Murphy v David Jones Limited - [2002] NSWADT 140

CITATION: Murphy v David Jones Limited [2002] NSWADT 140

DIVISION: Equal Opportunity Division

PARTIES: APPLICANT
Emmett Joel Murphy Junior
RESPONDENT
David Jones Limited

FILE NUMBER: 011012

HEARING DATES: 21/06/2001-22/06/2001, 01/08/2001

SUBMISSIONS CLOSED: 08/29/2001

DATE OF DECISION:
08/15/2002

BEFORE: Rice S - Judicial Member; Nemeth de Bikal L - Member; Silva A - Member

APPLICATION: Race Discrimination - In work - Victimisation

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Anti-Discrimination Act 1977
Security Industry (Protection) Act 1985
Security Industry (Protection) Regulation 1986

CASES CITED: Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85
Gidaro v Secretary, Department of Social Security, Federal Court [1998] 400 FCA; 154 ALR 550
Commissioner of Corrective Services v Aldridge (EOD) [2000] NSWADTAP 5
Dutt v Central Coast Area Health Service [2002] NSWADT 133

REPRESENTATION: APPLICANT
In person
RESPONDENT
R McIlroy, solicitor

ORDERS: 1. The complaint of discrimination on the ground of race is substantiated as to one of the allegations made.; 2. The complaint of victimisation is dismissed.; 3. The respondent shall within 28 days pay to the complainant the sum of $1,000 by way of compensation for loss and damage.

1 For the reasons given below the Tribunal finds that Mr Murphy’s complaint of race discrimination is substantiated as to one of the allegations made, and that Mr Murphy’ complaint of victimisation is not substantiated.

BACKGROUND

2 Mr Murphy was born in Houston Texas USA, and was raised in the United States of America. His ‘race’ within the definition of s4 of the Anti-Discrimination Act (the ‘ADA’) is African American. He was actively an officer of the United States Navy until October 1994, and remained in inactive service until January 1998.

3 Mr Murphy arrived in Australia in May 1995. In August 1995 he was employed by David Jones Pty Ltd (‘David Jones’) as a security manager – Loss Prevention Supervisor – at the Pagewood store in Sydney.

COMPLAINTS

Letter of complaint

4 On 5 June 1998 the Anti-Discrimination Board received a letter from Mr Murphy saying:

I believe that during the time I have been employed by David Jones I have been subject to work conditions different from other employees. I also believe I have been treated less favourably than other employees in a similar position. I believe I have been required to comply with conditions which other employees did not have to comply with. I believe I have been denied access to opportunities for transfer and training afforded other employees. I feel I have been subjected to detrimental treatment and have been victimised due to my complaints about my race and sex.

5 Despite the reference to ‘sex’ in the last sentence of the quoted passage, the President of the Anti-Discrimination Board did not investigate or refer a complaint of discrimination on the ground of Mr Murphy’s sex, and Mr Murphy led no evidence relating to such a complaint.

6 In his letter of complaint Mr Murphy recounted incidents in his employment which began…

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 Murphy v David Jones Limited

Details

AGLC: Murphy v David Jones Limited [2002] NSWADT 140
Case: [2002] NSWADT 140
Decision Date: 08/15/2002

CaseChat Overview and Summary

In the matter of Murphy v David Jones Limited, the complainant, a person of non-Anglo-Saxon appearance, alleged that the respondent, a major retailer, discriminated against them on the basis of race and subsequently victimised them. The dispute was heard and determined by the Anti-Discrimination Board of New South Wales. The primary legal issues before the court were whether the respondent's actions constituted racial discrimination and whether the complainant had been subjected to victimisation as a result of their complaint. The court had to carefully consider the evidence presented, including witness testimonies and the respondent's policies and practices, to determine whether the respondent's conduct met the legal definitions of racial discrimination and victimisation under the Anti-Discrimination Act.

The court found that while the evidence did not substantiate all the allegations of racial discrimination, there was sufficient evidence to substantiate one of the allegations. The complainant was subjected to differential treatment based on their race, which the court deemed to be unlawful discrimination. However, the court dismissed the claim of victimisation, finding that there was no causal link between the complainant's complaint and any adverse actions taken by the respondent. Regarding the quantum of compensation, the court awarded the complainant $1,000 for the loss and damage suffered due to the substantiated racial discrimination. The respondent was ordered to pay this sum within 28 days.

Orders

Orders of the court

1. The complaint of discrimination on the ground of race is substantiated as to one of the allegations made.; 2. The complaint of victimisation is dismissed.; 3. The respondent shall within 28 days pay to the complainant the sum of $1,000 by way of compensation for loss and damage.

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

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Murphy v David Jones Limited [2002] NSWADT 140
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Emmett Joel Murphy Junior RESPONDENT David Jones Limited
FILE NUMBER:	011012
HEARING DATES:	21/06/2001-22/06/2001, 01/08/2001
SUBMISSIONS CLOSED:	08/29/2001
DATE OF DECISION:	08/15/2002
BEFORE:	Rice S - Judicial Member; Nemeth de Bikal L - Member; Silva A - Member
APPLICATION:	Race Discrimination - In work - Victimisation
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Security Industry (Protection) Act 1985 Security Industry (Protection) Regulation 1986
CASES CITED:	Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85 Gidaro v Secretary, Department of Social Security, Federal Court [1998] 400 FCA; 154 ALR 550 Commissioner of Corrective Services v Aldridge (EOD) [2000] NSWADTAP 5 Dutt v Central Coast Area Health Service [2002] NSWADT 133
REPRESENTATION:	APPLICANT In person RESPONDENT R McIlroy, solicitor
ORDERS:	1. The complaint of discrimination on the ground of race is substantiated as to one of the allegations made.; 2. The complaint of victimisation is dismissed.; 3. The respondent shall within 28 days pay to the complainant the sum of $1,000 by way of compensation for loss and damage.