Horman v Distribution Group Ltd

[2001] FMCA 52

FEDERAL MAGISTRATES COURT OF AUSTRALIA

Horman v Distribution Group Limited  [2001] FMCA 52

DISCRIMINATION – sexual harassment Sex Discrimination Act ss. 28A, 14(2)(d) – where the applicant initiated, participated in or encouraged certain behaviour, that does not prevent other behaviour directed towards or in the presence of the applicant being unwelcome and constituting harassment – applicant found not to be a witness of truth – some allegations accepted on corroboration by other witnesses – discrimination found – discrimination on grounds of pregnancy s. 7(1)(b) and (c) – not found – unlawful termination on the grounds of pregnancy – Sex Discrimination Act ss. 7 and 14 – not found – racial discrimination Racial Discrimination Act s. 18C – some allegations accepted – racial discrimination found

COSTS – where successful applicant’s misconduct lengthened the hearing – each party to pay own costs

Sex Discrimination Act 1984 (Cth) ss. 7, 7(1)(b) and (c), 14, 14(2)(d), 28A, 105, 106

Racial Discrimination Act 1975 (Cth) s. 18A, 18C

Donna Marie Shiels v Trevor Leighton James SZ3/2000, followed

L v M Ltd (1994) EOC 92-617, followed

Hall v A and A Sheiban Pty Limited (1989) 20 FCR 217, followed

Newcrest Mining (WA), BHP Minerals Limited v The Commonwealth of Australia, The Direction of National Parks and Wildlife (1993) FCA unreported, considered

Colgate Palmolive v Cussons (1993) 118 ALR 248, considered

Oshlack v Richmond River Council (1998) 193 CLR 72, considered

Lucas v Hillier and Carny (1999) SASC 128, considered

Applicant:Maevida Horman

Respondent:  Distribution Group Limited

File No:SZ 71 of 2001

Delivered on:  27 July 2001

Delivered at:  Sydney

Hearing Date:  4, 5, 6 June 2001, 18 July 2001

Judgment of:  Raphael FM

REPRESENTATION:

Counsel for the Applicant:             Ms Erin Glover

Solicitors for the Applicant:           Mr Robert Stephen

Counsel for the Respondent:     Mr Stephen Rushton SC

Solicitors for the Respondent:      Katrina Morris of Freehills

ORDERS

1. Claim under s.28A of the Sex Discrimination Act 1984 upheld in part.

2. Claim under s.14(2)(d) of the Sex Discrimination Act 1984 upheld in part.

3. Claim under s.7(1)(b) and (c) of the Sex Discrimination Act 1984 dismissed.

4. Claim in respect of unlawful termination in breach of ss. 7 and 14 of the Sex Discrimination Act 1984 dismissed.

5. Claim under s.18C of the Racial Discrimination Act 1975 upheld in part.

6. The respondent to pay the applicant the sum of $12,500.00 by way of damages .

7. Each party to pay its own costs of the proceedings.

Note:  Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SZ 71 of 2001

MAEVIDA HORMAN

Applicant

And

DISTRIBUTION GROUP LIMITED

Respondent

REASONS FOR JUDGMENT

What is the nature of the dispute?

1. Between February and December 1997 the applicant worked for the respondent company at the Artarmon branch of its Repco Auto Parts business as a spare parts interpreter. She claims that during this time she was subjected to sexual discrimination in the form of unacceptable and inappropriate comments from her…