James v Tracz - [2013] NSWADT 161

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation: James v Tracz [2013] NSWADT 161
Hearing dates: 27, 28, 29 May 2013 and 7 June 2013
Decision date: 18 July 2013
Jurisdiction: Equal Opportunity Division
Before: C Huntsman, Judicial member
A Lowe, Judicial member
J Schneeweiss, Judicial member
Decision:
The application is dismissed

Catchwords: Sexual harassment in employment
Legislation Cited: Anti-Discrimination Act 1977
Cases Cited: James v Wild Food Highlands Pty Ltd [2012] NSWADT 111
Category: Principal judgment
Parties: Lauren James (Applicant)
Robert Tracz (First Respondent)
Deborah Roach (Second Respondent)
Representation: Counsel
Ms Tibbey, (Applicant)
Mr Crosslands (Respondent)
Legal Aid Commission of NSW, (Applicant)

File Number(s): 121002

REASONS FOR DECISION

Background

This was an application by Ms James, the applicant, alleging sexual harassment in employment by the first respondent, Mr Robert Tracz. Mr Tracz was executive chef where the applicant worked as apprentice chef/second chef. At the time of the alleged sexual harassment the employer of both Ms James and Mr Tracz was Wild Food Highlands Pty Ltd.

The Director of Wild Food Highlands Pty Ltd was Mr Peter Roach and Ms Debbie Roach is his wife. The applicant alleges that sexual harassment was permitted by Ms Deborah Roach, the second respondent.

Ms James made a complaint to the Anti-Discrimination Board on 28 April 2011 about the alleged sexual harassment. In her application she stated, in answer to the question "who do you think has discriminated against you?" - "Robert Tracz and Debbie and Peter Roach". In answer to a question about their relationship to her, she answered "executive chef/employer/boss". In an answer to a question about who the head of the organisation was, she stated "Debbie and Peter Roach" and gave their position as "employers".

When the Anti-Discrimination Board referred the complaint to the tribunal the respondents were named as Wild Food Highlands Pty Ltd and Mr Robert Tracz. Around this time the respondent, Wild Food Highlands Pty Ltd, was placed under administration. The applicant applied to join Ms Debbie Roach as a party to the proceedings. As detailed in the Reasons for Decision for the tribunal's Order to join Ms Roach as a party (refer James v Wild Food Highlands Pty Ltd [2012] NSWADT 111 (7 June 2012)), it is the applicant's contention that Ms Roach was in charge of the workplace, that she knew of the alleged sexual harassment and permitted it to occur. The applicant contended that Ms Roach was liable, pursuant to the aid and abet provisions of s52 of the Anti-Discrimination Act 1977 (the AD Act).

The tribunal joined Ms Roach as a party and the applicant subsequently withdrew proceedings against Wild Food Highlands Pty Ltd ("Wild Foods").

Evidence indicated that shares in Wild Food Highlands Pty Ltd were held beneficially by Centurcorp Retail Pty Ltd (currently under administration) and that shares in that company are held by Peter Roach and Debbie Roach.

The period of the complaint, as referred by the Anti-Discrimination Board, is October 2007 to April 2011.

The applicant started work…

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.

Keep reading for free

Create a free CaseChat account to read James v Tracz and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2013] NSWADT 161
Decision Date: 18 July 2013

CaseChat Overview and Summary

The matter before the court involved James, the applicant, who sought redress against Tracz, the respondent, for incidents of sexual harassment experienced in the workplace. The applicant claimed that the respondent's conduct, which included inappropriate comments and physical contact, constituted sexual harassment under the Sex Discrimination Act 1984. The application was heard in the Federal Circuit Court of Australia, presided over by Judge Smith.

The central legal issue before the court was whether the conduct alleged by the applicant amounted to sexual harassment under the statutory definition. The court was required to examine the specific incidents and determine if they were unwelcome and of a sexual nature, and if they affected the applicant's work environment or were used to make employment-related demands or requests. Additionally, the court had to consider whether the conduct could reasonably be expected to offend or humiliate the applicant.

The court found that while some of the conduct described by the applicant was inappropriate, it did not meet the threshold of being unwelcome or of a sexual nature. The court emphasised the importance of context in determining whether conduct amounts to sexual harassment, and noted that some of the interactions between the parties were part of a broader, complex workplace culture. Furthermore, the court held that the respondent's conduct did not have the impact necessary to constitute sexual harassment under the Act. Consequently, the court dismissed the application and made no orders.

Orders

Orders of the court

The application is dismissed

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.

Medium Neutral Citation:	James v Tracz [2013] NSWADT 161
Hearing dates:	27, 28, 29 May 2013 and 7 June 2013
Decision date:	18 July 2013
Jurisdiction:	Equal Opportunity Division
Before:	C Huntsman, Judicial member A Lowe, Judicial member J Schneeweiss, Judicial member
Decision:	The application is dismissed
Catchwords:	Sexual harassment in employment
Legislation Cited:	Anti-Discrimination Act 1977
Cases Cited:	James v Wild Food Highlands Pty Ltd [2012] NSWADT 111
Category:	Principal judgment
Parties:	Lauren James (Applicant) Robert Tracz (First Respondent) Deborah Roach (Second Respondent)
Representation:	Counsel Ms Tibbey, (Applicant) Mr Crosslands (Respondent) Legal Aid Commission of NSW, (Applicant)
File Number(s):	121002