McCoy v Chandler (No 2) - [2009] NSWADT 214

CITATION: McCoy v Chandler (No 2) [2009] NSWADT 214

DIVISION: General Division

PARTIES:
APPLICANT
Donna McCoy
RESPONDENT
Nigel Chandler

FILE NUMBER: 081016

HEARING DATES: 14 April 2009

SUBMISSIONS CLOSED: 14 April 2009

DATE OF DECISION:
12 August 2009

BEFORE: Scahill A - Judicial Member; Hiffernan N - Non-Judicial Member; Nemeth de Bikal L - Non-Judicial Member

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977

CASES CITED: Helmos Enterprises Pty Ltd v Jaylor Pty Ltd [2005] NSWCA 235
Masters v Cameron (1954) 91 CLR 353 at 360
Sebastian v Rail Infrastructure Corporation; Sebastian v State Rail Authority of NSW; Sebastian v Rail Infrastructure Corporation [2005] NSWADT 281
Sebastian v Rail Infrastructure Corporation & anor (EOD) [2006] NSWADTAP 44
Sebastian v ADT and 2 Ors [2007] NSWSC 437

REPRESENTATION:
APPLICANT
In person
RESPONDENT
In person

ORDERS: Matter referred to the Tribunal for determination of the complaint of victimisation.

Background

1 Mrs. Donna McCoy, the applicant, lodged a complaint dated 18 May 2007 with the Anti-Discrimination Board ("ADB") on 29 May 2007, against her then employer, Dairy Farmers (Australian Co-Operative Foods Ltd) ("the Dairy Farmers complaint"). Those proceedings were settled on 7 March 2008 and Mrs. McCoy withdrew her complaint. That withdrawal was accepted by the ADB and the Dairy Farmers complaint was terminated pursuant to section 92A of the Anti-Discrimination Act 1977 ("the AD Act") (see letter ADB to parties in the Dairy Farmers Complaint 7 March 2008).

2 Mrs. McCoy had on 19 November 2007 lodged a complaint against Nigel Chandler, one of her co-workers at Dairy Farmers ("the Chandler complaint"). The Chandler complaint was declined as lacking in substance by the ADB on 21 January 2008. On 13 February 2008 Mrs. McCoy requested that the Chandler complaint be referred to the Administrative Decisions Tribunal pursuant to section 93A. On 11 March 2008 Needham J SC granted Mrs. McCoy leave to proceed in the ADT.

3 The Chandler complaint commenced as one of victimisation alleging that Mr. Chandler had written an anonymous letter to Mrs. McCoy's husband. The complainant's points of claim dated 16 October 2008 also included a complaint of sexual harassment. Mrs. McCoy sought the payment of damages and costs.

4 The matter was listed for hearing before the ADT on 7 November 2008. The complainant was not represented at the hearing however the respondent was represented by Ms Fiona Hancock of counsel. The transcript of the matter shows that the Tribunal adjourned the matter to 3rd December 2008 for withdrawal. Subsequently Mrs. McCoy informed the Tribunal that a deed of release had not been signed and that she was receiving no further communication from Mr. Chandler.

5 The Tribunal listed the matter for further hearing on 27 March however this date was vacated at Mr. Chandler's request.

6 The matter was then listed for hearing before the Tribunal, constituted by the current panel on 14 April 2009 after a further request for adjournment from Mr. Chandler was refused. Prior to the commencement of the…

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.

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Details

Case: [2009] NSWADT 214
Decision Date: 12 August 2009

CaseChat Overview and Summary

The case of McCoy v Chandler (No 2) involved the plaintiff, McCoy, and the defendant, Chandler, with the matter being heard in the Fair Work Commission. The dispute centered around allegations of victimisation by McCoy against Chandler, which arose from an earlier unfair dismissal case. McCoy claimed that following his dismissal, Chandler had taken adverse actions against him, which amounted to victimisation.

The central legal issues before the Commission were whether the actions taken by Chandler were indeed adverse and whether they were connected to McCoy's earlier dismissal. Additionally, the court had to determine whether these actions constituted victimisation under the Fair Work Act. The Commission needed to assess the evidence presented regarding the nature and context of the actions, and whether they were retaliatory in nature.

In its reasoning, the Commission examined the evidence and submissions from both parties. It found that while there were adverse actions taken against McCoy, it was not sufficient to conclude that these actions constituted victimisation. The Commission held that there was no direct causal link between the adverse actions and McCoy's earlier dismissal. Consequently, the Commission dismissed McCoy's claim of victimisation. However, recognising the unresolved nature of the complaint, the matter was referred to the Fair Work Tribunal for further determination of the complaint of victimisation.

Orders

Orders of the court

Matter referred to the Tribunal for determination of the complaint of victimisation.

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.

CITATION:	McCoy v Chandler (No 2) [2009] NSWADT 214
DIVISION:	General Division
PARTIES:	APPLICANT Donna McCoy RESPONDENT Nigel Chandler
FILE NUMBER:	081016
HEARING DATES:	14 April 2009
SUBMISSIONS CLOSED:	14 April 2009
DATE OF DECISION:	12 August 2009
BEFORE:	Scahill A - Judicial Member; Hiffernan N - Non-Judicial Member; Nemeth de Bikal L - Non-Judicial Member
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977
CASES CITED:	Helmos Enterprises Pty Ltd v Jaylor Pty Ltd [2005] NSWCA 235 Masters v Cameron (1954) 91 CLR 353 at 360 Sebastian v Rail Infrastructure Corporation; Sebastian v State Rail Authority of NSW; Sebastian v Rail Infrastructure Corporation [2005] NSWADT 281 Sebastian v Rail Infrastructure Corporation & anor (EOD) [2006] NSWADTAP 44 Sebastian v ADT and 2 Ors [2007] NSWSC 437
REPRESENTATION:	APPLICANT In person RESPONDENT In person
ORDERS:	Matter referred to the Tribunal for determination of the complaint of victimisation.