Franks v Marco's Italian Gourmet Cafe Pty Ltd & Anor [2004] NSWADT 87

Franks v Marco's Italian Gourmet Cafe Pty Ltd & Anor [2004] NSWADT 87

The Tribunal found that Mr Salerno's questions about the applicant's bra size and his comments about the body of a 16 year old work colleague were conduct of a sexual nature and that a reasonable person would have anticipated that the applicant would be offended, humiliated or intimidated, so those matters breached s 22B of the Anti-Discrimination Act 1977. The other alleged or admitted conduct did not amount to an unwelcome sexual advance, unwelcome sexual request, or other conduct of a sexual nature. No sex discrimination case was made out because the applicant did not establish less favourable treatment on the ground of sex. The first respondent was vicariously liable for the second...

Jurisdiction
Australia
Judgment Date
07 May 2004
Procedural Posture
Sex Discrimination in Work Sexual Harassment in Workplace / Principal Matter
Outcome
Application upheld in part; sexual harassment established for two allegations, sex discrimination not made out, and compensation awarded with no order as to costs.
Legal Topics
['sexual Harassment in the Workplace' 'sex Discrimination' 'vicarious Liability of Employer' 'compensation for Discrimination']
['anti Discrimination Law' 'employment Law'] ['sexual Harassment in the Workplace' 'sex Discrimination' 'vicarious Liability of Employer' 'compensation for Discrimination']

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Procedural Posture

Sex Discrimination in Work Sexual Harassment in Workplace / Principal Matter

Legal Issues

  1. 1 ['Whether the second respondent sexually harassed the applicant within the meaning of s 22A and s 22B of the Anti-Discrimination Act 1977.' 'Whether the alleged conduct amounted to sex discrimination within ss 24 and 25 of the Anti-Discrimination Act 1977.' 'Whether the first respondent was vicariously liable for sexual harassment by the second respondent under s 53 of the Anti-Discrimination Act 1977.' 'What remedy should be awarded for the conduct found to breach the Anti-Discrimination Act 1977.']

Ratio Decidendi

The Tribunal found that Mr Salerno's questions about the applicant's bra size and his comments about the body of a 16 year old work colleague were conduct of a sexual nature and that a reasonable person would have anticipated that the applicant would be offended, humiliated or intimidated, so those matters breached s 22B of the Anti-Discrimination Act 1977. The other alleged or admitted conduct did not amount to an unwelcome sexual advance, unwelcome sexual request, or other conduct of a sexual nature. No sex discrimination case was made out because the applicant did not establish less favourable treatment on the ground of sex. The first respondent was vicariously liable for the second...

Court Disposition

Application upheld in part; sexual harassment established for two allegations, sex discrimination not made out, and compensation awarded with no order as to costs.

Orders

  • ['The first and second respondents are to pay the complainant the sum of $2,500.00 within 28 days of the date of this decision by way of compensation for the damage the complainant has suffered by reason of the sexual harassment allegations which have been made out.' 'No order as to costs.']