James v Wild Food Highlands Pty Ltd [2012] NSWADT 111

James v Wild Food Highlands Pty Ltd [2012] NSWADT 111

Ms Roach was joined because the applicant had identified her in the original complaint as a person responsible for the discrimination and as an employer, the President's summary referred to primary and secondary liability including sections 52 and 53, evidence from the applicant and other employees supported that Ms Roach was perceived as the manager or boss, and documents showed Ms Roach describing herself as manager. On that evidence there was an arguable case that Ms Roach had workplace control, knew of the alleged harassment, failed to act, and thereby permitted unlawful conduct within section 52 of the Anti-Discrimination Act 1977. Her conduct as perceived manager was sufficiently...

Jurisdiction
Australia
Judgment Date
07 June 2012
Procedural Posture
Interlocutory Application in Equal Opportunity Division Proceedings Concerning a Complaint of Sexual Harassment in Employment / Application to Join Ms Debbie Roach as a Party to Proceedings
Outcome
Application granted; Ms Debbie Roach joined as respondent to the proceedings.
Legal Topics
['joinder of Parties' 'sexual Harassment in Employment' 'aiding and Abetting or Permitting Unlawful Conduct' 'vicarious Liability of Employer' 'tribunal Jurisdiction and Procedure']
['anti Discrimination Law' 'administrative Law' 'employment Law'] ['joinder of Parties' 'sexual Harassment in Employment' 'aiding and Abetting or Permitting Unlawful Conduct' 'vicarious Liability of Employer' 'tribunal Jurisdiction and Procedure']

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Procedural Posture

Interlocutory Application in Equal Opportunity Division Proceedings Concerning a Complaint of Sexual Harassment in Employment / Application to Join Ms Debbie Roach as a Party to Proceedings

Legal Issues

  1. 1 ['Whether Ms Debbie Roach ought to have been joined as a party or whether her joinder was necessary to the determination of all matters in dispute in the proceedings under section 67(4) of the Administrative Decisions Tribunal Act 1997.' 'Whether the applicant had established an arguable basis that Ms Roach could be liable under section 52 of the Anti-Discrimination Act 1977 for permitting alleged sexual harassment in the workplace.' 'Whether the Anti-Discrimination Act 1977 complaints process before the Anti-Discrimination Board precluded joinder of Ms Roach after referral to the Tribunal.']

Ratio Decidendi

Ms Roach was joined because the applicant had identified her in the original complaint as a person responsible for the discrimination and as an employer, the President's summary referred to primary and secondary liability including sections 52 and 53, evidence from the applicant and other employees supported that Ms Roach was perceived as the manager or boss, and documents showed Ms Roach describing herself as manager. On that evidence there was an arguable case that Ms Roach had workplace control, knew of the alleged harassment, failed to act, and thereby permitted unlawful conduct within section 52 of the Anti-Discrimination Act 1977. Her conduct as perceived manager was sufficiently...

Court Disposition

Application granted; Ms Debbie Roach joined as respondent to the proceedings.

Orders

  • ['Pursuant to section 67(4) of the Administrative Decisions Tribunal Act 1997, Ms Roach is joined as a party to the proceedings.' 'Ms Roach is joined by the Tribunal as respondent to the proceedings.' 'The Applicant is to notify the Registrar of the Tribunal on or before 20 June 2012 that the Applicant has sought...