Mitchell v Clayton Utz & Ors
[2009] NSWADT 266
•13 October 2009
CITATION: Mitchell v Clayton Utz & Ors [2009] NSWADT 266
This decision has been amended. Please see the end of the decision for a list of the amendments.DIVISION: Equal Opportunity Division PARTIES: APPLICANT
Michael MitchellFIRST RESPONDENT
Clayton UtzSECOND RESPONDENT
Garth WilliamsTHIRD RESPONDENT
Jamie TaylorFOURTH RESPONDENT
Sonia GoumenisFIFTH RESPONDENT
Katie BestSIXTH RESPONDENT
Trevor RobinsonSEVENTH RESPONDENT
EIGHTH RESPONDENT
Joseph Catanzariti
Narelle RutzFILE NUMBER: 091046 HEARING DATES: 14 July 2009 SUBMISSIONS CLOSED: 14 July 2009
DATE OF DECISION:
13 October 2009BEFORE: Hennessy N - Magistrate (Deputy President) CATCHWORDS: Disability discrimination - meaning of detriment – sexual harassment – victimisation complaints – leave to proceed with complaints - test to apply - fairness and justice – strength and credibility of claims LEGISLATION CITED: Anti-Discrimination Act 1977 CASES CITED: Xu v Sydney West Area Health Service [2006] NSWADT 3 Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143
Donohoe v The Trustees of the Christian Brothers [2008] NSWADT 51
Spellson v George (1992) 26 NSWLR 666
O’Callaghan v Loder [1983] 3 NSWLR 89; (1984) EOC 92-023
Ministry of Defence v Jeremiah [1980] QB 87
Leonard v Youth Hostels Association of Victoria (1995) EOC 92-763
Sivananthan v Commissioner of Police, NSW Police Service [2001] NSWADT 44
Blackadder v Ramsey Butchering Services Pty Ltd (2002) 118 FCR 395
Varas v Fairfield City Council [2008] FMCA 996
Varas v Fairfield City Council [2009] FCA 689
Damiano v Wilkinson [2004] FMCA 891
Penhall-Jones v New South Wales [2007] FCA 925
Penhall-Jones v New South Wales [2006] FMCA 927
Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13
Bhattacharya v Department of Public Works (1984) EOC 92-117
Shaikh v Commissioner, NSW Fire Brigades (1996) EOC 92–808
Borg v Commissioner, Department of Corrective Services & Anor [2002] NSWADT 42
Waters v Public Transport Corporation (1991–92) 173 CLR 349
Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165 Waterhouse v Bell (1991) 25 NSWLR 99REPRESENTATION: APPLICANT
RESPONDENT
In person (by phone)
K Eastman, counselORDERS: 1. Leave is granted for the following complaints or parts of complaints to proceed:a) the complaint of disability discrimination against Clayton Utz relating to Ms Rutz’ questioning of Mr Mitchell in meetings on 22 June 2007 and 19 July 2007 so far as those questions relate to Mr Mitchell’s medical history and medical treatment; b) the complaint of disability discrimination against Clayton Utz relating to the non-attendance of a third party at a meeting with Ms Rutz on 19 July 2007; c) the complaints of sexual harassment against Mr Williams and Mr Taylor personally and against Clayton Utz as their employer in relation to the alleged conduct except for the allegations that Mr Williams or Mr Taylor called Mr Mitchell ‘trench’ or ‘trench coat’and the comment alleged to have been made by Mr Williams that 'solicitors could take paralegals home for sex'; and d) the complaints of victimisation against Ms Rutz and against Clayton Utz as her employer.
2. Leave is refused for the following complaints or parts of complaints to proceed:a) the complaint of disability discrimination against Clayton Utz relating to Ms Rutz’ questioning of Mr Mitchell in meetings on 22 June 2007 and 19 July 2007 so far as those questions relate to Mr Mitchell’s fitness to perform his duties; b) the complaint of disability discrimination against Clayton Utz relating to the termination of his employment; c) the complaints of sexual harassment against Ms Goumenis, Ms Best and Mr Robinson;d) the complaint of sex discrimination against Clayton Utz; and e) the complaint of victimisation against Mr Catanzariti.
REASONS FOR DECISION
Introduction
1 In mid June 2007, Mr Mitchell commenced employment as a solicitor at Clayton Utz. His employment was terminated six weeks later for engaging in sexually harassing conduct. 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 their agreement, she did not arrange for a third person to be present at the second meeting.
2 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 that comment in response to the harassment directed towards him and to indicate that he was an ‘easy going’ person. After leaving the firm Mr Mitchell emailed Ms Keeling, an employee of Clayton Utz, telling her that he intended to make a complaint of discrimination and harassment to the former Human Rights and Equal Opportunity Commission (HREOC). He asked that she keep him informed of her current address. Two months later, Mr Mitchell emailed Ms Keeling again, thinking that she was about to leave Clayton Utz. Mr Mitchell alleges that an email written by a partner of Clayton Utz, Mr Catanzariti, in response to the second email constitutes victimisation.
Complaints to Anti-Discrimination Board
3 Mr Mitchell withdrew the complaints of sexual harassment he had lodged with HREOC and, a year after his employment had been terminated, made several complaints to the Anti-Discrimination Board (the Board) under the Anti-Discrimination Act 1977 (AD Act). Following investigation, the President declined the following complaints as lacking in substance:
(1) disability discrimination against Clayton Utz;
- (2) sexual harassment against employees of Clayton Utz: Mr Williams, Mr Taylor, Ms Best, Ms Goumenis and Mr Robinson;
- (3) sex discrimination against Clayton Utz; and
- (4) victimisation against Clayton Utz, Mr Catanzariti and Ms Rutz.
4 The President has referred these complaints to the Tribunal at Mr Mitchell’s request. The Tribunal’s permission (‘leave’) is required before the complaints can proceed: AD Act, s 96(1). The Respondents submitted that leave should be refused.
5 Mr Mitchell participated in the leave hearing by phone and said he was relying on his oral submissions rather than the written submissions he had filed. Where his oral submissions conflict with his written submissions I have relied on his oral submissions.
Relevant principles for determining whether to grant leave
6 Until recently, on an application for leave to proceed, the Tribunal applied a test developed in Xu v Sydney West Area Health Service [2006] NSWADT 3. The 'substantial ground' aspect of that test was criticized by Schmidt AJ in Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143. The decision is on appeal to the Court of Appeal. In Ekermawi Schmidt AJ emphasised that leave applications should be determined on the basis of fairness and justice and went on to say that:
Whatever the contest between the parties might be, the question of leave must be determined having in mind the purposes of the Act, which includes precluding unlawful discrimination and to permit those who have been so discriminated against, a remedy. Given that the legislation does not require all complaints to be investigated and dealt with, this means that while on the one hand, an obviously meritorious complaint will not be refused leave, where, for example on the other, it is apparent that the complaint lacks substance, or where the complaint is already being redressed elsewhere, leave may be refused, if that is what justice dictates.
7 Mr Mitchell cited a previous decision of the Tribunal in Donohoe v The Trustees of the Christian Brothers [2008] NSWADT 51 where the Tribunal said, at [21], that:
It is not generally appropriate for the Tribunal to refuse leave where there is a serious question of fact to be determined or where a serious question of credit is involved: Spellson v George (1992) 26 NSWLR 666. It is not the Tribunal’s role at this stage of the proceedings to determine whether or not the complaint is substantiated.
8 It is correct that it is not the Tribunal’s role when determining a leave application to decide whether or not the complaint has been substantiated. However, the merits of the complaint are relevant. In particular, if a complaint lacks substance, that may be sufficient justification for leave to be refused. The principles applicable to summary dismissal, such as those set out in Spellson v George, do not govern the Tribunal’s discretion to grant or refuse leave under s 96. Whether there is a serious question of fact to be determined or a serious question of credit involved, are matters which are relevant, but not necessarily determinative. It is not a requirement, for example, to accept everything that an applicant says when determining whether to grant leave. The strength and credibility of both versions of events may be relevant. In all cases, the touchstone is fairness and justice.
Disability discrimination complaints
9 Mr Mitchell contends that there are two distinct but related complaints of disability discrimination. The two complaints relate to:
(a) two meetings with Ms Rutz on 22 June 2007 and 19 July 2007; and
(b) the termination of his employment.
10 First meeting. On 22 June 2007, a day after visiting St Vincent's Hospital, Mr Mitchell returned to work and attended a meeting with Narelle Rutz, the Occupational Health and Safety Adviser. According to Ms Rutz, that meeting was necessary because Clayton Utz has a duty of care to ensure that the workplace is safe. She says that the intention of the meeting was to verify that Mr Mitchell was able to return to work and to review any certified restrictions. During that meeting Ms Rutz agrees that she asked him to obtain a medical certificate stating that he was fit for work. Mr Mitchell says that she also asked him for details about his medical condition, his medical history and the medication he was taking. He was reluctant to provide that information but says that Ms Rutz insisted. During the meeting Mr Mitchell disclosed details of his previous history of mental illness and gave an account of the circumstances leading up to him attending hospital. Ms Rutz denies that she asked Mr Mitchell for information about his medical history and says that Mr Mitchell volunteered that information. At the end of the meeting, Mr Mitchell says he told Ms Rutz that he did not want to meet with her again because of the aggressive manner in which she had questioned him. Ultimately they agreed that a third party, Ms Claire Keeling, would be present at the next meeting.
11 Second meeting. At the meeting on 19 July 2007, Mr Mitchell say that Ms Keeling did not attend but that he did not object because he was fearful that his employment may be at risk. He says that during this meeting Ms Rutz asked him whether he was taking medication and what his future plans were in relation to medication. Mr Mitchell’s complaint about the second meeting was that as well as asking further probing and personal questions, Ms Rutz did not honour their agreement that a third party would attend. Ms Rutz’ response is that Mr Mitchell was aware that Ms Keeling would not be attending the second meeting but agreed to participate.
12 On 24 July, Mr Mitchell submitted a certificate from his doctor saying that:
To whom it may concern
Michael Mitchell attended St Vincent’s hospital today for follow up of the condition he was treated for three weeks ago in hospital on June 20th. There are no medication issues that you need to be aware of and Michael is well enough to work full time in my medical opinion. Mr Mitchell will receive continuing treatment through a GP who I have referred him to see.
13 Termination. Mr Mitchell initially complained that his employment had been terminated on the ground of his disability. In his written submissions, Mr Mitchell said that the inference that he was terminated on the ground of disability arises from two sources. The first was that Clayton Utz did not investigate the allegations of sexual harassment against him appropriately suggesting that those allegations were not the real reason for his termination. The second was that the certificate from his doctor was designed to get Clayton Utz to ‘back off from their aggressive questioning’. At the hearing Mr Mitchell said that it was not the disability itself that led to his termination but his continuing refusal to provide information about his medical condition. Clayton Utz’ version of events is that very serious allegations of sexual harassment were made against Mr Mitchell which were being investigated and that Mr Mitchell was given sufficient particulars to respond to those allegations. His disability was not a reason for the termination of his employment.
Legal requirements for disability discrimination
14 In order to substantiate a complaint of disability discrimination, Mr Mitchell would have to prove that:
1. he has a disability as defined in s 4 and s 49A;
2. his employer dismissed him and subjected him to a detriment as required by s 49D(2)(c) and (d);
3. in the same circumstances, or in circumstances which are not materially different, a person without his disability would not have been dismissed or subjected to a detriment ( differential treatment ): s 49B(1)(a);
4. at least one of the reasons for being dismissed and subjected to a detriment was his disability ( causation ): s 49B(1)(a) and s 4A.
Disability
15 Disability is defined in s 4 to include the partial loss of a person’s mental functions and in s 49A to include a reference to a disability that the person is ‘thought to have whether or not the person in facts has the disability’. Mr Mitchell claims he has a disability, or an imputed disability, for the purpose of the AD Act. He says he was diagnosed as having experienced a brief psychotic episode and as being bipolar. If that evidence is accepted it is likely that Mr Mitchell would be able to establish that he has a disability within the meaning of that term in the AD Act.
Termination and detriment
16 Relevant provisions. Section s 49D(2)(c) and (d) provide that:
(2) It is unlawful for an employer to discriminate against an employee on the ground of disability:
. . .
(c) by dismissing the employee or
(d) by subjecting the employee to any other detriment.
Termination of employment is conduct which is subject to the AD Act. Whether the treatment Mr Mitchell says he was afforded by Ms Rutz amounts to a ‘detriment’ depends on the circumstances.
17 Meetings with Ms Rutz. The detriment to which Mr Mitchell says he was subjected was being asked personal and probing questions about his medical history in an aggressive manner. Mr Mitchell also complained about the absence of a third party from the second meeting.
18 Asking questions. Mr Mitchell initially relied on s 30 of the Disability Discrimination Act 1992 (Cth) (DD Act) to argue that the asking of certain questions is unlawful and would constitute a detriment under the AD Act. The provision to which Mr Mitchell refers is s 30 of the DD Act which states that:
If, because of another provision of this Part (other than section 32), it would be unlawful, in particular circumstances, for a person to discriminate against another person on the ground of the other person's disability, in doing a particular act, it is unlawful for the first-mentioned person to request or require the other person to provide, in connection with or for the purposes of the doing of the act, information (whether by completing a form or otherwise) that persons who do not have a disability would not, in circumstances that are the same or are not materially different, be requested or required to provide.
19 Mr Mitchell now understands that there is no equivalent provision in the AD Act and that the asking of the kind of questions described in s 30 of the DD Act is not unlawful under the AD Act. In addition, the existence of s 30 does not necessarily mean that such questioning amounts to a detriment under the AD Act.
20 Meaning of ‘detriment’. In O’Callaghanv Loder [1983] 3 NSWLR 89; (1984) EOC 92-023 the Tribunal discussed the meaning of the phrase ‘subjecting ... to any other detriment’ in s 25(2)(c) of the AD Act. Mathews DCJ, as her Honour then was, considered that the Tribunal should adopt the meaning ascribed to the word ‘detriment’ by Brandon LJ in Ministry of Defence v Jeremiah [1980] QB 87 at 99 where his Lordship said:
I do not regard the expression “subjecting ... to any other detriment” ... as meaning anything more than ‘putting under a disadvantage’.
21 However, Mathews DCJ said in O’Callaghan at 105 that, ‘The disadvantage must be a matter of substance; the legislation [referring to s 25(2)(c) of the Anti-Discrimination Act] is not directed to trivial distinctions in the treatment afforded to men and women. Subject to that, it is difficult to define the limits of a concept which is ... essentially a matter of fact to be determined in each individual case.’ The test is an objective one. It is not sufficient for an employee to subjectively believe that he or she has been subjected to a detriment: Leonard v Youth Hostels Association of Victoria (1995) EOC 92-763 at p 78,651; Sivananthan v Commissioner of Police, NSW Police Service [2001] NSWADT 44 at [41].
22 Fitness to undertake duties. The Federal Court has accepted that an employer may require an employee to furnish medical evidence of the employee's continuing fitness to undertake duties, and to attend a medical examination to confirm his or her fitness. In the context of the Workplace Relations Act 1996, Madgwick J held in Blackadder v Ramsey Butchering Services Pty Ltd (2002) 118 FCR 395 at [67] – [68] that:
68 It is, in my opinion, essential for compliance with the above duties, that an employer be able, where necessary, to require an employee to furnish particulars and/or medical evidence affirming the employee's continuing fitness to undertake duties. Likewise, an employer should, where there is a genuine indication of a need for it, also be able to require an employee, on reasonable terms, to attend a medical examination to confirm his or her fitness.67 An employer has . . . strict obligations under the NSW legislation to ensure the safety and well-being of its employees. The importance of occupational health and safety is also reflected in the Act. Whilst an AWA, in general, prevails over conditions of employment specified in State laws to the extent of any inconsistency, provisions which relate to certain matters, such as occupational health and safety, operate subject to any relevant State law (see s 170VR(2) of the Act).
23 It has been held that a request to attend a medical appointment does not constitute a 'detriment' for the purpose of s 15 of the DD Act. In Varas v Fairfield City Council [2008] FMCA 996 at [105], Federal Magistrate Driver said:
. . .The Council had serious and well founded concerns about the behaviour of Ms Varas. Those concerns were confirmed by two psychologists, Ms Nolan and Mr Luiker. In addition, Ms Varas’ use of sick leave was a concern. A reliable psychiatric assessment was reasonably required for the Council to decide upon further action. I find, on this basis, that although the Council’s directions for Ms Varas to attend Dr Korner were because the Council had imputed to her a histrionic personality disorder (and hypochondriasis) the requests were reasonable in the circumstances and did not constitute a detriment for the purposes of the DDA.
That finding was not disturbed on appeal: Varas v Fairfield City Council [2009] FCA 689.
Tone or manner. In Damiano v Wilkinson [2004] FMCA 891 at [24], Baumann FM held that being shouted at on the phone was a trivial matter and did not come within the meaning of a detriment in relation to the victimisation provision under the DD Act. In Penhall-Jones v New South Wales [2006] FMCA 927, Driver FM held that verbal abuse at work may constitute a detriment under the DD Act.
24 Relevant factors. Based on these authorities, when determining whether questioning an employee constitutes a detriment, at least three factors are relevant:
a) the purpose for asking the questions including whether the questions are directed to some lawful purpose such as ensuring the safety and well-being of employees; and
b) the context in which the questions are asked including the position of the person asking the questions; and
c) the manner in which the questions are asked.
25 Questioning. I agree with Ms Rutz that it was lawful for her to ask Mr Mitchell questions about his continuing fitness to undertake his duties. Mr Mitchell does not object to the asking of those questions and leave for the complaint to proceed in relation to that matter is refused. There is a factual dispute about whether Ms Rutz asked Mr Mitchell questions about his medical history and medical treatment. For the purposes of these proceedings I have assumed that Ms Rutz asked the questions Mr Mitchell alleges that she asked. If those allegations are proved, that questioning may or may not be regarded as a ‘detriment’.
26 Absence of a third party from the second meeting. Mr Mitchell says he was expecting a third person to be present at the second meeting with Ms Rutz but that no-one else attended that meeting. It is arguable that that constitutes a detriment.
Differential treatment and causation
27 Meaning. The first component of the test for direct discrimination in s 49B(1)(a) is the ‘differential treatment’ test. The treatment afforded to Mr Mitchell must be compared with the treatment that would have been afforded to a person without his disability in the same or similar circumstances. In the absence of an actual employee whose treatment could be validly compared with the treatment given to Mr Mitchell, a Tribunal would have to rely on a hypothetical person in a comparable situation: Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13 per Mahoney JA at 19. The second component is ‘causation’. At least one of the reasons for being terminated or subjected to a detriment must be his disability (current or imputed). In Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92 although interpreting the words ‘because of’ rather than ‘on the ground of’, the majority of the High Court explained that the accepted test for causation in the context of anti-discrimination legislation is to ask why the aggrieved person was treated as they were. The focus is on the ‘true basis’ (per Gleeson CJ at 102), ‘genuine basis’ (Gleeson CJ at 102), or the ‘real reason’ (McHugh & Kirby JJ at 144) for that treatment. In a joint judgement with McHugh J, Kirby J rejected the ‘but for’ test which asks whether ‘but for’ the person’s disability the allegedly discriminatory conduct would not have occurred.
28 Questions about medical history and medical treatment. The alleged questions were about Mr Mitchell’s disability. While that fact is not determinative, it suggests that there is at least some relationship between Mr Mitchell’s disability and the questions. A Tribunal hearing the case would have to make findings of fact about matters including whether the questions were asked and the motivation for asking them. Until those findings are made it cannot be said that this aspect of the complaint lacks substance. Similarly, Mr Mitchell would have to prove both differential treatment and causation in relation to his allegation that he suffered a detriment because a third party did not attend the second meeting with Ms Rutz. Leave is granted for these aspects of Mr Mitchell’s complaint of disability discrimination to proceed.
29 Termination. Mr Mitchell was employed by Clayton Utz for six weeks. His employment was terminated on 30 July 2007. He made it clear at the hearing that his case was that he was terminated because he refused to answer or resisted answering ‘private’ and ‘probing’ questions about his medical condition and treatment after the first meeting with Ms Rutz. Mr Mitchell obtained a letter from his doctor saying that ‘there are no medication issues that you need to be aware of’. Mr Mitchell says that that letter was requested because of the questions he was being asked.
30 Conclusion. The AD Act does not make it unlawful for an employer to terminate an employee for refusing to answer questions regardless of the reason for asking those questions. To substantiate his complaint, the ‘real’, ‘genuine’ or ‘true’ reason for the termination must be his disability or imputed disability. It is not open for Mr Mitchell to submit that ‘but for’ his disability he would not have been terminated. The manner in which the complaints of sexual harassment were investigated does not assist Mr Mitchell to establish that his disability was a reason for his termination when he is not alleging that the termination was because of his disability. Consequently, the complaint of disability discrimination in relation to the termination of Mr Mitchell’s employment lacks substance and leave is refused for that part of his complaint to proceed.
Sexual harassment complaint
31 Mr Mitchell alleges that Mr Williams, Mr Taylor, Ms Goumenis, Ms Best and Mr Robinson, all employees of Clayton Utz, sexually harassed him.
32 With respect to Mr Williams, it is alleged that:
(a) In June 2007, Mr Williams informed Mr Mitchell that changing his clothes underneath a trench coat in his office would 'probably not be regarded well if management found out'.
Mr Williams agrees that he spoke to Mr Mitchell about the inappropriateness of getting changed in his office.
(b) After Mr Mitchell told Mr Williams that he changed his clothes underneath his overcoat, Mr Williams went to Mr Taylor's office and was laughing and looking at Mr Mitchell. He says they were making jokes about him 'articulating the association between trench coats and deviant and illegal sexual behaviour and referring to him as a ‘flasher’ and as ‘trench’.
Mr Williams denies these allegations.
(d) Mr Mitchell received emails sent between Mr Taylor, Mr Williams and Mr Ho that 'continued to make fun' of him.
Clayton Utz denies the allegation.
(d) Mr Williams continued to refer to him as ‘trench’ and/or continued to make fun of him for having changed in his office. He claims that this continued to ‘articulate the associations between overcoats and deviant sexual behaviour.’
Mr Williams denies the allegation.
(e) On one occasion, Mr Williams 'explained to the applicant how solicitors could take paralegals home for sex'.
Mr Williams denies the allegation.
33 With respect to Mr Taylor, it is alleged that:
(a) Mr Taylor spoke with Mr Williams (see above).
(b) Mr Mitchell received emails that 'continued to make fun' of him.
Mr Taylor denies the allegation.
(c) Mr Taylor continued to refer to him as ‘trench’ and/or continued to make fun of him for having changed in his office. He claims that this continued to ‘articulate the associations between overcoats and deviant sexual behaviour.’
Mr Taylor denies the allegation.
(d) One Friday evening Mr Taylor went into Mr Mitchell’s office, took his coat, put it on and ran up and down the hallway calling out 'trench, trench, trench'. He then went into the office of Mr Ho and continued to make fun of Mr Mitchell.
Mr Taylor agrees that he put Mr Mitchell’s coat on and walked several metres down the hall, saying 'trench-coat' several times in a sing-song voice.
(e) Mr Taylor continued to refer to the fact that Mr Mitchell had changed in his office underneath his overcoat and that that was basically what a flasher did.
34 With respect to Ms Goumenis, Mr Mitchell alleges that:
(a) she called out 'trench' to get him to come over and answer a question;
(b) she referred to Mr Mitchell as 'trench' as a way of 'getting his attention';
(c) she said in a sarcastic tone - 'Yeah, he changes underneath his trench coat next door to me' to which Mr Mitchell responded it was not true and then said to her 'no, you just fantasize about me changing in my office'.
Ms Goumenis says she has no recollection of the alleged incidents.
35 With respect to Ms Best, Mr Mitchell alleges that:
(a) she stepped off the elevator and referred to him as 'trench' without saying another word or losing a step.
(b) she stood in the hallway and referred to him as 'trench'.
Ms Best says that she referred to Mr Mitchell as 'trench coat'.
36 Mr Mitchell says that Mr Robinson is a partner of Clayton Utz and that he was aware that he was being called ‘trench’ and did nothing to stop the conduct. Mr Mitchell makes no allegation of sexually harassing conduct against Mr Robinson personally. According to Mr Mitchell, Mr Robinson derived 'maximum enjoyment' out of the comment. Mr Robinson denies the allegation.
Legal requirements for sexual harassment
37 Section 22B(1), (2) and (6) of the AD Act make it unlawful for an employer, employee or workplace participant to sexually harass an employee:
(1) It is unlawful for an employer to sexually harass:
(a) an employee, or
(b) a person who is seeking employment with the employer.
(2) It is unlawful for an employee to sexually harass a fellow employee or a person who is seeking employment with the same employer.
(6) It is unlawful for a workplace participant to sexually harass another workplace participant at a place that is a workplace of both those persons.
38 Section 22B(9) defines ‘workplace’ and ‘workplace participant’:
(9) In this section:
workplace means a place at which a workplace participant works or otherwise attends in connection with being a workplace participant.
workplace participant means any of the following:
(a) an employer or employee,
(b) a commission agent or contract worker,
(c) a partner in a partnership,
(d) a person who is self-employed,
(e) a volunteer or unpaid trainee.
39 Section 22A defines sexual harassment as follows:
For the purposes of this Part, a person sexually harasses another person if:
(a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the other person, or
(b) the person engages in other unwelcome conduct of a sexual nature in relation to the other person,
in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated.
40 As there was no allegation that unwelcome sexual advances or requests for sexual favours were made, in order to prove a complaint of sexual harassment against any fellow-employee, Mr Mitchell would have to establish that:
a) the employee engaged in conduct of a sexual nature in relation to him;
b) that conduct was unwelcome ;
c) a reasonable person , having regard to all the circumstances would have anticipated that Mr Mitchell would be offended, humiliated or intimidated.
41 There is a factual dispute about whether some of the allegations occurred and whether Mr Mitchell was called ‘trench’ or ‘trench coat’. For the purposes of determining whether to grant leave, we accept Mr Mitchell’s evidence including that he was called ‘trench’.
Conduct of a sexual nature
42 Submissions. Being teased, bullied or the subject of jokes does not constitute sexual harassment unless the conduct is “of a sexual nature” and the other elements of s 22A are satisfied. The conduct which Mr Mitchell says was of a sexual nature included being called ‘trench’ and ‘flasher’, being the subject of jokes about changing in his office and receiving emails making fun of him. This conduct, he says, articulated ‘the associations between overcoats and deviant sexual behaviour.’ Clayton Utz submitted that there was nothing inherently sexual about the words ‘trench’ or ‘trench coat’ and that being called that name does not amount to conduct of a sexual nature. In particular it was submitted that there was no evidence of any connection between the words ‘trench coat’ or ‘trench’ and deviant sexual behaviour.
43 Trench/trench coat. I accept Clayton Utz’ submission that conduct involving the use of the words ‘trench’ or ‘trench coat’, by themselves, does not constitute conduct of a sexual nature. There is nothing ‘sexual’ about those terms. Since the allegations against Ms Goumenis and Ms Best were that they merely called him those names, those complaints lack substance and leave is refused for them to proceed. Similarly, other incidents where it is alleged that Williams or Mr Taylor called Mr Mitchell ‘trench’ or ‘trench coat’, with no accompanying conduct of a sexual nature, lack substance and leave for those aspects of the complaints to proceed is refused.
44 Flasher. The word ‘flasher’ is defined in the Macquarie Dictionary (3rd edition, The Macquarie Library) as ‘Colloquial one who briefly exposes themselves in public’. It is arguable that referring to Mr Mitchell by that name constitutes conduct of a sexual nature. Mr Mitchell says that the conduct was unwelcome and we accept that evidence for the purpose of these proceedings. It is also arguable that a reasonable person, having regard to all the circumstances, would have anticipated that Mr Mitchell would be offended, humiliated or intimidated by being referred to as a ‘flasher’. Consequently leave is given for Mr Mitchell’s complaint to proceed to the extent that it involves allegations that Mr Taylor or Mr Williams referred to him as a ‘flasher’.
45 Being made fun of by conduct or email communication and being the subject of jokes for changing in his office. These allegations may constitute conduct of a sexual nature depending on whether Mr Mitchell can establish that the behaviour ‘articulated the associations between overcoats and deviant sexual behaviours’. Leave is granted for these aspects of his complaints against Mr Williams and Mr Taylor to proceed.
46 Taking para-legals home for sex. The alleged comment about how ‘solicitors could take paralegals home for sex' is not conduct of a sexual nature in relation to Mr Mitchell. If it was said, it was a comment about the situation as Mr Williams understood it, rather than conduct of a sexual nature in relation to Mr Mitchell.
47 Conclusion. Leave is granted for the complaints of sexual harassment against Mr Williams and Mr Taylor personally and against Clayton Utz as their employer to proceed except for the allegations that Mr Williams or Mr Taylor called Mr Mitchell ‘trench’ or ‘trench coat’. Since there is no allegation that Mr Robinson engaged in any conduct of a sexual nature as defined in s 22A, nor any other basis on which Mr Mitchell submitted that Mr Robinson could be liable under the AD Act, leave is refused for the complaint of sexual harassment against him to proceed.
Sex discrimination complaint
48 The allegations of sex discrimination against Clayton Utz are outlined in the President’s Report in the following terms:
Mr Mitchell alleges that the sexual harassment he experienced was not an isolated incident but rather the product of a ‘culture of harassment’ that existed in his work group (Structured Capital Markets SCM, a practice group he states was widely known in Clayton Utz as SCUM.). He alleges that staff working in the SCUM group were encouraged to employ humour, often inappropriate and sexual in nature, and that this humour was condoned by management of SCM. He states that he was encouraged to employ the same type of SCM humour as his colleagues, however was eventually reported to management for doing so . . . He alleges further that Clayton Utz have believed a female complainant’s allegations and have made its decision without the necessity to investigate the male harasser’s position. He states that Clayton Utz has treated him less favourably than a female employee would have been treated in the same or similar circumstances.
Legal requirements for sex discrimination complaint
49 Section 25(2) of the AD Act makes it unlawful for an employer to discriminate on the ground of sex. It provides:
(2) It is unlawful for an employer to discriminate against an employee on the ground of sex:
(a) in the terms or conditions of employment which the employer affords the employee,
(b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or
(c) by dismissing the employee or subjecting the employee to any other detriment.
50 Section 24(1) of the Act relevantly defines discrimination for the purpose of the Act:
(1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of sex if, on the ground of the aggrieved person's sex or the sex of a relative or associate of the aggrieved person, the perpetrator:
(a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of the opposite sex or who does not have such a relative or associate of that sex, or
(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons of the opposite sex, or who do not have such a relative or associate of that sex, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.
51 Mr Mitchell is required to show that:
(a) he was subjected to a detriment ;
(c) a reason for being subjected to a detriment was because he was a man ( causation ).(b) a female employee would have been treated differently in the same or similar circumstances; ( differential treatment ) and
Detriment and discrimination
52 Detriment? The detriment Mr Mitchell alleges that he suffered was that he was exposed to a culture of harassment and treated differently than a female employee would have been treated in relation to the way in which Clayton Utz investigated the allegations of sexual harassment against him. For the purposes of these proceedings we accept that both allegations constitute a detriment.
53 Differential treatment? There was no evidence that Mr Mitchell was treated any differently from any other employee in relation to his exposure to a ‘culture of harassment’. The only instance he cites of allegedly differential treatment is that the female employee who made the complaint of harassment against him was believed whereas he was not. When making the comparison, the circumstances must be ‘the same’ or ‘not materially different’. The circumstances of making a complaint of harassment and being investigated in relation to a complaint of harassment are materially different. Consequently, the comparator can only be a hypothetical employee.
54 Causation? There is no evidence supporting Mr Mitchell’s assertion that he was treated differently than a woman would have been treated in relation to the manner in which the allegation of sexual harassment were investigated. Mr Mitchell’s complaint of sex discrimination lacks substance and leave for it to proceed is refused.
Victimisation complaints
55 Mr Mitchell alleges that the way Ms Rutz treated him in the second meeting on 19 July 2007 amounts to victimisation. Mr Mitchell also complains that Mr Catanzariti, a partner with Clayton Utz, victimised him by sending him an email.
Legal requirements for victimisation complaints
56 Section 50 of the AD Act provides:
(1) It is unlawful for a person (the discriminator) to subject another person (the person victimised) to any detriment in any circumstances on the ground that the person victimised has:
(a) brought proceedings against the discriminator or any other person under this Act,
(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act,
(c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or
(d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person,
or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.
(2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith.
57 In summary, to prove victimisation Mr Mitchell must establish that:
(i) he did one or more of the things listed in (a) – (d): the trigger ;
(ii) the Ms Rutz and/or Mr Catanzariti subjected him to a detriment ; and
(iii) the detriment was on the ground that Mr Mitchell did one of the things listed in (a) – (d): causation.
Alleged victimization by Ms Rutz
58 Trigger. Mr Mitchell says that he made both ‘explicit’ and ‘implicit’ allegations of wrongdoing, namely telling Ms Rutz that she did not have the right to ask ‘personal’ or ‘probing’ questions about his medical history or his medication and alleging that she was asking those questions in an aggressive manner. It is at least arguable that if Mr Mitchell expressly objected to those questions being asked, that conduct could amount to an allegation that Ms Rutz had committed an act that would amount to a contravention of the AD Act: s 50(1)(c).
59 Detriment. The detriment Mr Mitchell alleges was caused by his conduct was that Ms Rutz broke their agreement to meet a second time in the presence of a third person. It is arguable that that constitutes a detriment.
60 Causation. While there is no apparent link between Mr Mitchell’s disability and the absence of a third party at the meeting, it is at least arguable that such a link exists. Consequently, leave is granted for the complaints of victimisation against Ms Rutz and to proceed. Clayton Utz accepts that if any employee breached the AD Act the partnership would be vicariously liable unless it could establish the defence under s 53 of the AD Act. Consequently, Clayton Utz should also be named as a respondent to the complaint of victimisation against Ms Rutz.
Alleged victimisation by Mr Catanzariti
61 Background. Mr Mitchell says that in January or February 2008 he sent an email informing Ms Keeling and Mr Catanzariti that he would be bringing a complaint of discrimination against various employees of Clayton Utz. On 7 March 2008 Mr Mitchell sent an email to Ms Keeling requesting that she provide him with an address for service if she left her employment prior to receiving a complaint that Mr Mitchell intended to lodge with the then Human Rights and Equal Opportunity Commission (HREOC). Ms Keeling did not reply to that request. A month later, Mr Mitchell says he noticed that Ms Keeling had written “Claire is leaving the LAW” on her ‘Facebook’ page on the internet. Having not heard from Ms Keeling about an alternative address, Mr Mitchell emailed her on 13 May 2008 saying:
You will recall that on 6 March 2008, I wrote to you as Clayton Utz asking you to inform me if you decide to leave your employment, Clayton Utz before you receive service of documents for my human rights claim from the HREOC, and, should you do so, to please provide me a new address for service so that the HREOC can serve my claim on you.
It appears from your Facebook, page on April 14, 2008 in which you wrote. "Claire is leaving the LAW" that you have in fact terminated your employment as Clayton Utz, and regretfully, you have not provided me an address where I can have documents served on you.
I am going to be filing my claim with the HREOC at the beginning of June and, unless you are taking an inordinately long notice period, I will need another address, for you. You are required to provide me an address where I can have these documents served on you.
Yours trulyPlease note that a Court can award punitive damages against a respondent who intentionally frustrates the claim process through improper behaviour.
M Mitchell
62 When this email was brought to Mr Catanzariti’s attention, Mr Mitchell says that Mr Catanzariti wrote to him in the following terms:
Dear Mr Mitchell
It has come to my attention that you have sent a message to Ms Claire Keeling through the website "Face book" in relation to your threatened claim arising from your employment with Clayton Utz. At the time the message was sent and received Ms Keeling was an employee of the firm.
It is apparent that you identified Ms Keeling as being a member of that site by engaging in an online search process, obtaining information from her member profile and then using that information to contact her. That process, coupled with the tone of the message left to her based on information obtained, is cause for concern. It is reasonable to draw an inference that you have engaged in similar searches for other Clayton Utz staff with whom you are apparently aggrieved.
Accordingly, if you want to raise any matters or issues in respect of your threatened claim, I would ask that you do so through me.Clayton Utz is committed to the health safety and welfare of its employees: it will not countenance any stalking, harassment or intimidation of its staff by persons who have an issue with the firm. Affected individuals may also want to take independent legal and other steps to protect themselves.
63 While Mr Mitchell did not provide a copy of the original email, and does not identify the date it was written, for the purpose of these proceedings we have accepted Mr Mitchell’s evidence that Mr Catanzariti sent this email.
64 Trigger. Mr Mitchell says that the trigger for the detriment was his email in January or February 2008 informing Mr Catanzariti and others that he would be bringing a complaint of discrimination against various employees of Clayton Utz. Mr Catanzariti knew of Mr Mitchell’s intention to complain because he refers in his email to ‘your threatened claim arising from your employment with Clayton Utz’.
65 Intention. The Respondents cited Bhattacharya v Department of Public Works (1984) EOC 92-117 at 76,133 as authority for the proposition that a person must have an intention to victimise for the purpose of s 50(1). Since that decision there have been several decisions to the contrary. The word ‘subject’ means no more than that the conduct of the respondent was done on one of the grounds referred to in s 50(1) and adds nothing of substance to that requirement: Shaikh v Commissioner, NSW Fire Brigades (1996) EOC 92–808 at 78, 986; Borg v Commissioner, Department of Corrective Services & Anor [2002] NSWADT 42 at [169]-[171. Consequently, failure to prove an intention to victimise does not mean that the complaint lacks substance.
66 Detriment. Mr Mitchell said that the detriment was:
a) the comment that the way he had obtained information about Ms Keeling was ‘cause for concern’;
b) the inference that he had engaged in similar searches for other Clayton Utz staff;
c) the statement that Clayton Utz will not countenance any stalking, harassment or intimidation of its staff; and
d) the suggestion that individuals may want to take independent legal and other steps to protect themselves.
67 Mr Mitchell makes many other assertions about the implications of Mr Catanzariti’s email but I have confined my consideration to the words that appear in that document.
68 Relevant case law. Certain conduct in response to accusations of wrongdoing have been held not to constitute a detriment in proceedings under the DD Act. In Penhall-Jones v State of NSW [2006] FCMA 927 the applicant alleged that her employer had victimised her after she complained of discrimination to HREOC. The Acting Director-General of the Ministry of Transport (MOT) had written to the applicant indicating that if she continued making false and vexatious complaints against the Ministry her employment may be terminated. The Federal Court upheld the findings of Driver FM that the writing of that letter did not constitute victimisation: Penhall-Jones v State of NSW [2007] FCA 925. At [63] Buchanan J expressed doubt as to whether the letter even constituted a threat and went on to say that:
Some indication of the seriousness with which Ms Penhall-Jones’ accusations were viewed and, in particular, that they were regarded as inappropriate was not only natural but necessary if, in response to a continuation of allegations of that kind, the MOT wished to take action as a result. . . .A failure to indicate the seriousness with which the allegations were viewed would require explanation if disciplinary action followed. . . .All warnings, which are often an integral and necessary part of fair treatment and proper notice, contain an element of explicit or implicit menace by their very nature.
69 Conclusion. Mr Catanzariti’s communication with Mr Mitchell was in a slightly different context from that in Penhall-Jones. Mr Mitchell was no longer an employee of Clayton Utz. Mr Mitchell had advised the firm and various employees that he intended to commence legal action against them. Mr Catanzariti was responding to a communication from Mr Mitchell about that intended legal action.
70 Mr Catanzariti says in the email that he is concerned about the way in which Mr Mitchell obtained information about Ms Keeling and infers that he has obtained information about other employees in the same way. In advising Mr Mitchell that Clayton Utz ‘will not countenance any stalking, harassment or intimidation of its staff’, Mr Catanzariti was warning Mr Mitchell not to engage in such conduct. As Buchanan J said in Penhall-Jones, ‘warnings . . . contain an element of explicit or implicit menace by their very nature.’ Mr Catanzariti also pointed out that other individuals may want to obtain independent legal advice to protect themselves. Mr Catanzariti is entitled to express those views and make those comments in the context of threatened legal proceedings against employees of Clayton Utz. The fact that Mr Mitchell disagrees with Mr Catanzariti’s views about the kind of conduct in which he has engaged or the possible legal implications of that conduct is irrelevant. Mr Mitchell’s reaction or interpretation does not make the email a ‘detriment’ under s 50. The test is an objective one. Taking into account the context in which the email was sent as well as its content, it does not, in my view, constitute a ‘detriment’. For that reason the complaint of victimisation against Mr Catanzariti lacks substance and leave for it to proceed is refused.
Conclusion and orders
71 Mr Mitchell, a lawyer formerly employed by Clayton Utz, complained of disability discrimination, sexual harassment, sex discrimination and victimisation against both his employer and several of its employees. Because the President of the Anti-Discrimination Board declined those complaints as lacking in substance, Mr Mitchell needs the Tribunal’s permission before the complaints can go ahead. I have decided that the following complaints, or parts of complaints, should proceed:
a) the complaint of disability discrimination against Clayton Utz relating to Ms Rutz’ questioning of Mr Mitchell in meetings on 22 June 2007 and 19 July 2007 so far as those questions relate to Mr Mitchell’s medical history and medical treatment; and
b) the complaint of disability discrimination against Clayton Utz relating to the non-attendance of a third party at a meeting with Ms Rutz on 19 July 2007;
c) the complaints of sexual harassment against Mr Williams and Mr Taylor personally and against Clayton Utz as their employer in relation to the alleged conduct except for the allegations that Mr Williams or Mr Taylor called Mr Mitchell ‘trench’ or ‘trench coat’ and the comment alleged to have been made by Mr Williams that 'solicitors could take paralegals home for sex; and
d) the complaints of victimisation against Ms Rutz and against Clayton Utz as her employer.
72 Leave is refused for the following complaints or parts of complaints to proceed:
a) the complaint of disability discrimination against Clayton Utz relating to Ms Rutz’ questioning of Mr Mitchell in meetings on 22 June 2007 and 19 July 2007 so far as those questions relate to Mr Mitchell’s fitness to perform his duties;
b) the complaint of disability discrimination against Clayton Utz relating to the termination of his employment;
c) the complaints of sexual harassment against Ms Goumenis, Ms Best and Mr Robinson;
d) the complaint of sex discrimination against Clayton Utz; and
e) the complaint of victimisation against Mr Catanzariti.
28/10/2009 - 28 October 2009 Addition to order of : 'and the comment alleged to have been made by Mr Williams that 'solicitors could take paralegals home for sex;' - Paragraph(s) Order 1c) and Paragraph 71c)
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