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Lee v Smith

Lee v Smith

Case [2007] FMCA 59 23 March 2007

Vicarious Liability

Sexual Harassment

Sex Discrimination

Unlawful Discrimination

Victimisation

Human Rights Law

Employment & Labour Law

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

LEE v SMITH & ORS

[2007] FMCA 59

HUMAN RIGHTS – Discrimination Law – sexual harassment – sex discrimination – victimisation – pornography in the workplace – rape – employment – sexual harassment by fellow employee – whether employer vicariously liable – whether harassment ‘in connection with employment’ – whether employer unlawfully victimised applicant due to her making a complaint of sexual harassment.

Human Rights and Equal Opportunity Commission Act 1986 (Cth) ss.3, 46PO (1),(4), 46PR
Sex Discrimination Act 1984 (Cth), ss.28 (A), 28B, 14, 5, 9(4), 94, 106

Chief Constable of the Lincolnshire Police v Stubbs [1999] IRLR 81
Leslie v Graham [2002] FCA 32
Smith v Christchurch Press Company Ltd [2001] 1 NZLR 407
South Pacific Resort Hotels Pty Ltd v Trainor [2005] FCAFC 130
Waters v The Public Transport Corporation (1991) 173 CLR 349
X v State of Tasmania [1994] HREOCA 15 (8 July 1994)

Applicant:

CASSANDRA LEKEI LEE

First Respondent:

AUSTIN SMITH

Second Respondent:

RODERICK HOMER

Third Respondent:

BERNARD DONCHI

Fourth Respondent:

COMMONWEALTH OF AUSTRALIA (DEPARTMENT OF DEFENCE)

File Number:

BRG 204 of 2004

Judgment of:

Connolly FM

Hearing date:

14 November 2006

Date of Provision for Last Submission:

12 December 2006

Delivered at:

Darwin

Delivered on:

23 March 2007

REPRESENTATION

Counsel for the Applicant:

Mr Henry SC

Solicitors for the Applicant:

Whettanhall Silva Solicitors

Counsel for the First Respondent:

Mr Murphy SC

Solicitors for the First Respondent:

Carew Solicitors

Counsel for the Second, Third and Fourth Respondents:

Mr Horneman-Wren

Solicitors for the Second, Third and Fourth Respondents:

Blake Dawson Waldron

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
CAIRNS

BRG 204 of 2004

CASSANDRA LEKEI LEE

Applicant

And

AUSTIN SMITH

First Respondent

RODERICK HOMER

Second Respondent

BERNARD DONCHI

Third Respondent

COMMONWEALTH OF AUSTRALIA (DEPARTMENT OF DEFENCE)

Fourth Respondent

REASONS FOR JUDGMENT

Proceedings

This judgment arises from a complaint to the Human Rights and Equal Opportunity Commission which was terminated by the President pursuant to s.46PO(1) of the Human Rights and Equal Opportunity Commission Act1986 (Cth) on the basis that there was no reasonable prospect of the matter being settled by conciliation. The application is made pursuant to s.46PO to the Federal Magistrates Court of Australia alleging unlawful discrimination.
The Applicant was employed in an administrative position at the Patrol Boat Landing Class Logistics Office in Portsmith, Cairns. Members of both the Navy and the civilian Department of Defence employees worked in that office. The Navy and the Department of Defence are each entities of the Commonwealth of Australia which is the Fourth Respondent. The First, Second and Third Respondents referred to as Smith, Homer and Donchi all worked in the office.
The substance of the Applicant’s claim is set out in the Points of Claim filed by the Applicant on 30 June 2004. Points of Defence were filed by the Second, Third and Fourth Respondents on 26 July 2004 and by the First Respondent on 14 September 2004.
The application was supported by the following affidavits:
i)the affidavit of Cassandra Lee…

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 Lee v Smith

Details

AGLC: Lee v Smith [2007] FMCA 59
Case: [2007] FMCA 59
Decision Date: 23 March 2007

CaseChat Overview and Summary

In Lee v Smith, Cassandra Lee sued Austin Smith, Roderick Homer, Bernard Donchi, and the Commonwealth of Australia (Department of Defence) for unlawful discrimination, including sexual harassment and victimisation, occurring in the workplace. The Federal Magistrates Court found that the Respondents were liable for the sexual harassment and victimisation Lee suffered. The Court found that pornography in the workplace and the Respondents' failure to prevent it constituted sexual harassment and sex discrimination. Lee also alleged that Smith sexually harassed her during and after a computer course, culminating in a rape at an employee's home. The Court held that the rape occurred in connection with Smith's employment, making the Commonwealth vicariously liable. Furthermore, the Court found that Homer and Donchi victimised Lee after she reported Smith's conduct, which the Commonwealth was also liable for under the principles of vicarious liability. The Court awarded Lee $100,000 in compensation for the pain, suffering, hurt, and humiliation she experienced, with all Respondents jointly liable for the payment. The Court adjourned further hearings to address economic loss, superannuation, medical costs, apologies, interest, and costs.

Orders