HUMAN RIGHTS – sexual harassment – various allegations of conduct constituting sexual harassment – whether employee sexually harassed – whether conduct constituted “unwelcome conduct of a sexual nature” – whether claims made out on evidence
HUMAN RIGHTS – sex discrimination – female employee complained about sexual harassment in robust work environment – complaints dealt with inadequately – employee subsequently given warnings about unsatisfactory work performance – employment purportedly terminated on basis of unsatisfactory work performance – whether warnings about unsatisfactory work performance warranted in the circumstances – whether purported termination of employment for sufficient reason, or whether related to her complaints about sexual harassment – whether employer discriminated against employee on grounds of her sex
MALGORZATA BARBARA PONIATOWSKA v ALAN HICKINBOTHAM, MICHAEL HICKINBOTHAM, MARK FLYNN, ROZ SHARRAD, REMO LOTITO, HICKINBOTHAM HOMES PTY LTD and EMPLOYMENT SERVICES AUSTRALIA PTY LTD
SAD 120 of 2007
MANSFIELD J 23 JUNE 2009 ADELAIDE
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
SAD 120 of 2007
BETWEEN:
MALGORZATA BARBARA PONIATOWSKA Applicant
AND:
ALAN HICKINBOTHAM First Respondent
MICHAEL HICKINBOTHAM Second Respondent
MARK FLYNN Third Respondent
ROZ SHARRAD Fourth Respondent
REMO LOTITO Fifth Respondent
HICKINBOTHAM HOMES PTY LTD Sixth Respondent
EMPLOYMENT SERVICES AUSTRALIA PTY LTD Seventh Respondent
JUDGE:
MANSFIELD J
DATE OF ORDER:
23 JUNE 2009
WHERE MADE:
ADELAIDE
THE COURT ORDERS THAT:
1.The seventh respondent pay to the applicant by way of compensation for unlawful discrimination contrary to s 46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) the sum of $466,000, which sum includes interest.
2.The applicant and the seventh respondent have liberty to apply for an order that the said compensation, or some part of it, be paid by some one or more of the second, third, fourth or fifth respondents.
3.The seventh respondent pay to the applicant her costs of the application.
4.The seventh respondent have liberty to apply for an order that some part of the costs ordered to be paid by it be paid by some one or more of the second, third, fourth or fifth respondents.
Note:Settlement and entry of orders is dealt with in Order…
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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Details
AGLC
Poniatowska v Hickinbotham [2009] FCA 680
Case
[2009] FCA 680
Decision Date
CaseChat Overview and Summary
The case of Poniatowska v Hickinbotham involved a legal dispute brought before the Federal Court of Australia, specifically the Full Court, by the applicant, Ms Poniatowska, against the seventh respondent, Mr Hickinbotham, and several other respondents. The crux of the matter was an allegation of unlawful discrimination against Ms Poniatowska by Mr Hickinbotham, which she claimed contravened section 46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth). The applicant sought compensation and costs arising from this alleged discrimination.
The primary legal issues that the court had to address were whether the alleged discrimination indeed occurred, and if so, the appropriate quantum of compensation and costs. The court needed to determine if the seventh respondent's actions met the statutory definition of unlawful discrimination under the relevant legislation. Furthermore, the court had to consider the appropriate allocation of costs between the parties, including whether some of these costs should be borne by the other respondents mentioned in the proceedings.
In its reasoning, the court found that the seventh respondent's actions did constitute unlawful discrimination, thereby justifying an award of compensation to the applicant. The court meticulously evaluated the evidence presented to ascertain the correct amount of compensation, which was determined to be $466,000, inclusive of interest. Additionally, the court ruled that the seventh respondent was responsible for paying the applicant's costs associated with the application. The court also granted liberty for both parties to apply for adjustments in the allocation of costs, allowing for potential contributions from other respondents involved in the case.
In summary, the Full Court ordered the seventh respondent to pay the applicant a specified sum as compensation for the unlawful discrimination and to cover the applicant's costs. Furthermore, it provided flexibility for future applications regarding the distribution of these costs among the other respondents.
Orders
Orders of the court
1. The seventh respondent pay to the applicant by way of compensation for unlawful discrimination contrary to s 46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) the sum of $466,000, which sum includes interest.
2. The applicant and the seventh respondent have liberty to apply for an order that the said compensation, or some part of it, be paid by some one or more of the second, third, fourth or fifth respondents.
3. The seventh respondent pay to the applicant her costs of the application.
4. The seventh respondent have liberty to apply for an order that some part of the costs ordered to be paid by it be paid by some one or more of the second, third, fourth or fifth respondents.