ABC v DEF Restaurant and GHI [2014] NSWCATAD 140

ABC v DEF Restaurant and GHI [2014] NSWCATAD 140

The Tribunal accepted ABC's account of the events on 31 July 2012, supported by her consistent contemporaneous complaint to her daughter, her evidence to the Tribunal, and the psychological evidence, and rejected GHI's denial as improbable. GHI's first touching of ABC's breast and his second attempt to touch her breast after she said no were unwelcome sexual advances that a reasonable person would have anticipated would offend, humiliate or intimidate ABC, and therefore breached s 22B of the Anti-Discrimination Act 1977. Because GHI was acting in the workplace and presenting as the principal of DEF Restaurant, the First Respondent or proprietor was vicariously liable under s 53. ABC...

Jurisdiction
Australia
Judgment Date
16 September 2014
Procedural Posture
Complaint Alleging Sexual Harassment in Employment Under the Anti Discrimination Act 1977 / Principal Judgment After Hearing
Outcome
Application upheld in part; compensation awarded for breaches of the Anti-Discrimination Act 1977 and no order as to costs.
Legal Topics
['sexual Harassment' 'vicarious Liability' 'workplace Conduct' 'damages' 'suppression Order']
['anti Discrimination Law' 'employment Law'] ['sexual Harassment' 'vicarious Liability' 'workplace Conduct' 'damages' 'suppression Order']

Case Brief

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Procedural Posture

Complaint Alleging Sexual Harassment in Employment Under the Anti Discrimination Act 1977 / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether GHI sexually harassed ABC in employment on 31 July 2012 within the meaning of the Anti-Discrimination Act 1977.' 'Whether the conduct found proved constituted unwelcome sexual advances contrary to s 22B of the Anti-Discrimination Act 1977.' "Whether the First Respondent or proprietor of DEF Restaurant was vicariously liable under s 53 of the Anti-Discrimination Act 1977 for GHI's conduct." 'What compensation, if any, should be awarded for the proven breaches.']

Ratio Decidendi

The Tribunal accepted ABC's account of the events on 31 July 2012, supported by her consistent contemporaneous complaint to her daughter, her evidence to the Tribunal, and the psychological evidence, and rejected GHI's denial as improbable. GHI's first touching of ABC's breast and his second attempt to touch her breast after she said no were unwelcome sexual advances that a reasonable person would have anticipated would offend, humiliate or intimidate ABC, and therefore breached s 22B of the Anti-Discrimination Act 1977. Because GHI was acting in the workplace and presenting as the principal of DEF Restaurant, the First Respondent or proprietor was vicariously liable under s 53. ABC...

Court Disposition

Application upheld in part; compensation awarded for breaches of the Anti-Discrimination Act 1977 and no order as to costs.

Orders

  • ['The Tribunal awards the sum of $5,000 to the Applicant against each of the Respondents, GHI and PQR as proprietor of the DEF restaurant, for the breaches made out by her of the Anti-Discrimination Act. That is a total of $10,000.' 'In accordance with the practice of the tribunal, the tribunal makes no order as to...