FEDERAL COURT OF AUSTRALIA
Wroughton v Catholic Education Office Diocese of Parramatta [2015] FCA 1236
Citation: Wroughton v Catholic Education Office Diocese of Parramatta [2015] FCA 1236 Parties: KAREN ALETHEA WROUGHTON v CATHOLIC EDUCATION OFFICE DIOCESE OF PARRAMATTA and THE TRUSTEES OF THE ROMAN CATHOLIC CHURCH FOR THE DIOCESE OF PARRAMATTA File number: NSD 211 of 2015 Judge: FLICK J Date of judgment: 17 November 2015 Catchwords: INDUSTRIAL LAW – termination of employment – adverse action – reverse onus of proof – reasons for action taken did not include improper reasons
HUMAN RIGHTS – discrimination – no jurisdiction of Court in absence of termination of complaint – no complaint made to Human Rights Commission
Legislation: Australian Human Rights Commission Act1986 (Cth), ss 3, 46PO(1)
Fair Work Act2009 (Cth), ss 12, 340, 340(1)(a), 341(1), 341(1)(c), 342, 342(1), 346, 351, 352, 361, 570, 570(2)
Industrial Relations Act1988 (Cth), s 170DF(1)
Sex Discrimination Act1984 (Cth), ss 28A, 28A(1), 28B, 28B(6), 28(B)(7)
Work Health and Safety Act2011 (Cth), ss 12(1), 20
Work Health and Safety Act2011 (NSW), ss 20, 255
Workplace Relations Act1996 (Cth), s 170CK(2)(a)Cases cited: Australian Workers Union v Leighton Contractors Pty Ltd (No 2) [2013] FCAFC 23
Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32, (2012) 248 CLR 500
Country Roads Board v Neale Ads Pty Ltd (1930) 43
CLR 126
Ermel v Duluxgroup (Aust) Pty Ltd (No 2) [2015] FCA 17
General Motors-Holden’s Pty Ltd v Bowling (1976) 51 ALJR 235
Kennewell v MG & CG Atkins (t/as Cardinia Waste & Recyclers) [2015] FCA 716
Khiani v Australian Bureau of Statistics [2011]
FCAFC 109
Momcilovic v The Queen [2011] HCA 34, (2011) 245
CLR 1
National Tertiary Education Union v Royal Melbourne Institute of Technology [2013] FCA 451
RailPro Services Pty Ltd v Flavel [2015] FCA 504
Sperandio v Lynch [2006] FCA 1648
State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184
Tattsbet Ltd v Morrow [2015] FCAFC 62, (2015) 321
ALR 305
Tsilibakis v Transfield Services (Australia) Pty Ltd [2015] FCA 740Date of hearing: 9 and 11 September 2015 Date of last submissions: 23 September 2015 Place: Sydney Division: FAIR WORK DIVISION Category: Catchwords Number of paragraphs: 108 Counsel for the Applicant: The Applicant appeared in person Counsel for the Respondents: Mr D O’Sullivan Solicitor for the Respondents:
Makinson d’Apice Lawyers
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
FAIR WORK DIVISION
NSD 211 of 2015
BETWEEN: KAREN ALETHEA WROUGHTON
ApplicantAND: CATHOLIC EDUCATION OFFICE DIOCESE OF PARRAMATTA
First RespondentTHE TRUSTEES OF THE ROMAN CATHOLIC CHURCH FOR THE DIOCESE OF PARRAMATTA
Second Respondent
JUDGE:
FLICK J
DATE OF ORDER:
17 NOVEMBER 2015
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The proceeding is dismissed.
2.There is no order as to costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
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- AGLC
- Wroughton v Catholic Education Office Diocese of Parramatta [2015] FCA 1236
- Case
- [2015] FCA 1236
- Decision Date
CaseChat Overview and Summary
Wroughton v Catholic Education Office Diocese of Parramatta is a case concerning the termination of employment and allegations of sexual harassment. The applicant, Ms Wroughton, sought relief under the Fair Work Act, the Sex Discrimination Act, and the Commonwealth Work Health and Safety Act against the respondent, the Catholic Education Office Diocese of Parramatta. The primary dispute was whether Ms Wroughton's dismissal was unlawful, particularly in relation to her claims of sexual harassment and adverse action.
The legal issues the court had to decide included whether Ms Wroughton's dismissal was due to her exercising a workplace right, and if her claims under the Sex Discrimination Act and the Commonwealth Work Health and Safety Act were valid. Additionally, the court needed to determine if Ms Wroughton's allegations of sexual harassment met the legal criteria under the Sex Discrimination Act and whether the court had jurisdiction to hear such claims.
The court found that Ms Wroughton's dismissal was not related to her exercising any workplace rights, and therefore her claims under the Fair Work Act failed. The court further concluded that the reasons provided for Ms Wroughton's dismissal did not include any improper reasons, and thus no relief was granted. In relation to the sexual harassment claims, the court held that there was no jurisdiction to grant relief under the Sex Discrimination Act as Ms Wroughton had not made a complaint to the Human Rights Commission. The court also found that the facts presented did not meet the legal criteria for sexual harassment. Consequently, Ms Wroughton's claims under the Sex Discrimination Act and the Commonwealth Work Health and Safety Act were dismissed.
The court dismissed the proceeding and made no order as to costs, as the proceeding did not fall within the limited circumstances specified in section 570(2) of the Fair Work Act for awarding costs against an unsuccessful applicant.
The legal issues the court had to decide included whether Ms Wroughton's dismissal was due to her exercising a workplace right, and if her claims under the Sex Discrimination Act and the Commonwealth Work Health and Safety Act were valid. Additionally, the court needed to determine if Ms Wroughton's allegations of sexual harassment met the legal criteria under the Sex Discrimination Act and whether the court had jurisdiction to hear such claims.
The court found that Ms Wroughton's dismissal was not related to her exercising any workplace rights, and therefore her claims under the Fair Work Act failed. The court further concluded that the reasons provided for Ms Wroughton's dismissal did not include any improper reasons, and thus no relief was granted. In relation to the sexual harassment claims, the court held that there was no jurisdiction to grant relief under the Sex Discrimination Act as Ms Wroughton had not made a complaint to the Human Rights Commission. The court also found that the facts presented did not meet the legal criteria for sexual harassment. Consequently, Ms Wroughton's claims under the Sex Discrimination Act and the Commonwealth Work Health and Safety Act were dismissed.
The court dismissed the proceeding and made no order as to costs, as the proceeding did not fall within the limited circumstances specified in section 570(2) of the Fair Work Act for awarding costs against an unsuccessful applicant.
Orders
Orders of the court
1. The proceeding is dismissed.
2. There is no order as to costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
The Sex Discrimination Act, in such circumstances, confers no jurisdiction upon this Court.Sexual harassment – the facts Separate from any conclusion as to the absence of jurisdiction to grant any relief for sexual harassment pursuant to the Sex Discrimination Act, rather than relief pursuant to the Fair Work Act, there remains a far more persuasive reason to reject this aspect of Ms Wroughton’s claims for relief – at least in respect to the complaint directed against Mr Whitby. The complaint by Ms Wroughton relating to “sexual harassment” was presumably founded upon s 28A(1)(b) of the Sex Discrimination Act, namely “unwelcome conduct of a sexual nature…”. To bring the facts within that provision, Ms Wroughton sought to rely upon a number of events, namely:·an interview in September 2011 with Mr Whitby which was initially conducted in the reception area of the Parmelia Hotel in Perth but transferred to Mr Whitby’s room;·an incident in August 2012 when Mr Whitby told Ms Wroughton to “do the pretty woman thing” when addressing a number of men whom she had apparently upset by comments that she had made; ·an exchange at some time in 2012 when Mr Whitby said to Ms Wroughton that she was “looking particularly fresh today”; and·a number of exchanges when Mr Whitby referred to Ms Wroughton as “Maggie Thatcher” and said: “I bet you don’t have frilly lace around your bed”.In addition to these claims directed to Mr Whitby, there was a further instance relied upon by Ms Wroughton, namely:·an incident in late December 2013 when Ms Wroughton maintains that Mr Peter Ricketts, the new Director of Financial, Administrative and Staff Services, “leered” at her breasts and said: “I think we are going to get along just fine”. For the purposes of resolving a complaint made as to sexual discrimination, it is unnecessary to make findings of fact in respect to each of these instances. The principal complaint as to sexual harassment was that directed to the conduct of Mr Whitby; but the complaint as to sexual harassment by Mr Ricketts should not be ignored. It should, however, be noted, that the facts as they unfolded during the hearing exposed a very different context to that sought to be presented by Ms Wroughton. The September 2011 interview, for example, was moved from the hotel reception area to Mr Whitby’s room simply because there were two other persons participating in that interview (Mr Farley and Dr DeCourcy) by means of “Skype”. The background noise in the foyer was such that neither of those two other participants could hear what was being said. After moving to the hotel room, the “Skype” connection was recommenced and the interview continued. Ms Wroughton sought to put a different complexion upon the facts. In her cross-examination of Mr Whitby, the following exchange thus occurred:… you said to me, “It is all right if we go up to have a meeting in a room upstairs”? No. What actually – Yes? – happened, we met in the lobby.Yes? We started a Skype – No, we didn’t, Greg? We started a Skype and then, you know, it was too busy in that – it was a very small foyer from my memory. Then I did say to you, “Look, this is not working. Can we go upstairs?” And we went upstairs and we continued the Skype.Well, I put it to you that’s not how it occurred. I met you at the lift? You were seated when I walked in.Yes? Now, you were seated – But we met at the lift? – ready to go – Right outside the lift? – and I sat down beside you and after general introductions, “Can we do this?” And that’s how we started. You were seated. You weren’t near – the seats might be near the lift, but you were seated, ready to go. I was pressed for time because I was due in Adelaide and so that’s how we went. That’s my memory. I asked – I clearly asked you if we could carry this on upstairs, “Fine.” We had a bit of a laugh about it then we carried out the interview upstairs.Yes, but not in your bedroom? It was in the room that I was – I mean, I said, “The only place I can think of is my room.” They didn’t have a business centre. I – so I said, “Are you comfortable?” And, “Let’s do this here,” knowing that we had people on the screen and it went for about half an hour and that was it.I put to you, Greg, it did not happen like that? Well, I’m sorry. That’s my recollection.It is concluded that Mr Whitby’s account is to be accepted.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
The present proceeding is not one in which the discretion conferred by s 570 is enlivened. CONCLUSIONS The essential reason why the Applicant’s claims to relief fail is because the reasons for her dismissal were stated by Mr Whitby in his letter terminating her employment as handed to her on 26 November 2014. The reasons for her dismissal had nothing to do with any exercise by Ms Wroughton of a “workplace right”. It is unnecessary, in such circumstances, to resolve Ms Wroughton’s application that there be a separate hearing in respect to the relief to be granted. She is entitled to no relief. Although claims for relief under the Sex Discrimination Act and the Commonwealth Work Health and Safety Act have also been advanced, the claim essentially remains a claim brought under the Fair Work Act. Section 570(2) of the Fair Work Act provides for limited circumstances in which costs may be awarded against an unsuccessful applicant. The present proceeding does not fall within s 570(2). The proceeding should be dismissed with no order as to costs. THE ORDERS OF THE COURT ARE: 1. The proceeding is dismissed. 2. There is no order as to costs.
Ratio Decidendi
Legal Principle Established
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