TURNER and MAUNSELL AUSTRALIA PTY LTD [2006] WASAT 52

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2006] WASAT 52
Act:	EQUAL OPPORTUNITY ACT 1984 (WA)
Case No:	EOA:126/2005	Heard:	20 FEBRUARY 2006 21 FEBRUARY 2006 22 FEBRUARY 2006
Coram:	MS J TOOHEY (SENIOR MEMBER) MS H LESLIE (SENIOR SESSIONAL MEMBER) MR J MCKIERNAN (SESSIONAL MEMBER)	Delivered:	3/03/06
No of pages:	17	Judgment Part:	1 of 1
Result:	No case to answer - application dismissed
Category:	B
PDF Version

Parties:	CAROL BERNADETTE TURNER MAUNSELL AUSTRALIA PTY LTD
Catchwords:	Equal Opportunity Act 1984 (WA) Discrimination on the ground of sex Victimisation Employment Application by respondent to have proceedings dismissed on ground no case to answer No evidence of less favourable treatment within the meaning of s 8 No actual or hypothetical comparator No evidence any unequal treatment related to applicant's sex No case to answer Application dismissed
Legislation:	Equal Opportunity Act 1984 (WA), s 8, s 11, s 67, s 83(4), s 90, s 90(2) State Administrative Tribunal Act 2004 (WA), s 47, s 47(1)(a)
Case References:	Chung v University of Sydney [2001] FMCA 94 Chung v University of Sydney [2002] FCA 186 Dare v Hurley [2005] FMCA 844 Dey v Victorian Railways Commissioners (1949) 78 CLR 62, 91 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, 129 Mooney v Commissioner of Police, New South Wales Police Service (2003) EOC 93-281 Paramasivan v Grant [2001] FMCA 882 Rana v University of South Australia [2004] FCA 559 Nil

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : EQUAL OPPORTUNITY ACT 1984 (WA) CITATION : TURNER and MAUNSELL AUSTRALIA PTY LTD [2006] WASAT 52 MEMBER : MS J TOOHEY (SENIOR MEMBER)

MS H LESLIE (SENIOR SESSIONAL MEMBER)

MR J MCKIERNAN (SESSIONAL MEMBER)

HEARD : 20 FEBRUARY 2006

21 FEBRUARY 2006

22 FEBRUARY 2006

DELIVERED : 3 MARCH 2006 FILE NO/S : EOA 126 of 2005 BETWEEN : CAROL BERNADETTE TURNER

Applicant

AND

MAUNSELL AUSTRALIA PTY LTD

Respondent

Catchwords:

Equal Opportunity Act 1984 (WA) - Discrimination on the ground of sex - Victimisation - Employment - Application by respondent to have proceedings dismissed on ground no case to answer - No evidence of less favourable treatment within the meaning of s 8 - No actual or hypothetical comparator - No evidence any unequal treatment related to applicant's sex - No case to answer - Application dismissed

(Page 2)

Legislation:

Equal Opportunity Act 1984 (WA), s 8, s 11, s 67, s 83(4), s 90, s 90(2)

State Administrative Tribunal Act 2004 (WA), s 47, s 47(1)(a)

Result:

No case to answer - application dismissed

Category: B

Representation:

Counsel:

Applicant : Selfrepresented

Respondent : N/A

Solicitors:

Applicant : Self-represented

Respondent : Gadens Lawyers

Case(s) referred to in decision(s):

Chung v University of Sydney [2001] FMCA 94
Chung v University of Sydney [2002] FCA 186
Dare v Hurley [2005] FMCA 844
Dey v Victorian Railways Commissioners (1949) 78 CLR 62, 91
General Steel Industries Inc v Commissioner for…

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

Case: [2006] WASAT 52
Decision Date: 3 MARCH 2006

CaseChat Overview and Summary

Turner and Maunsell Australia Pty Ltd was involved in a legal dispute with a former employee who alleged discrimination on the ground of sex and victimisation under the Equal Opportunity Act 1984 (WA). The case was heard in the Federal Circuit Court of Australia. The former employee claimed that she had been treated less favourably than her male colleagues, and that this treatment was related to her sex. The respondent, Turner and Maunsell Australia Pty Ltd, sought to have the proceedings dismissed on the ground that there was no case to answer, arguing that there was no evidence of less favourable treatment within the meaning of section 8 of the Act, and that there was no actual or hypothetical comparator to establish a basis for comparison.

The central legal issues that the court had to decide were whether the former employee had provided sufficient evidence to establish a case of discrimination and victimisation under the Act, and whether there was any less favourable treatment that was related to the employee's sex. The court examined the evidence presented to determine whether there was any unequal treatment, and whether this treatment could be linked to the employee's sex. The respondent argued that there was no evidence of less favourable treatment and that any differences in treatment were not related to the employee's sex.

In its reasoning, the court found that there was no evidence of less favourable treatment within the meaning of section 8 of the Act, and that the former employee had not provided an actual or hypothetical comparator to establish a basis for comparison. The court concluded that there was no evidence that any unequal treatment was related to the employee's sex. Therefore, the court held that there was no case to answer, and dismissed the application by the respondent to have the proceedings dismissed. The court's decision was based on the absence of evidence to support the former employee's claims of discrimination and victimisation. The court found that the respondent's application to have the proceedings dismissed on the ground that there was no case to answer should be granted, and accordingly dismissed the application.

Orders

Orders of the court

No case to answer - application dismissed

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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