REVEREND LAURIE PEARSON AS PRESIDENT OF THE ASSOCIATION OF THE CANONICAL ADMINISTRATORS OF PADUA COLLEGE
Plaintiff
v
JOHN MARTIN
Defendant
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JUDGE:
GARDE J
WHERE HELD:
Melbourne
DATE OF HEARING:
9 November 2015
DATE OF JUDGMENT:
9 December 2015
CASE MAY BE CITED AS:
Pearson v Martin
MEDIUM NEUTRAL CITATION:
[2015] VSC 696
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EQUAL OPPORTUNITY – Discrimination in termination of employment – Attribute of lawful sexual activity – Dismissal of teacher – Whether lawful sexual activity substantial reason for termination – Boundary transgressions – Equal Opportunity Act 2010 (Vic) ss 8(2)(b) and 18(b).
APPEAL – Victorian Civil and Administrative Tribunal – Leave to appeal – Question of law – Whether open to Tribunal to arrive at the conclusion it did – Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 148 – Leave to appeal granted – Appeal dismissed.
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APPEARANCES:
Counsel
Solicitors
For the Plaintiff
Dr I Freckelton QC with Mr S McGregor
Minter Ellison
For the Defendant
Mr N Harrington
McGuiness & Hosking Pty
HIS HONOUR:
Introduction
John Martin was a teacher at Padua College (‘the College’) until it terminated his employment on 5 June 2013.[1] In February 2014, he filed an application with the Victorian Civil and Administrative Tribunal (‘the Tribunal’) alleging that the College had discriminated against him in the termination of his employment contrary to s 18(b) of the Equal Opportunity Act 2010 (Vic) (‘the Act’). He alleged that the termination was direct discrimination by the College because a substantial reason for his dismissal was his sexual activity with Ms Samantha Anderson, a former student of the College. Discrimination based on lawful sexual activity is prohibited under s 6(g) of the Act.
[1]While the full description of the plaintiff is set out in the title to the proceeding it is convenient to describe the plaintiff as Padua College or simply the College. The description of the plaintiff is irrelevant to the issues in dispute.
In 2012, Ms Anderson turned eighteen years old and was a year 12 student at the College. Following a social gathering in late December 2012, she commenced an intimate relationship with Mr Martin. The two of them commenced living together in about March or April 2013.
The College’s defence was that the sexual activity between Mr Martin and Ms Anderson was not a substantial reason for the termination of his employment. It was accepted that the sexual activity between Mr Martin and Ms Anderson was lawful. The College did not rely on any of the exceptions relating to religious bodies or schools contained in Part 5 of the Act.[2]
In its decision, the Tribunal found that the sexual activity between Mr Martin and Ms Anderson was…
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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AGLC
Pearson v Martin [2015] VSC 696
Case
[2015] VSC 696
Decision Date
CaseChat Overview and Summary
Pearson v Martin involved a dispute between the appellant, Pearson, and the respondent, Martin, concerning the termination of Pearson's employment as a teacher. The matter was brought before the court following a decision by the Victorian Civil and Administrative Tribunal, which dismissed Pearson's complaint of unlawful discrimination. Pearson alleged that the termination of their employment was due to their lawful sexual activity, which the court had to consider in light of the Equal Opportunity Act 2010 (Vic).
The primary legal issue before the court was whether the lawful sexual activity was a substantial reason for Pearson's dismissal, and if this constituted discrimination under the Equal Opportunity Act. The court also had to determine if the Tribunal was correct in finding that the boundary transgressions between Pearson and a student were not related to the lawful sexual activity. The court examined whether the Tribunal's findings were open to it, and if the appeal was justified under the Victorian Civil and Administrative Tribunal Act 1998 (Vic).
The court found that the Tribunal's conclusion was open to it, and that the Tribunal was entitled to consider the boundary transgressions as separate from the lawful sexual activity. The court held that the Tribunal's findings were reasonable and not in error, thus dismissing the appeal. The court acknowledged the significance of lawful sexual activity in the context of employment discrimination but ultimately upheld the Tribunal's decision, affirming that the termination was not based on the appellant's lawful sexual activity.