Waugh v Feledyk

[2022] NSWCATAD 205

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Waugh v Feledyk [2022] NSWCATAD 205

Hearing dates:

17 March 2022

Date of orders:

20 June 2022

Decision date:

20 June 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

C Mulvey, Senior Member

Decision:

(1) Leave for the complaint against Mr Kristian Feledyk is refused.

(2) Leave for the complaint against the Department of Communities and Justice to proceed is refused.

Catchwords:

HUMAN RIGHTS — equal opportunity — whether leave required for complaint to proceed — principles applying to grant of leave

Legislation Cited:

Anti-Discrimination Act 1977 (NSW)

Cases Cited:

Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143

Jones & Anor v Ekermawi [2009] NSWCA 388

Poniatowska v Hickinbotham [2009] FCA 680

Category:

Principal judgment

Parties:

Shana Waugh (Applicant)
Kristian Feledyk (First Respondent)
Department of Communities and Justice (Second Respondent)

Representation:

Mr Pinchen (Applicant)
K Feledyk (First Respondent)
Mr Foran (Second Respondent)

File Number(s):

2022/00008521

Publication restriction:

None

REASONS FOR DECISION

1. Ms Waugh, (the Applicant), was employed by the Department of Communities and Justice (the Second Respondent), commencing in September 2017. Ms Waugh was employed in the position of a Youth Officer. From early 2018, Ms Waugh alleges she was sexually harassed by Mr Kristian Feledyk (the First Respondent) in the workplace. The sexual harassment is alleged to have occurred in what is described as a ‘most severe’ case between July and August 2019.

2. Mr Feledyk worked at the Cobham Youth Justice site in the position of Unit Manager. Mr Feledyk was not the direct manager of Ms Waugh, but Ms Waugh alleges that he had a supervisory role and was her superior.

3. On 4 February 2021, the President at Anti-Discrimination New South Wales (‘the President’) received a complaint from Ms Waugh. The complaint alleges sexual harassment by Mr Feledyk and allegations of race and sex discrimination and sexual harassment against her employer, the Second Respondent.

4. The President decided to accept the complaint for investigation under s 89B of the Anti-Discrimination 1977 (NSW) (“the Act”) for the period 16 February 2018 to 31 July 2018 concerning Mr Feledyk and between 16 February 2018 to 4 February 2021 concerning the second respondent and to decline the complaint on the basis that it is lacking in substance under s 92(1)(a)(i) of the Act.

5. I confirmed with Ms Waugh, Mr Feledyk and the representative for the Second Respondent, Mr Foran the material which was before me for consideration. That material included the bundle referred to the Tribunal from the President.

Complaint against Mr Feledyk

6. Ms Waugh complains that during the period 16 February 2018 to 31 July 2019 she was sexually harassed by Mr Feledyk. She asserts Mr Feledyk approached her in February 2018 in relation to feedback comments about her work performance and negative interactions with other staff.

7. Through these interactions, Ms Waugh alleges that Mr Feledyk started grooming her by exploiting her vulnerability and this culminated in the commencement of a sexual relationship from May…