McCoy v Lever [2008] NSWADT 206

The complaint against Mr Lever was a separate complaint that remained on foot despite settlement or withdrawal as against Dairy Farmers, because Ms McCoy's complaint materials specifically referred to Mr Lever and the ADB notified and referred the complaint against him. Applying exceptional caution and taking Ms McCoy's case at its highest, most sexual harassment allegations should proceed, but the home telephone calls and visit in June/July 2006 could not be characterised as unwelcome conduct of a sexual nature and were dismissed as sexual harassment. Those same allegations could, at their highest, constitute victimisation and therefore remained on foot as victimisation. The vilification...

Jurisdiction: Australia
Judgment Date: 01 August 2008
Procedural Posture: Anti Discrimination Complaint Alleging Sexual Harassment, Vilification and Victimisation in Employment / Preliminary Application by the Respondent Under Section 102 of the Anti Discrimination Act 1977 to Dismiss Complaints as Frivolous, Vexatious, Misconceived or Lacking in Substance
Outcome: The respondent's section 102 application succeeded in part: the sexual harassment complaint concerning telephone calls and a visit during Ms McCoy's absence from work was dismissed, all vilification complaints were dismissed, the withdrawal of the unidentified telephone calls complaint was noted, costs were...
Legal Topics: ['sexual Harassment' 'victimisation' 'vilification' 'summary Dismissal of Complaint' 'preliminary Application']

['anti Discrimination Law' 'employment Law' 'administrative Law'] ['sexual Harassment' 'victimisation' 'vilification' 'summary Dismissal of Complaint' 'preliminary Application']

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Procedural Posture

Anti Discrimination Complaint Alleging Sexual Harassment, Vilification and Victimisation in Employment / Preliminary Application by the Respondent Under Section 102 of the Anti Discrimination Act 1977 to Dismiss Complaints as Frivolous, Vexatious, Misconceived or Lacking in Substance

Legal Issues

1 ["Whether there was a separate complaint against Mr Lever and whether it was terminated by Ms McCoy's withdrawal of her complaint against Dairy Farmers." 'Whether the sexual harassment complaints against Mr Lever should be dismissed under section 102 of the Anti-Discrimination Act 1977.' 'Whether complaints of vilification against Mr Lever disclosed an unlawful vilification ground under the Anti-Discrimination Act 1977.' "Whether allegations about Mr Lever's attendance at Ms McCoy's home and telephone calls could remain as a victimisation complaint." "Whether unidentified telephone calls to Ms McCoy's home in late July 2006 remained in issue."]

Ratio Decidendi

Court Disposition

The respondent's section 102 application succeeded in part: the sexual harassment complaint concerning telephone calls and a visit during Ms McCoy's absence from work was dismissed, all vilification complaints were dismissed, the withdrawal of the unidentified telephone calls complaint was noted, costs were...

Orders

["The complaint of sexual harassment against Mr Lever relating to telephone calls and the visit to Ms McCoy's home during Ms McCoy's absence from work referred to in paragraphs 21 to 28 is dismissed pursuant to section 102 of the ADA" 'All complaints of vilification against Mr Lever are dismissed pursuant to section...