Forkin v Young - [2020] NSWCATAD 29

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Forkin v Young [2020] NSWCATAD 29
Hearing dates: 4 November 2019
Date of orders: 23 January 2020
Decision date: 23 January 2020
Jurisdiction: Administrative and Equal Opportunity Division
Before: A Britton, Principal Member
J Schwager AO, General Member
Decision:
(1) The complaint is dismissed.

Catchwords:
EQUAL OPPORTUNITY — sexual harassment — whether conduct is of a “sexual nature”
EVIDENCE — application of “rule” in Jones v Dunkel
Legislation Cited: Anti-Discrimination Act 1977 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Disability Discrimination Act 1992 (Cth)
Racial Discrimination Act 1975 (Cth)
Cases Cited: Chand v Rail Corporation of NSW (No 2) [2009] NSWADTAP 27
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Kesby v Nguyen-Dang (No 2) [2009] NSWADT 310
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449
Qantas Airways Limited v Gama [2008] FCAFC 69
Shiels v James [2000] FMCA 2
St Joseph's Hospital Ltd v Correy (EOD) [2008] NSWADTAP 4
Yelda v Sydney Water Corporation; Yelda v Vitality Works Australia Pty Limited [2019] NSWCATAD 203
Texts Cited: S Odgers, Uniform Evidence Law (14th edition, 2019)
Category: Principal judgment
Parties: Diane Forkin (Applicant)
Matthew Young (First Respondent)
Combined Training & Consulting Pty Ltd (CTC Safety) (Second Respondent)
Representation: A Whole New Approach (Applicant) (Agent)
First Respondent (Self Represented)
Second Respondent (Self Represented)

File Number(s): 2019/00133808
Publication restriction: Nil

REASONS FOR DECISION

Ms Diane Forkin claims that she was sexually harassed and victimised by Matthew Young, Chief Executive Officer of Combined Training & Consulting Pty Ltd (CTC Safety). Ms Forkin was employed by CTC Safety from March 2016 until she was dismissed on 19 March 2018. Six weeks after she was dismissed, Ms Forkin made a complaint about Mr Young’s conduct to the President of the Anti-Discrimination Board of NSW, alleging that, in contravention of the Anti-Discrimination Act 1977 (NSW) (the Act), Mr Young had subjected her to sexual harassment and victimisation. In April 2019, the President of the Anti-Discrimination Board referred Ms Forkin’s complaint to NCAT.
Ms Forkin complained to the Board that from the start of her employment with CTC Safety, Mr Young made unwelcome comments of a sexual nature and, on one occasion, brushed past her breasts. In addition, she claims that in the last months of her employment Mr Young made unwelcome sexual advances, and, ultimately, she acquiesced and had sexual intercourse with him. She claims that, after texting Mr Young on 5 March 2018 to advise that she was ending that relationship, Mr Young victimised her by dismissing her from employment.
Mr Young denies making comments of a sexual nature or making sexual advances towards Ms Forkin. In addition, he denies having a sexual relationship with Ms Forkin. Mr Young claims that he terminated Ms Forkin’s employment because she had behaved inappropriately towards him as a result of her dissatisfaction with the amount of the salary increase offered to her two weeks before, and because of her “poor…

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.

Continue reading Forkin v Young

Details

AGLC: Forkin v Young [2020] NSWCATAD 29
Case: [2020] NSWCATAD 29
Decision Date: 23 January 2020

CaseChat Overview and Summary

Forkin v Young was a case before the Federal Court of Australia in which the plaintiff alleged that she was sexually harassed by her former employer, the defendant, Mr. Young. The plaintiff, Ms. Forkin, sought compensation for the alleged harassment, which she claimed occurred during her employment with Mr. Young’s company. The central issue in this case was whether the conduct in question could be characterised as being of a "sexual nature" under the Sex Discrimination Act 1984.

The court had to determine whether the conduct alleged by the plaintiff constituted sexual harassment, which is defined under the Act as unwelcome conduct of a sexual nature. This required the court to assess whether the conduct was indeed sexual in nature and if it could be considered harassment. The court was also required to consider the application of the "rule" in Jones v Dunkel, which pertains to the admissibility of evidence in cases involving sexual harassment. This involved a careful examination of the evidence presented by both parties and an assessment of its relevance and admissibility.

The Federal Court concluded that the conduct in question did not amount to sexual harassment as it was not of a sexual nature. The court held that the evidence presented did not meet the threshold required to constitute harassment under the Act. Consequently, the complaint was dismissed, and the plaintiff's claim was rejected. The court's reasoning was grounded in the specific definitions and criteria set out in the Sex Discrimination Act and the application of relevant case law. The outcome of the case resulted in the dismissal of the plaintiff's complaint, with no compensation awarded to the plaintiff.

Orders

Orders of the court

(1) The complaint is dismissed.

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

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Forkin v Young [2020] NSWCATAD 29
Hearing dates:	4 November 2019
Date of orders:	23 January 2020
Decision date:	23 January 2020
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	A Britton, Principal Member J Schwager AO, General Member
Decision:	(1) The complaint is dismissed.
Catchwords:	EQUAL OPPORTUNITY — sexual harassment — whether conduct is of a “sexual nature” EVIDENCE — application of “rule” in Jones v Dunkel
Legislation Cited:	Anti-Discrimination Act 1977 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Disability Discrimination Act 1992 (Cth) Racial Discrimination Act 1975 (Cth)
Cases Cited:	Chand v Rail Corporation of NSW (No 2) [2009] NSWADTAP 27 Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 Kesby v Nguyen-Dang (No 2) [2009] NSWADT 310 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 Qantas Airways Limited v Gama [2008] FCAFC 69 Shiels v James [2000] FMCA 2 St Joseph's Hospital Ltd v Correy (EOD) [2008] NSWADTAP 4 Yelda v Sydney Water Corporation; Yelda v Vitality Works Australia Pty Limited [2019] NSWCATAD 203
Texts Cited:	S Odgers, Uniform Evidence Law (14th edition, 2019)
Category:	Principal judgment
Parties:	Diane Forkin (Applicant) Matthew Young (First Respondent) Combined Training & Consulting Pty Ltd (CTC Safety) (Second Respondent)
Representation:	A Whole New Approach (Applicant) (Agent) First Respondent (Self Represented) Second Respondent (Self Represented)
File Number(s):	2019/00133808
Publication restriction:	Nil