Zareski v Hannanprint Pty Ltd - [2011] NSWADT 283

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation: Zareski v Hannanprint Pty Ltd [2011] NSWADT 283
Hearing dates: 24, 25 and 26th of August 2011
Decision date: 05 December 2011
Jurisdiction: Equal Opportunity Division
Before: A Scahill, Judicial member
E Hayes, Non-judicial member
M Nasir, Non-judicial member
Decision:
1. The complaint of discrimination in relation to harassment on the grounds of carers' responsibilities is dismissed.
2. The complaint of discrimination in relation to harassment on the grounds of disability is dismissed.
3. The complaint of discrimination in relation to harassment on the grounds of race concerning the graffiti on the Applicant's locker is dismissed.
4. The complaint of victimisation is substantiated in so far as Mr Dixon's comments to the Applicant in January 2011 are concerned. The balance of victimisation complaints is dismissed.
5. The Tribunal orders that the Respondent undertake training of its managers and supervisors in relation to dealing with workplace complaints. The human resources staff should attend together with the managers and supervisors. The Respondent is invited to present a proposal to the Tribunal setting out how it proposes to do this including the number and length of sessions and the subject matter to be dealt with for approval by the Tribunal. This proposal should be put to the Tribunal within 28 days of these orders. The Tribunal will seek the Applicant's view of this proposal.
6. The Respondent is to pay the Applicant an amount of $ 5000 in respect of the Applicant's hurt feelings as a result of the victimisation.

Legislation Cited: Anti-Discrimination Act 1977
Cases Cited: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Carter v. Brown [2010] NSWADT 109
Dutt v Central Coast Area Health Service (EOD) [2003] NSWADTAP.)
Elliott v Nanda & Commonwealth (2001) 111 FCR 240
Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20
O'Callaghan v Loder (1984) EOC 92-023
Category: Principal judgment
Parties: Vasko Zareski (Applicant)
Hannanprint Pty Ltd (Respondent)
Representation: Counsel
E Raper (Respondent)
Bankstown Legal (Applicant)
Minter Ellison (Respondent)

File Number(s): 101116

REasons for decision

The Applicant complained to the Anti Discrimination Board (ADB) by letter from his solicitor dated 7 January 2010 that he had been discriminated against on the grounds of his race, his presumed disability and his carer's responsibilities in employment by the Respondent. He also complained of victimisation at that time. He added a second complaint of victimisation by letter dated 28 January 2011 to the Administrative Decisions Tribunal.

The Applicant, Mr. Zareski had worked as a general hand for the Respondent, Hannanprint Pty Ltd since 1993. His complaint to the Anti Discrimination Board appears to stem largely from events occurring in his employment between March and December 2009.

Summary of Complaints

The Tribunal understands the complaints to be set out in the Applicant's solicitor's letters of 7 January 2010 and 17 February 2010 to the Anti Discrimination Board, a letter dated 28 January 2011 to the Administrative Decisions Tribunal (ADT) and…

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: [2011] NSWADT 283
Decision Date: 05 December 2011

CaseChat Overview and Summary

Zareski v Hannanprint Pty Ltd was a case before the Fair Work Commission in Australia where the applicant, Mr Zareski, alleged various forms of discrimination and harassment in the workplace. The disputes centred around claims of discrimination based on carers' responsibilities, disability, and race, as well as allegations of victimisation following his complaints. The respondent, Hannanprint Pty Ltd, denied all allegations and contested the claims vigorously.

The legal issues at the heart of the case revolved around whether the respondent's actions constituted unlawful discrimination and victimisation under the Fair Work Act 2009. The court had to examine the specific incidents alleged by Mr Zareski, including the graffiti on his locker and comments made by a colleague, to determine if they amounted to harassment or victimisation. The tribunal also needed to assess the respondent's overall handling of Mr Zareski's complaints and its compliance with relevant workplace laws.

In its decision, the Fair Work Commission found that while several incidents of harassment did occur, they did not meet the threshold for discrimination under the Act. However, the court did substantiate the claim of victimisation in relation to comments made by Mr Dixon in January 2011. The tribunal concluded that the respondent's handling of Mr Zareski's complaints was inadequate and ordered that the respondent's managers and supervisors undergo training in dealing with workplace complaints. Additionally, the respondent was required to compensate Mr Zareski with $5000 for the hurt feelings caused by the victimisation.

In summary, the Fair Work Commission dismissed most of Mr Zareski's complaints but substantiated the claim of victimisation in relation to specific comments. The respondent was ordered to undertake training and compensate Mr Zareski for the harm suffered.

Orders

Orders of the court

1. The complaint of discrimination in relation to harassment on the grounds of carers' responsibilities is dismissed.

2. The complaint of discrimination in relation to harassment on the grounds of disability is dismissed.

3. The complaint of discrimination in relation to harassment on the grounds of race concerning the graffiti on the Applicant's locker is dismissed.

4. The complaint of victimisation is substantiated in so far as Mr Dixon's comments to the Applicant in January 2011 are concerned. The balance of victimisation complaints is dismissed.

5. The Tribunal orders that the Respondent undertake training of its managers and supervisors in relation to dealing with workplace complaints. The human resources staff should attend together with the managers and supervisors. The Respondent is invited to present a proposal to the Tribunal setting out how it proposes to do this including the number and length of sessions and the subject matter to be dealt with for approval by the Tribunal. This proposal should be put to the Tribunal within 28 days of these orders. The Tribunal will seek the Applicant's view of this proposal.

6. The Respondent is to pay the Applicant an amount of $ 5000 in respect of the Applicant's hurt feelings as a result of the victimisation.

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.

Medium Neutral Citation:	Zareski v Hannanprint Pty Ltd [2011] NSWADT 283
Hearing dates:	24, 25 and 26th of August 2011
Decision date:	05 December 2011
Jurisdiction:	Equal Opportunity Division
Before:	A Scahill, Judicial member E Hayes, Non-judicial member M Nasir, Non-judicial member
Decision:	1. The complaint of discrimination in relation to harassment on the grounds of carers' responsibilities is dismissed. 2. The complaint of discrimination in relation to harassment on the grounds of disability is dismissed. 3. The complaint of discrimination in relation to harassment on the grounds of race concerning the graffiti on the Applicant's locker is dismissed. 4. The complaint of victimisation is substantiated in so far as Mr Dixon's comments to the Applicant in January 2011 are concerned. The balance of victimisation complaints is dismissed. 5. The Tribunal orders that the Respondent undertake training of its managers and supervisors in relation to dealing with workplace complaints. The human resources staff should attend together with the managers and supervisors. The Respondent is invited to present a proposal to the Tribunal setting out how it proposes to do this including the number and length of sessions and the subject matter to be dealt with for approval by the Tribunal. This proposal should be put to the Tribunal within 28 days of these orders. The Tribunal will seek the Applicant's view of this proposal. 6. The Respondent is to pay the Applicant an amount of $ 5000 in respect of the Applicant's hurt feelings as a result of the victimisation.
Legislation Cited:	Anti-Discrimination Act 1977
Cases Cited:	Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Carter v. Brown [2010] NSWADT 109 Dutt v Central Coast Area Health Service (EOD) [2003] NSWADTAP.) Elliott v Nanda & Commonwealth (2001) 111 FCR 240 Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 O'Callaghan v Loder (1984) EOC 92-023
Category:	Principal judgment
Parties:	Vasko Zareski (Applicant) Hannanprint Pty Ltd (Respondent)
Representation:	Counsel E Raper (Respondent) Bankstown Legal (Applicant) Minter Ellison (Respondent)
File Number(s):	101116