether it amounted to sexual harassment. The Tribunal also had to consider whether the applicant's perceived sexual orientation, rather than actual sexual orientation, could be the basis for a discrimination claim.
The Tribunal dismissed Evans' application, finding that the alleged conduct did not amount to discrimination or sexual harassment. The Tribunal concluded that there was insufficient evidence to support Evans' claims of discrimination based on perceived sexual orientation. Furthermore, the Tribunal determined that the alleged touching, while inappropriate, did not constitute 'conduct of a sexual nature' or 'sexual harassment' as defined in the legislation. Consequently, the application was dismissed.
Orders
Orders of the court
The Tribunal orders that:
1. The application is dismissed
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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