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
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.
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.
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
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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- AGLC
- Ho v Regulator Australia Pty Ltd [2004] FMCA 62
- Case
- [2004] FMCA 62
- Decision Date
CaseChat Overview and Summary
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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