Fricke v Corbett Research Pty Ltd - [2004] NSWADT 128

CITATION: Fricke v Corbett Research Pty Ltd [2004] NSWADT 128

DIVISION: Equal Opportunity Division

PARTIES: APPLICANT
Randolph Fricke
RESPONDENT
Corbett Research Pty Ltd

FILE NUMBER: 021119

HEARING DATES: 21/01/2004

SUBMISSIONS CLOSED: 01/21/2004

DATE OF DECISION:
06/29/2004

BEFORE: Bitel D - Judicial Member; Mooney L - Non Judicial Member; Nemeth de Bikal L - Non Judicial Member

APPLICATION: Dismissal of complaint - frivolous, vexatious, misconceived or lacking in substance

MATTER FOR DECISION: Principal matter

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

CASES CITED: Assal v Department of Health, Housing and Community Services (1992) EOC 92-409
Commissioner of Police v Orr (2001) NSWADTAP 16
Crewdson v President, Anti-Discrimination Board of NSW (2000) NSW ADT 60
Dee v Commissioner of Police & Anor 2003 NSW ADT 217
Ehl v Department of Education and Training and NSW Teachers Federation (1999) NSW ADT 102
Fairey v Fairey (No 2) [2000] NSWCA 173
Fricke v Whyburn (2003) NSW ADT 10
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Harding v Vice Chancellor, University of NSW (2003) NSWADT 14 and 74
IW v City of Perth (1997) 191 CLR 1
JA v State of NSW (2003) NSWADT 272
KB v Commissioner of Police, NSW Police Service (2002) NSW ADT 30
Kennedy v Director General, NSW Department of Industrial Relations (2002) NSW ADT 186
Lal v President, Anti-Discrimination Board (2000) NSW ADT 68
Langley v Niland (1981), 2 NSWLR
Langley v University of NSW (1984) EOC 92-018
Margan v University of Technology, Sydney (EOD) (2003) NSW ADTAP 65
Maylor No. 2 v Mid-North Coast Area Health Service (2001) NSWADT 118
Maylor(No. 1) v Mid-North Coast Area Health Service (2001) NSWADT 117
McGlade v Human Rights and Equal Opportunity Commission (2000) FCA 1477
Omeri v Quality Assurance Service Pty Limited (2003) NSW ADT 188
Prakash v Bobb Borg Enterprises Pty Limited (1999) NSWADT 73
Razaghi v Director General, NSW Department of Health & Anor (2002) NSW ADT 4
Re Refugee Review Tribunal; Ex parte H (2001) HCA 28, 75 ALJR 982
Reyes-Gonzalez v Sydney Institute of Technology (1998) NSWEOT 4 of 1997
Salama v Qantas Airways Limited (2002) NSW ADT 119
Shaikh v Commissioner, NSW Fire Brigades (1996) EOC 92-808
Sivanathan v Commissioner of Police, NSW Police Service (2001) NSWADT 44
State Electricity Commission of Victoria v Rabel (1998) 1 VR 102.
Tannock v State of NSW (1999) NSW ADT 73.
Tu v University of Sydney (No. 2) (EOD) (2002) NSWADTAP 25

REPRESENTATION: APPLICANT
In person
RESPONDENT
K Eastman, barrister

ORDERS: 1.The Tribunal dismisses the complaint of the complainant made on 8 November 2001 pursuant to Section 111(1) of the Anti-Discrimination Act 1997; 2.The Tribunal orders that the complainant pay the respondent's costs in these proceedings

Introduction

1 The complainant Randolph Fricke sent a letter of complaint dated 29 October 2001 alleging sexual harassment in employment and victimisation against his then employer Corbett Research Pty Ltd to the NSW Anti-Discrimination Board. This letter was received on 8 November 2001.…

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: [2004] NSWADT 128
Decision Date: 06/29/2004

CaseChat Overview and Summary

The Tribunal was called upon to consider a complaint under the Anti-Discrimination Act 1997 (the Act) brought by Fricke against Corbett Research Pty Ltd. Fricke, the complainant, alleged that Corbett Research, the respondent, had discriminated against him on the basis of his marital status and family responsibilities. The dispute arose from the respondent's decision to terminate Fricke's employment. Fricke claimed that the termination was influenced by his marital status and the fact that he had family responsibilities, which were factors the respondent should not have considered in making its decision.

The primary legal issues the Tribunal needed to decide were whether Corbett Research had indeed discriminated against Fricke in contravention of the Act and, if so, whether such discrimination was justified. The Tribunal had to examine the evidence presented by both parties, including the circumstances surrounding Fricke's employment and termination, to determine whether the respondent's actions were discriminatory and whether there were any justifiable reasons for the termination that were unrelated to Fricke's marital status or family responsibilities.

After considering the evidence and arguments presented, the Tribunal concluded that Fricke had not demonstrated that Corbett Research's decision to terminate his employment was based on his marital status or family responsibilities. The Tribunal found that the termination was made for reasons related to Fricke's performance and conduct at work, and there was no evidence of discrimination as defined by the Act. The Tribunal also determined that Fricke had not provided sufficient evidence to support his claim, and as such, the complaint was dismissed. Consequently, the Tribunal ordered Fricke to pay the respondent's costs in these proceedings.

Orders

Orders of the court

1.The Tribunal dismisses the complaint of the complainant made on 8 November 2001 pursuant to Section 111(1) of the Anti-Discrimination Act 1997; 2.The Tribunal orders that the complainant pay the respondent's costs in these proceedings

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:	Fricke v Corbett Research Pty Ltd [2004] NSWADT 128
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Randolph Fricke RESPONDENT Corbett Research Pty Ltd
FILE NUMBER:	021119
HEARING DATES:	21/01/2004
SUBMISSIONS CLOSED:	01/21/2004
DATE OF DECISION:	06/29/2004
BEFORE:	Bitel D - Judicial Member; Mooney L - Non Judicial Member; Nemeth de Bikal L - Non Judicial Member
APPLICATION:	Dismissal of complaint - frivolous, vexatious, misconceived or lacking in substance
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977
CASES CITED:	Assal v Department of Health, Housing and Community Services (1992) EOC 92-409 Commissioner of Police v Orr (2001) NSWADTAP 16 Crewdson v President, Anti-Discrimination Board of NSW (2000) NSW ADT 60 Dee v Commissioner of Police & Anor 2003 NSW ADT 217 Ehl v Department of Education and Training and NSW Teachers Federation (1999) NSW ADT 102 Fairey v Fairey (No 2) [2000] NSWCA 173 Fricke v Whyburn (2003) NSW ADT 10 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Harding v Vice Chancellor, University of NSW (2003) NSWADT 14 and 74 IW v City of Perth (1997) 191 CLR 1 JA v State of NSW (2003) NSWADT 272 KB v Commissioner of Police, NSW Police Service (2002) NSW ADT 30 Kennedy v Director General, NSW Department of Industrial Relations (2002) NSW ADT 186 Lal v President, Anti-Discrimination Board (2000) NSW ADT 68 Langley v Niland (1981), 2 NSWLR Langley v University of NSW (1984) EOC 92-018 Margan v University of Technology, Sydney (EOD) (2003) NSW ADTAP 65 Maylor No. 2 v Mid-North Coast Area Health Service (2001) NSWADT 118 Maylor(No. 1) v Mid-North Coast Area Health Service (2001) NSWADT 117 McGlade v Human Rights and Equal Opportunity Commission (2000) FCA 1477 Omeri v Quality Assurance Service Pty Limited (2003) NSW ADT 188 Prakash v Bobb Borg Enterprises Pty Limited (1999) NSWADT 73 Razaghi v Director General, NSW Department of Health & Anor (2002) NSW ADT 4 Re Refugee Review Tribunal; Ex parte H (2001) HCA 28, 75 ALJR 982 Reyes-Gonzalez v Sydney Institute of Technology (1998) NSWEOT 4 of 1997 Salama v Qantas Airways Limited (2002) NSW ADT 119 Shaikh v Commissioner, NSW Fire Brigades (1996) EOC 92-808 Sivanathan v Commissioner of Police, NSW Police Service (2001) NSWADT 44 State Electricity Commission of Victoria v Rabel (1998) 1 VR 102. Tannock v State of NSW (1999) NSW ADT 73. Tu v University of Sydney (No. 2) (EOD) (2002) NSWADTAP 25
REPRESENTATION:	APPLICANT In person RESPONDENT K Eastman, barrister
ORDERS:	1.The Tribunal dismisses the complaint of the complainant made on 8 November 2001 pursuant to Section 111(1) of the Anti-Discrimination Act 1997; 2.The Tribunal orders that the complainant pay the respondent's costs in these proceedings