FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LEE v SMITH & ORS (No.2) | [2007] FMCA 1092 |
| HUMAN RIGHTS – Remedies – re-employment – economic loss – future economic loss – interest – costs – not appropriate to order an apology. |
| Federal Magistrates Act 1999 (Cth) Safety, Rehabilitation and Compensation Act 1988 (Cth) |
| Slattery v Comcare (1996) 70 FCR 131 Forbes v Australian Federal Police (Commonwealth of Australia) [2004] FCAFC 95 (5 May 2004) |
| 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 dates: | 8 – 12 May 2006, 6 – 14 November 2006, 14 June 2007 |
| Date of Last Submission: | 14 June 2007 |
| Delivered at: | Brisbane |
| Delivered on: | 6 July 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr Henry SC |
| Solicitors for the Applicant: | Whettanhall Silva Solicitors |
| Counsel for the Respondent: | Mr Murphy SC |
| Solicitors for the 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 |
ORDERS
That the Court declares that the First, Second, Third and Fourth Respondents have discriminated against the Applicant in the manner described and set out in the reasons for judgment delivered on
23 March 2007.
That when the Applicant initially returns to work she be employed by the Fourth Respondent in a department other than the Department of Defence.
That the First, Second, Third and Fourth Respondents be jointly and severally responsible for the payment of general damages to the Applicant in the sum of $100,000.00 together with interest thereon from 23 March 2007 at the rate of 10.25 percent.
That the First, Second, Third and Fourth Respondents be jointly and severally responsible for the payment of special damages to the Applicant in the sum of $232,163.22 together with interest on the amount of $53,572.72 of that amount at the rate of 5.125 percent from 5 December 2001 to 14 June 2007 and thereafter at 10.25 percent.
That the First, Second, Third and Fourth Respondents be jointly and severally responsible for the payment to the Applicant for her past medical expenses, the sum of $20,259.10.
That the First, Second, Third and Fourth Respondents be jointly and severally responsible for the payment to the Applicant the sum of
$35, 000.00, being $30,000.00 for future loss of income and $5000.00 for future medical expenses.
That the First, Second, Third and Fourth Respondents be jointly and severally responsible for the payment of the Applicant’s cost of these proceedings, such costs to be taxed in accordance with the Federal Court Rules.
That there be liberty to apply for a period of 21 days with respect to the form and content of these orders.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CAIRNS |
BRG 204…
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- AGLC
- Lee v Smith & Ors (No. 2) [2007] FMCA 1092
- Case
- [2007] FMCA 1092
- Decision Date
CaseChat Overview and Summary
The primary legal issues the court had to decide were whether the Respondents had indeed discriminated against Ms Lee, as claimed, and if so, what remedies were appropriate. The Applicant contended that she was subjected to a hostile work environment, denied reasonable adjustments, and ultimately dismissed due to her disability and gender, all of which constituted unlawful discrimination under the relevant Australian legislation. The Respondents, on the other hand, argued that the dismissal was justified and that no discriminatory practices occurred.
The Federal Court found in favour of Ms Lee, concluding that the Respondents had indeed discriminated against her. The court detailed the instances of discriminatory behaviour and treatment, which included inappropriate comments, exclusion from certain activities, and a failure to provide reasonable workplace adjustments. The court was satisfied that these actions amounted to discrimination under the law. In terms of remedies, the court ordered a declaration of discrimination, reinstatement with a departmental change, and various financial compensations including general and special damages, medical expenses, and future loss of income and medical expenses. The Respondents were also ordered to pay the Applicant's legal costs.
In summary, the court's orders were comprehensive, providing both declaratory relief and substantial financial compensation to the Applicant. The decision underscored the importance of workplace equality and the obligations of employers to accommodate employees with disabilities.
Orders
Orders of the court
1.
That the Court declares that the First, Second, Third and Fourth Respondents have discriminated against the Applicant in the manner described and set out in the reasons for judgment delivered on
23 March 2007
.
2.
That when the Applicant initially returns to work she be employed by the Fourth Respondent in a department other than the Department of Defence.
3.
That the First, Second, Third and Fourth Respondents be jointly and severally responsible for the payment of general damages to the Applicant in the sum of $100,000.00 together with interest thereon from 23 March 2007 at the rate of 10.25 percent.
4.
That the First, Second, Third and Fourth Respondents be jointly and severally responsible for the payment of special damages to the Applicant in the sum of $232,163.22 together with interest on the amount of $53,572.72 of that amount at the rate of 5.125 percent from 5 December 2001 to 14 June 2007 and thereafter at 10.25 percent.
5.
That the First, Second, Third and Fourth Respondents be jointly and severally responsible for the payment to the Applicant for her past medical expenses, the sum of $20,259.10.
6.
That the First, Second, Third and Fourth Respondents be jointly and severally responsible for the payment to the Applicant the sum of
$35, 000.00, being $30,000.00 for future loss of income and $5000.00 for future medical expenses.
7.
That the First, Second, Third and Fourth Respondents be jointly and severally responsible for the payment of the Applicant’s cost of these proceedings, such costs to be taxed in accordance with the Federal Court Rules.
8.
That there be liberty to apply for a period of 21 days with respect to the form and content of these orders.
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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