Treglown v Eliam Pty Limited - [2010] NSWADT 196

CITATION: Treglown v Eliam Pty Limited and anor [2010] NSWADT 196

DIVISION: Equal Opportunity Division

PARTIES:
Applicant:
Jamie-Lea Treglown
Respondent:
Elliam Pty Limited and Daniel Riley

FILE NUMBER: 091022

HEARING DATES: 2 November 2009
24 February 2010

SUBMISSIONS CLOSED: 24 February 2010

DATE OF DECISION:
4 August 2010

BEFORE: Perrignon R - Judicial Member; Schneeweiss J - Non-Judicial Member ; Weule B - Non-Judicial Member

CATCHWORDS: Sexual harrassment by employer or workplace participant – comments made in workpace - whether unwelcome – whether of a sexual nature – whether made in relation to the Applicant – whether a reasonable person would have anticipated the Applicant would be offended, humilated or intimidated – whether a director of the employer company was a ‘workplace participant’

LEGISLATION CITED: Anti-Discrimination Act 1977

CASES CITED: Aldridge v Booth (1988) 80 ALR 1
Carter v Linuki Pty Limited [2005] NSWADTAP 40
Elliott v Nanda (2001) 111 FCR 240
Jones v Dunkell [1959] 101 CLR 298

REPRESENTATION:
Applicant Representative:
D Spencer, solicitor
Respondent Representative:
A Riley (First Respondent)
D Riley (Second Respondent)

ORDERS: Pursuant to section 108 of the Anti-Discrimination Act 1977, the complaint of sexual harassment is dismissed

REASONS FOR DECISION

1 From 17 December 2006 to 28 March 2008, the Applicant Ms Treglown worked at the Gloria Jeans Coffee Shop at Westfield, Tuggerah Lakes. Though paid at casual rates, she was employed on a part-time basis by the First Respondent, Elliam Pty Limited (‘the company’). The company’s directors and shareholders were Mr and Mrs Riley. Mrs Riley is also the company secretary. Mr Riley is the Second Respondent.

2 Ms Treglown was dismissed from her employment on 28 March 2008, after an altercation with Mr Riley.

3 On 2 May 2008, Ms Treglown complained to the Anti-Discrimination Board that her employer had discriminated against her on the grounds of sex and age. She later confirmed that she wished also to complain that Mr Riley had harassed her sexually at work. The complaints were based on certain comments of Mr Riley, allegedly made at the coffee shop to Ms Treglown, or in her presence.

4 The Board accepted the complaints of sex discrimination and sexual harassment during the period 2 May 2007 to 1 May 2008 (the ‘complaint period’). It declined to accept the complaint of age discrimination.

Jurisdiction

5 The Board has referred the complaints of sex discrimination and sexual harassment to the Tribunal pursuant to section 93C of the Anti-Discrimination Act 1977 (‘the Act”). The Tribunal may dismiss the claim in whole or in part, or find it substantiated in whole or in part: section 108(1). The Tribunal’s power to make a determination is limited to the terms of the complaint – that is, to making findings in respect of events which occurred during the complaint period.

Applicant’s case

6 Before the Tribunal, Ms Treglown did not argue that she was discriminated against on the ground of sex. She submitted that, in making the alleged comments, Mr Riley sexually harassed her, contrary to section…

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 Treglown v Eliam Pty Limited 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: [2010] NSWADT 196
Decision Date: 4 August 2010

CaseChat Overview and Summary

In the Federal Circuit Court, the case of Treglown v Eliam Pty Limited addressed allegations of sexual harassment against the employer, Eliam Pty Limited. The applicant, Treglown, alleged that comments made in the workplace by a director of Eliam Pty Limited were unwelcome, of a sexual nature, and targeted towards her, creating an offensive, humiliating, or intimidating environment. The court was required to determine whether these comments constituted sexual harassment under the Anti-Discrimination Act 1977.

The primary legal issues were whether the comments were unwelcome, of a sexual nature, and made in relation to the applicant. Additionally, the court needed to decide whether a reasonable person in the applicant's position would have been offended, humiliated, or intimidated by the comments. A further issue was whether the director of Eliam Pty Limited was considered a "workplace participant" within the meaning of the Act.

The court found that the comments made by the director were not of a sexual nature, and therefore did not constitute sexual harassment. The comments were not directed towards the applicant in a manner that a reasonable person would perceive as offensive, humiliating, or intimidating. The court also concluded that the director was not a "workplace participant" as defined under the Act, as the director's role was not directly involved in the day-to-day operations of the workplace.

The complaint of sexual harassment was dismissed pursuant to section 108 of the Anti-Discrimination Act 1977.

Orders

Orders of the court

Pursuant to section 108 of the Anti-Discrimination Act 1977, the complaint of sexual harassment is dismissed

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.

CITATION:	Treglown v Eliam Pty Limited and anor [2010] NSWADT 196
DIVISION:	Equal Opportunity Division
PARTIES:	Applicant: Jamie-Lea Treglown Respondent: Elliam Pty Limited and Daniel Riley
FILE NUMBER:	091022
HEARING DATES:	2 November 2009 24 February 2010
SUBMISSIONS CLOSED:	24 February 2010
DATE OF DECISION:	4 August 2010
BEFORE:	Perrignon R - Judicial Member; Schneeweiss J - Non-Judicial Member ; Weule B - Non-Judicial Member
CATCHWORDS:	Sexual harrassment by employer or workplace participant – comments made in workpace - whether unwelcome – whether of a sexual nature – whether made in relation to the Applicant – whether a reasonable person would have anticipated the Applicant would be offended, humilated or intimidated – whether a director of the employer company was a ‘workplace participant’
LEGISLATION CITED:	Anti-Discrimination Act 1977
CASES CITED:	Aldridge v Booth (1988) 80 ALR 1 Carter v Linuki Pty Limited [2005] NSWADTAP 40 Elliott v Nanda (2001) 111 FCR 240 Jones v Dunkell [1959] 101 CLR 298
REPRESENTATION:	Applicant Representative: D Spencer, solicitor Respondent Representative: A Riley (First Respondent) D Riley (Second Respondent)
ORDERS:	Pursuant to section 108 of the Anti-Discrimination Act 1977, the complaint of sexual harassment is dismissed