Shiels v James

Case [2000] FMCA 2


IN THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

Registry: Sydney
Applicant Donna Marie Shiels
Respondent 1: Trevor Leighton James
Respondent 2: Lipman Pty Limited
File No: SZ3/2000
Hearing Dates: 31 August, 1, 4 September 2000
Date of Decision: 13 September 2000
Before: Kenneth Raphael FM
Primary Legislation: Sex Discrimination Act 1984, ss5, 14, 16(d), 28A & 28B. Human Rights and Equal Opportunity Commission Act 1986 s46PO
Application: Discrimination in employment on grounds of sexual harassment
Matter for Decision: Principal Matter
REPRESENTION
Applicant: Ms Diana Stewart instructed by Messrs Higgins & Higgins, Solicitors
Respondents: Ms Katherine Eastman instructed by Messrs Cowley Hearne, Solicitors
ORDERS:

1.   Respondents to pay the Applicant $17,000.00

2.   Respondents to pay the Applicant’s costs.

IN THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
SYDNEY REGISTRY
No SZ3/2000

BETWEEN:

DONNA MARIE SHIELS
Applicant

and

TREVOR LEIGHTON JAMES
First Respondent

LIPMAN PTY LIMITED
Second Respondent

REASONS FOR JUDGMENT

What is the nature of the dispute?

1This application is brought by Donna Marie Shiels against Trevor Leighton James and Lipman Pty Limited pursuant to s.46PO of the Human Rights and Equal Opportunity Act 1986 (Cwth) [HREOC Act] claiming that she was the subject of sexual harassment contrary to s.28B (6) of the Sex Discrimination Act 1984 (Cwth) [SDA]. 

2The Applicant also alleged discrimination under s.16(d) of SDA which deals with discrimination against contract workers and that the corporate Respondent was liable under this section and under s.106 of the SDA for the actions of its employees and Mr James.

3The proceedings when originally commenced, included as a Respondent Anthony Michael Wood.  However, on the first day of the hearing it was submitted by Counsel for the Respondents that whilst the original complaint had included an allegation against Mr Wood, this allegation had been withdrawn by a letter from the Applicant’s solicitors, Messrs Higgins & Higgins, to HREOC dated 2 November 1998 [Exhibit 1] which stated in terms:

“Mr Tony Woods (sic) is not to be identified as a Respondent”.

4On the second morning of the hearing the Applicant’s Counsel formally withdrew the claim against Mr Wood. 

5Although the proceedings before this Court were not conducted by way of points of claim or other form of pleading the original affidavit of the Applicant indicated that it would be alleged that Ms Shiels’ employment with Lipman Pty Limited was terminated as a result of the discrimination which she had allegedly suffered. This allegation would give rise to a claim in damages for loss of earnings. It was submitted by Counsel for the Respondent that although this claim was contained in the application to the Court it was not contained in the original complaint to HREOC. S.46PO(3) HREOC Act states:

“The unlawful discrimination alleged in the application:

(a)must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the complaint; or

(b)must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.”

6The effect of…

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Shiels v James [2000] FMCA 2
Case
[2000] FMCA 2
Decision Date

CaseChat Overview and Summary

In Shiels v James, Donna Marie Shiels claimed that she was sexually harassed by Trevor Leighton James, a site manager at Lipman Pty Limited. Shiels alleged that James made unwelcome sexual remarks and engaged in inappropriate physical conduct. The case was heard in the Federal Magistrates Court of Australia. The legal issues revolved around whether James' conduct constituted sexual harassment under the Sex Discrimination Act 1984 and whether Lipman Pty Limited was liable for James' actions. The court found that James' conduct was unwelcome and of a sexual nature, constituting sexual harassment. Lipman Pty Limited was held liable as it had not taken reasonable steps to prevent such harassment. The court awarded Shiels $17,000 in compensation for hurt, humiliation, and distress, as well as potential economic loss due to difficulties in finding suitable employment. Costs were also ordered to be paid by the respondents.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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