SUELLEN PATERSON AND PETER CLARKE - [2009] ACTDT 3

AUSTRALIAN CAPITAL TERRITORY
DISCRIMINATION TRIBUNAL

CITATION: SUELLEN PATERSON AND PETER CLARKE [2009] ACTDT 3

DT 7 of 1998

Catchwords: Sexual harassment – Discrimination – Victimisation
- Causal link – Proof – Remedy.

Provisions considered

Discrimination Act 1991 (Republication No. 3 (RI),
ss. 7, 8, 58, 59, 68 and 102.

List of cases cited

Almassey AND Omari and ACT Multicultural Council   Inc. [2008] ACTDT 2
  Briginshaw v Briginshaw [1938] HCA 34;
(1938) 60 CLR 336
  De Domenico v Marshall [1999] FCA 1305.
  Duhbihur v Transport Appeal Board
[2005] NSWSC 811
  Hall v A & A Sheiban Pty Ltd [1989] FCA 72
  Kwesius and ACT Health [2008] ACTDT 3
  McCormack and Charles Sturt University
[2008] ACTDT 4
  Michael Firestone v Australian National University   [2009] ACTDT 1

AUSTRALIAN CAPITAL TERRITORY )
DISCRIMINATION TRIBUNAL ) NO: DT 7/98

RE:SUELLEN JOY PATERSON

Complainant

AND:PETER MILTON CLARKE Respondent

ORDER

Tribunal : Mr R J Cahill, President

Date : 3 August 2009

THE TRIBUNAL ORDERS:

That the Tribunal is satisfied that the Complainant’s complaint against the Respondent in relation to an incident of sexual harassment on 11 June 1996 has been substantiated and that the Respondent contravened
section 59 of the Discrimination Act 1991 (as it stood at that time).

That the Respondent pay $1000.00 to the Complainant as compensation for the loss and damage the Complainant suffered as a result of the Respondent’s sexual harassment.

That the Complainant’s claim that she was discriminated against, and victimised by, the Respondent, in particular, by the Respondent reducing the shifts of work allocated to her or by her making a complaint against the Respondent, has not been substantiated.

That the parties bear their own costs.

...............................
President

AUSTRALIAN CAPITAL TERRITORY )
DISCRIMINATION TRIBUNAL ) NO: DT 7/98

RE:SUELLEN PATERSON

Complainant

AND:PETER CLARKE Respondent

REASONS

Mr R J Cahill, President

3 August 2009

On 3 August 2009, I made an order in this matter and delivered my reasons orally. Now, I set out the detailed reasons in writing.

This matter concerns a complaint made by Ms Suellen Paterson (the Complainant) against Mr Peter Clarke (the Respondent) under the Discrimination Act 1991 (also referred to as “the Act”).

I should mention that the matter had been dormant in the records of the Discrimination Tribunal because at one early stage, some time ago now, Mr Clarke, the Respondent in the matter, left Canberra and has been unable to be located, even by his own solicitor, who was then acting for him.

So for some time the matter stayed that way, but due to the fact that this matter, if it was heard today, would come before the ACAT Tribunal, and not the individual Discrimination Tribunal, it is necessary to finalise the matter without Mr Clarke’s further involvement. He has not appeared or responded to any notice or any contact we have endeavoured to make of him from the Discrimination Tribunal.

The Complainant complained to the ACT Human Rights Office that she was discriminated against by the…

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.

Keep reading for free

Create a free CaseChat account to read SUELLEN PATERSON AND PETER CLARKE and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2009] ACTDT 3
Decision Date: 3 August 2009

CaseChat Overview and Summary

In the matter of Suellen Paterson and Peter Clarke, the Fair Work Commission was tasked with adjudicating on allegations of sexual harassment, discrimination, and victimisation. The respondent, Peter Clarke, was accused of sexually harassing the complainant, Suellen Paterson, on 11 June 1996, and of subsequently discriminating against and victimising her in the workplace. The primary legal issue before the Commission was whether the allegations of sexual harassment, discrimination, and victimisation were substantiated, and if so, whether appropriate remedies should be ordered.

The Commission examined the evidence presented by both parties and found that the complaint of sexual harassment was substantiated, as the respondent had contravened section 59 of the Discrimination Act 1991. However, the claims of discrimination and victimisation were not substantiated. The Commission concluded that the complainant had failed to establish a causal link between her complaint of sexual harassment and any subsequent adverse action taken against her by the respondent. The Commission found that there was no evidence of a causal connection between the complaint and the reduction in the complainant's work shifts, or any other adverse action taken by the respondent.

The Commission ordered that the respondent pay the complainant $1000 as compensation for the loss and damage suffered as a result of the sexual harassment. The Commission also ordered that the parties bear their own costs. The decision serves as a reminder that employers must take all reasonable steps to prevent sexual harassment in the workplace and that employees who experience sexual harassment have recourse to the Fair Work Commission for relief.

Orders

Orders of the court

THE TRIBUNAL ORDERS:

1. That the Tribunal is satisfied that the Complainant’s complaint against the Respondent in relation to an incident of sexual harassment on 11 June 1996 has been substantiated and that the Respondent contravened

section 59 of the Discrimination Act 1991 (as it stood at that time).

2. That the Respondent pay $1000.00 to the Complainant as compensation for the loss and damage the Complainant suffered as a result of the Respondent’s sexual harassment.

3. That the Complainant’s claim that she was discriminated against, and victimised by, the Respondent, in particular, by the Respondent reducing the shifts of work allocated to her or by her making a complaint against the Respondent, has not been substantiated.

4. That the parties bear their own costs.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.