Mitchell v Clayton Utz (No 3)

[2010] NSWADT 100

CITATION:

Mitchell v Clayton Utz (No 3) [2010] NSWADT 100

DIVISION:

Equal Opportunity Division

PARTIES:

APPLICANT
Michael Mitchell

FIRST RESPONDENT
Clayton Utz

SECOND RESPONDENT
Garth Williams

THIRD RESPONDENT
Jamie Taylor

FOURTH RESPONDENT
Narelle Rutz

FILE NUMBER:

091046

HEARING DATES:

On the papers

SUBMISSIONS CLOSED:

9 March 2010

 
DATE OF DECISION: 

21 April 2010

BEFORE:

Hennessy N - Magistrate (Deputy President)

CATCHWORDS:

EQUAL OPPORTUNITY – application to amend complaint -

LEGISLATION CITED:

Anti-Discrimination Act 1977

CASES CITED:

Bernard v Manly Lawn Tennis Club Ltd [2006] NSWADT 174
Horne v Press Clough Joint Venture (1994) EOC 92-556
Elliott v Nanda (2001) 11 FCR 240
Molony v Golden Ponds Corporation Pty Ltd (1995) EOC 92-674
Dixon v RNJ Sicame Pty Ltd & anor; Sims v RNJ Sicame Pty Ltd [2002] NSWADT 154
Cooper v Human Rights Commission [1999] FCA 180

REPRESENTATION:

APPLICANT
In person

RESPONDENT
M Byrnes, special counsel

ORDERS:

Mr Mitchell’s application to amend his complaint to add complaints of a) ‘aiding and abetting’ against Mr Trevor Robinson and Ms Sonia Goumenis; and b) victimisation against Mr Grant Fuzi and Clayton Utzis refused.

Introduction

1 Mr Mitchell has applied to amend his complaints of discrimination and harassment against Clayton Utz and three of its employees, to add two additional complaints: Anti-Discrimination Act 1977 (AD Act), s 103. The complaints Mr Mitchell wishes to add are:

a) complaints of ‘aiding and abetting’ against Mr Trevor Robinson and Ms Sonia Goumenis; and
b) complaints of victimisation against Mr Grant Fuzi and Clayton Utz.

2 The respondents oppose that application. The issue before the Tribunal is whether it should exercise its discretion to amend the complaint in the manner requested by Mr Mitchell. I have decided not to do so.

Background

3 In mid June 2007, Mr Mitchell began working as a solicitor at Clayton Utz. His employment was terminated six weeks later for engaging in sexually harassing conduct. Mr Mitchell told fellow employees that he had changed into sports clothes underneath a trench coat in his office. He says that he was then subjected to harassing remarks and other conduct including being called ‘trench’ and ‘flasher’. Mr Mitchell says that he responded by asking two of his colleagues on separate occasions whether they were fantasizing about him in his trench coat. He says he only made those comments in response to the harassment directed towards him and to indicate that he was an ‘easy going’ person. Following complaints of sexual harassment against him, Mr Mitchell’s employment was terminated and he went back to live in Canada.

4 Mr Mitchell has been diagnosed as ‘bipolar’ and says that the real reason for being dismissed was that he resisted providing detailed information about his medical condition. He met twice with Ms Rutz, the Occupational Health and Safety Advisor at Clayton Utz, and says that she asked him personal and probing questions about his medical history and the medication he was taking. He also says that she asked those questions aggressively and that, contrary to…