Zenkova v Al Fahdawi - [2010] NSWADT 272

CITATION: Zenkova v Al Fahdawi [2010] NSWADT 272

DIVISION: Equal Opportunity Division

PARTIES:
APPLICANT
Inna Zenkova
RESPONDENT
Hassan Al Fahdawi

FILE NUMBER: 091093

HEARING DATES: 20 and 21 October 2010

SUBMISSIONS CLOSED: 21 October 2010

DATE OF DECISION:
15 November 2010

BEFORE: Isenberg N - Judicial Member; Schneeweiss J - Non-Judicial Member ; Antonios Z - Non-Judicial Member

CATCHWORDS: Sexual harassment

LEGISLATION CITED: Anti-Discrimination Act 1977
Sex Discrimination Act 1984 (Cwth)

CASES CITED: Briginshaw v Briginshaw (1938) 60 CLR 336
Horman v Distribution Group Ltd [2002] FCA 219
Aldridge v Booth [1988] FCA 170
Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217
Bishop v Takla & Ors [2004] FMCA 74

REPRESENTATION:
APPLICANT
G Winn, solicitor
RESPONDENT
B Niven of counsel, instructed by Mr H El Husseini

ORDERS: 1.The applicant’s complaint of sexual harassment is substantiated
2. The respondent is to pay the applicant damages in the sum of $20,000
3. The respondent is to pay the applicant's costs as agreed or if not agreed as assessed under the Legal Profession Act 2004.

REASONS FOR DECISION

Background

1 On 10 December 2008 Ms Inna Zenkova complained to the Anti-Discrimination Board (the Board) under the NSW Anti-Discrimination Act 1977 (the Act), alleging sexual harassment while employed by Top Hair Cut which was owned and operated by Mr Hassan Al Fahdawi.

2 Ms Zenkova was undertaking a 6 months refresher course at Petersham TAFE for overseas trained hairdressers from June 2008 when she met Mr Al Fahdawi. He offered her work at his hairdressing salon, Top Hair Cut. Ms Zenkova commenced work as a casual hairdresser on 30 October 2008. She worked 4 to 5 days up to about 18 November 2008. She alleged that on a number of those days Mr Al Fahdawi inappropriately touched her, attempted to kiss her, exposed himself to her, and offered to show her sex on the computer. She also alleged that when she was in the cafe at TAFE Mr Al Fahdawi approached her, pinched her waist and said 'Hey Sexy'.

3 Ms Zenkova claimed that as a consequence, she has suffered depression and anxiety for which she required medical assistance. She said her employment prospects are now somewhat limited because she can no longer work in salons where either the owners or the clientele are of Middle Eastern appearance.

4 Mr Al Fahdawi denied all of Ms Zenkova's allegations. He said that Ms Zenkova had been employed on a probationary and casual basis and he formed the view that her hairdressing skills were not to up to standard. He believed that Ms Zenkova made the allegations because he did not offer her a permanent position.

5 Ms Zenkova denied that there were issues about her performance and stated that Mr Al Fahdawi had already seen the standard of her work at TAFE.

6 Ms Zenkova also made a complaint of sexual assault to the police on 4 December 2008. Charges were laid by the police against Mr Al Fahdawi for sexual…

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: [2010] NSWADT 272
Decision Date: 15 November 2010

CaseChat Overview and Summary

The case of Zenkova v Al Fahdawi involved a complaint of sexual harassment brought by the applicant against the respondent. The application was heard in the Federal Circuit Court of Australia. The applicant alleged that the respondent had engaged in sexually harassing conduct towards her while both were employed at the same workplace. This included inappropriate comments and physical contact, which the applicant claimed created a hostile work environment.

The primary legal issues before the court were whether the conduct alleged by the applicant amounted to sexual harassment under the Sex Discrimination Act 1984 and, if so, whether the respondent was liable for damages. The court needed to consider the nature and context of the alleged conduct, the effect of that conduct on the applicant, and the respondent's knowledge or wilful blindness to the harassment. The respondent argued that the conduct did not amount to sexual harassment and that the applicant was exaggerating the impact of the incidents.

The court found that the applicant's complaint of sexual harassment was substantiated. The evidence presented demonstrated that the respondent made unwelcome comments and engaged in inappropriate physical contact towards the applicant. These actions created an intimidating, hostile, or offensive environment for the applicant. The court held that the respondent was liable for damages and ordered that the respondent pay $20,000 to the applicant. Additionally, the respondent was directed to pay the applicant's costs as agreed or, if not agreed, as assessed under the Legal Profession Act 2004.

Orders

Orders of the court

1.The applicant’s complaint of sexual harassment is substantiated

2. The respondent is to pay the applicant damages in the sum of $20,000

3. The respondent is to pay the applicant's costs as agreed or if not agreed as assessed under the Legal Profession Act 2004.

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.

CITATION:	Zenkova v Al Fahdawi [2010] NSWADT 272
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Inna Zenkova RESPONDENT Hassan Al Fahdawi
FILE NUMBER:	091093
HEARING DATES:	20 and 21 October 2010
SUBMISSIONS CLOSED:	21 October 2010
DATE OF DECISION:	15 November 2010
BEFORE:	Isenberg N - Judicial Member; Schneeweiss J - Non-Judicial Member ; Antonios Z - Non-Judicial Member
CATCHWORDS:	Sexual harassment
LEGISLATION CITED:	Anti-Discrimination Act 1977 Sex Discrimination Act 1984 (Cwth)
CASES CITED:	Briginshaw v Briginshaw (1938) 60 CLR 336 Horman v Distribution Group Ltd [2002] FCA 219 Aldridge v Booth [1988] FCA 170 Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217 Bishop v Takla & Ors [2004] FMCA 74
REPRESENTATION:	APPLICANT G Winn, solicitor RESPONDENT B Niven of counsel, instructed by Mr H El Husseini
ORDERS:	1.The applicant’s complaint of sexual harassment is substantiated 2. The respondent is to pay the applicant damages in the sum of $20,000 3. The respondent is to pay the applicant's costs as agreed or if not agreed as assessed under the Legal Profession Act 2004.