Wattle v Kirkland and Anor.

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WATTLE v KIRKLAND  [2001] FMCA 66

DISCRIMINATION – sex discrimination – sexual harassment and unlawful dismissal found – no finding of vicarious liability – claim against director in personal capacity dismissed because not responsible for acts of co-director

EVIDENCE – where the only evidence for the applicant is from applicant herself and four respondent witnesses to deny allegations the allegations must be proved to the Briginshaw standard – evidence of applicant preferred because of demeanour and corroboration of doctor’s reports – dismissal not motive for allegations where applicant attended doctor before dismissal and no suggestion of prior knowledge of dismissal – discrepancies in stories of respondent witnesses

DAMAGES – where lack of medical evidence about ability to return to work damages for unlawful dismissal not extended beyond six months

Sex Discrimination Act 1984 (Cth) ss 5, 14(2)(c), 28A, 28B(1), 106

Watkins v Fryer & Anor (1995) EOC 92-667 followed
Briginshaw v Briginshaw (1938) 60 CLR 336) followed

Cachia v Hanes (1994) 120 ALR 385 referred to

Applicant: MARGARET JEAN WATTLE

Respondent: RAYMOND KIRKLAND and DAPHNE GERALDINE KIRKLAND
(T/A KIRK’S RADIO CAB)

File No:   SZ 199 of 2001

Delivered on: 6 September 2001

Delivered at: Sydney

Hearing Date: 20 & 21 August 2001

Judgment of: Raphael FM

REPRESENTATION

For the Applicant: Ms Margaret Wattle

Counsel for the Respondent: Mr Williams

Solicitors for the Respondent: Phillip J Kruit

ORDERS

1. Proceedings against DAPHNE GERALDINE KIRKLAND dismissed with no order as to costs.

2. Respondent RAYMOND KIRKLAND to pay the applicant the sum of $24,200.00 by way of damages for breach of ss 5, 14(2)(c), 28A, 28B(1) of the Sex Discrimination Act 1984 (Cth).

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SZ 199 of 2001

MARGARET JEAN WATTLE

Applicant

And

RAYMOND KIRKLAND and DAPHNE GERALDINE KIRKLAND
(T/AS KIRK’S RADIO CAB)

Respondents

REASONS FOR JUDGMENT

What is the nature of the dispute?

1. The applicant, Ms Wattle, was employed for approximately nine weeks from 11 November 1999 until 9 February 2000 as a taxi driver with Kirk’s Cabs of Mudgee.  The applicant alleges that this business is owned by the two named respondents Mr and Mrs Kirkland.  Mr and Mrs Kirkland allege that the business is owned by a company Kirks Enterprises Pty Limited of which they are both directors.

2. The applicant alleges that during the period of her employment she was the subject of unwanted activity and remarks both of a sexual nature from Mr Kirkland. The applicant claims the activities constituted sexual harassment in breach of ss 28A and 28B(1)(a) of the Sex Discrimination Act. The applicant also alleges that when she provided the respondent with a medical certificate indicating she required at least two weeks off work for stress which she says resulted from the harassment, she was improperly dismissed by Mrs Kirkland in breach of s 14(2) SDA.  The applicant claims damages and lost income calculated at the rate of $350.00 per week for forty weeks, a period during which she says she was required to…