Ho v Regulator Australia Pty Ltd

Case [2004] FMCA 62


FEDERAL MAGISTRATES COURT OF AUSTRALIA

HO v REGULATOR AUSTRALIA PTY LTD & ANOR [2004] FMCA 62
HUMAN RIGHTS – Sex discrimination in employment – allegations of discrimination on the basis of pregnancy, gender, sexual harassment and victimisation – allegations denied – credibility of witnesses– competing psychiatric evidence about the applicant – applicant suffering from a psychiatric disorder although the nature of that disorder the subject of competing expert opinion – impact of the applicant’s condition upon her evidence considered – no sexual harassment or victimisation but applicant discriminated against on the basis of her sex and pregnancy.

Crimes Act 1900 (NSW), ss.61, 562C
Human Rights and Equal Opportunity Commission Act 1986 (Cth), s.46PO
Sex Discrimination Act 1984 (Cth), ss.5, 7, 7B, 14, 28A, 28B, 94, 106

Aldridge v Booth & Ors (1986) EOC 92-177
Aleksovski v AAA Pty Ltd [2002FMCA 81
Beamish v Zheng [2004] FMCA 60
Bradshaw v McEwans Pty Ltd (1951), unreported
Briginshaw v Briginshaw (1938) 60 CLR 336
Cooke v Paluen Holdings [2001] FMCA 91
Erbs v Overseas Corporation Pty Ltd (1986) EOC 92-181
Gilroy v Angelov [2000] FCA 1775
Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217
Lawrence v Clark (1993) EOC 92-539
McAllister v SEQ Aboriginal Corporation & Anor [2002] FMCA 109
Rohan v Thomas (1996) EOC 92-7784
Shiels v James & Lipman Pty Ltd [2000] FMCA 2
Tadawan v State of South Australia [2001] FMCA 25
Tenuyl v Delaney & Anor (1996) EOC 92-836
TNT Management Pty Ltd v Brooks (1979) 23 ALR 345

Applicant: MARIA HO

First Respondent:

Second Respondent:

REGULATOR AUSTRALIA PTY LTD

NEIL KENNY

File No: SZ1388 of 2002
Delivered on: 12 May 2004
Delivered at: Sydney

Hearing dates:

Date last submissions received:

1 – 4 September 2003, 9 February 2004

27 April 2004

Judgment of: Driver FM

REPRESENTATION

Counsel for the Applicant: Ms E Brus
Solicitors for the Applicant: Dooley & Associates
Counsel for the Respondent: Ms L Rowan
Solicitors for the Respondent: Clark McNamara Lawyers

ORDERS

  1. The Court declares that the first respondent, through the agency of Mrs Joanne Kenny, discriminated against the applicant in breach of s.5(1)(a) of the Sex Discrimination Act 1984 (Cth), by requesting the applicant to change the towels in the men’s washroom at the premises of the first respondent.

  2. The Court declares that the first and second respondents discriminated against the applicant in breach of s.7(1)(a) of the Sex Discrimination Act 1984 (Cth) by subjecting the applicant to a meeting about her maternity leave application on 25 February 2002.

  3. The first and second respondents shall pay $1,000 in general damages to the applicant, inclusive of interest up to judgment.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ1388 of 2002

MARIA HO

Applicant

And

REGULATOR AUSTRALIA PTY LTD

First Respondent

NEIL KENNY

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

  1. The applicant is a former employee of the first respondent. The second respondent is the managing director of the first respondent and the former supervisor of the applicant. The application is…

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Details
AGLC
Ho v Regulator Australia Pty Ltd [2004] FMCA 62
Case
[2004] FMCA 62
Decision Date

CaseChat Overview and Summary

The applicant, Ms Ho, brought proceedings against the first and second respondents, Regulator Australia Pty Ltd and Mrs Joanne Kenny, alleging discrimination on the basis of her sex. The dispute arose out of events that occurred during the applicant’s employment with the first respondent, culminating in the applicant being dismissed from her employment. The case was heard in the Federal Circuit Court of Australia. The applicant sought a declaration that the first and second respondents had discriminated against her in contravention of the Sex Discrimination Act 1984 (Cth). Additionally, she sought damages for the harm suffered.

The court had to determine whether the acts of the first and second respondents constituted discrimination against the applicant, as alleged. Specifically, the court needed to examine whether the requirement for the applicant to change towels in the men’s washroom, and the manner in which her maternity leave application was handled, constituted discrimination under the Act. The court also needed to consider whether the first and second respondents were vicariously liable for the actions of Mrs Kenny. Furthermore, the court had to determine the appropriate remedy for the breaches.

In examining the evidence, the court found that the first respondent, through the agency of Mrs Kenny, did discriminate against the applicant. The court found that the requirement for the applicant to change towels in the men’s washroom was discriminatory, as it was based on her sex. The court also found that the manner in which the applicant’s maternity leave application was handled constituted discrimination, as it involved an unnecessary and humiliating process for the applicant. The court found that the first and second respondents were vicariously liable for the actions of Mrs Kenny. The court concluded that the breaches of the Act were intentional, and that the applicant had suffered harm as a result. The court ordered that the first and second respondents pay $1,000 in general damages to the applicant, inclusive of interest up to judgment.

Orders

Orders of the court

1.

The Court declares that the first respondent, through the agency of Mrs Joanne Kenny, discriminated against the applicant in breach of s.5(1)(a) of the Sex Discrimination Act 1984 (Cth), by requesting the applicant to change the towels in the men’s washroom at the premises of the first respondent.

2.

The Court declares that the first and second respondents discriminated against the applicant in breach of s.7(1)(a) of the Sex Discrimination Act 1984 (Cth) by subjecting the applicant to a meeting about her maternity leave application on 25 February 2002.

3.

The first and second respondents shall pay $1,000 in general damages to the applicant, inclusive of interest up to judgment.

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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