Phillis v Mandic

[2005] FMCA 330

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PHILLIS v MANDIC [2005] FMCA 330

HUMAN RIGHTS – Sex Discrimination – sexual harassment – whether acts complained of by employee constituted a breach of s.28A by fellow employee – where applicant submits medical evidence which is unchallenged – discussion of measure of damages for non-economic loss.

Human Rights and Equal Opportunity Commission Act 1986 (Cth), s.46PO
Sex Discrimination Act 1984 (Cth), s.28A

Briginshaw v Briginshaw (1938) 60 CLR 336
Hall v Sheiban [1988-89] 85 ALR 503
Commonwealth v HREOC [2000] FCA 1150
Gilroy v Angelov [2000] FCA 1775
Alexander v Home Office [1988] 1 WLR 968
Commonwealth v Evans [2004] FCA 654
Howe v Qantas [2004] FMCA 242
Evans v National Crime Authority [2003] FMCA 375

Applicant: JOANNE PHILLIS

Respondent: ZARAVKO MANDIC

File Number: SYG 1115 of 2004

Judgment of: Raphael FM

Hearing dates: 7 & 8 March 2005

Delivered at: Sydney

Delivered on: 29 March 2005

REPRESENTATION

Counsel for the Applicant: Ms J Healey

Solicitors for the Applicant: Lough Wells Duncan

Counsel for the Respondent: Mr C Robinson

Solicitors for the Respondent: Russell McLelland Brown

ORDERS

1. The respondent pay the applicant the sum of $4,000 for breach of s.28B(2) of the Sex Discrimination Act 1984 (Cth).

2. The Respondent pay the applicant’s costs to be assessed according to Part 21 Rule 21.02(2)(b) and Schedule 1 of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1115 of 2004

JOANNE PHILLIS

Applicant

And

ZARAVKO   MANDIC

Respondent

REASONS FOR JUDGMENT

Introduction

1. These proceedings are brought by the applicant under ss.46PO(1) and (4) of the Human Rights Equal Opportunity Commission Act 1986 (Cth) alleging a series of actions by the respondent between 17 – 28 July 2003 breached of s.28B(2) of the Sex Discrimination Act 1984 (Cth) because they constituted sexual harassment as defined in s.28A of the Act. The respondent denied that he had engaged in the conduct alleged at all, but argued that if such conduct could be established it did not fall within the definition of sexual harassment contained within subsection 28A(1).

Background

1. The applicant is a young woman of almost 27 years of age. She left her selective high school in year 12 to take up a position in the Royal Australian Navy. She had been adopted at or around the time of her birth. In 1999 she married a fellow rating, resigned from the navy and moved with him to Perth. In June 2001 she separated from her husband and returned to NSW. She was divorced in or around July 2002. After a series of jobs of an administrative nature she joined a company known as Redgum Engineering (“Redgum”) on 7 July 2003. She had been introduced to this company through her uncle who knew the proprietor Mr Evan Sinclair. The business appears to have been a small engineering operation specialising in repairing and making parts for water cooling machines. Ms Phillis was employed to cope with the considerable backlog of paperwork, particularly Mr Sinclair’s problems with not…