Hewett v Davies & Anor - [2006] FMCA 1678

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HEWETT v DAVIES & ANOR

[2006] FMCA 1678

HUMAN RIGHTS − Sex discrimination − where applicant a former part-time employee of the respondents − where applicant alleged the first respondent sexually harassed her under ss.28A and 28B(1)(a) Sex Discrimination Act 1984 − where facts in relation to the incident of harassment in dispute − whether incident constituted harassment − where the applicant resigned from the respondents’ employ shortly after the incident.

DAMAGES − Assessment − whether the incident resulted in a loss of wages for the applicant − whether special damages should be awarded for psychological injury following the incident − whether general damages should be awarded − whether aggravated damages should be awarded on account of the second respondent’s conduct following the resignation of the applicant.

Sex Discrimination Act 1984 (Cth), ss.28A, 28B(1)(a)
Federal Magistrates Court Rules 2001

Briginshaw v Briginshaw (1938) 60 CLR 336
Elliot v Nanda [2001] FCA 418
Aldridge v Booth (1988) 80 ALR 1
San v Dirluck (2006) 222 ALR 91

Applicant:

CATHERINE MARY HEWETT

First Respondent:

RONALD DAVIES

Second Respondent:

DEBORAH DAVIES

File Number:

SYG1505 of 2006

Judgment of:

Raphael FM

Hearing date:

25 October 2006

Date of Last Submission:

25 October 2006

Delivered at:

Sydney

Delivered on:

17 November 2006

REPRESENTATION

Counsel for the Applicant:

Mr J Wormington

Solicitors for the First Respondent:

The Charlestown Law Firm

Solicitors for the Second Respondent:

The Charlestown Law Firm

ORDERS

Respondents to pay the applicant the sum of $3,210.00 for breach of s.28B(1)(a) of the Sex Discrimination Act 1984.
Respondents to pay the applicant’s costs to be assessed in accordance with Part 21 Rule 21.02(2)(b) and Schedule 1 of the Federal Magistrates Court Rules 2001.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
NEWCASTLE

SYG1505 of 2006

CATHERINE MARY HEWETT

Applicant

And

RONALD DAVIES

First Respondent

DEBORAH DAVIES

Second Respondent

REASONS FOR JUDGMENT

In this proceeding the applicant seeks relief for what she claimed was a breach of s.28B of the Sex Discrimination Act 1984 (Cth) (the “SDA”) against the respondents, who are partners in a business trading as “Hair We Are”, arising out of an incident which occurred on 21 November 2005. Although the two respondents are partners in the business it is run by the second respondent. At the time of the alleged incident the first respondent was sitting in the salon having his hair treated by his daughter, an apprentice hairdresser. The applicant claims that the partnership is vicariously liable for the acts of one of the partners.

It would probably be more accurate to say that the partnership is responsible for the acts of any partner carried out in connection with the partnership business.
Ms Hewett is a hairdresser. She had been employed part time by Hair We Are at its salon at 499 High Street Maitland for some time.

On 21 November 2005 Ms Hewett was not working. The salon was closed to the public, however inside the salon were Mr Davies, Mrs Davies and…

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 Hewett v Davies & Anor

Details

AGLC: Hewett v Davies & Anor [2006] FMCA 1678
Case: [2006] FMCA 1678
Decision Date: 17 November 2006

CaseChat Overview and Summary

In Hewett v Davies & Anor, the applicant alleged that she had been sexually harassed by her former employer, which constituted a breach of sections 28A and 28B(1)(a) of the Sex Discrimination Act 1984. The applicant, a part-time employee, alleged that the first respondent engaged in conduct that amounted to sexual harassment, and the second respondent exacerbated the situation by not addressing the complaint appropriately. The case proceeded to the Federal Circuit Court of Australia to determine the validity of these claims and to assess appropriate remedies.

The primary legal issues before the court were whether the conduct alleged by the applicant indeed constituted sexual harassment under the Sex Discrimination Act, and if so, whether the applicant was entitled to any damages for the psychological injury suffered. Additionally, the court had to consider if the applicant's resignation was a direct result of the harassment and whether the second respondent's conduct post-resignation warranted any additional compensation. The court also needed to determine if special or general damages were appropriate, as well as whether aggravated damages were justified due to the second respondent's actions.

The court found that the conduct alleged by the applicant did constitute sexual harassment under the Sex Discrimination Act. It was established that the first respondent's actions met the criteria for harassment, and the second respondent's failure to adequately address the issue exacerbated the situation. The court awarded the applicant $3,210.00 for the breach of the Act. The court did not find sufficient evidence to award special damages for psychological injury, but it did award general damages. The court held that the second respondent's conduct post-resignation did not warrant aggravated damages. The respondents were ordered to pay the applicant’s costs in accordance with the relevant procedural rules.

In summary, the court found the first respondent liable for sexual harassment under the Sex Discrimination Act and ordered compensation of $3,210.00, along with costs, while declining to award special or aggravated damages. The decision underscores the importance of employers addressing complaints of harassment promptly and effectively.

Orders

Orders of the court

Respondents to pay the applicant the sum of $3,210.00 for breach of s.28B(1)(a) of the Sex Discrimination Act 1984.

Respondents to pay the applicant’s costs to be assessed in accordance with Part 21 Rule 21.02(2)(b) and Schedule 1 of the

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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