Linnell v Seachem Australia Pty Ltd [2011] NSWADT 61

Linnell v Seachem Australia Pty Ltd [2011] NSWADT 61

The Applicant did not prove on the balance of probabilities that Ms Humphreys made the alleged comment, because the only direct supporting statement was brief, unsworn and untested, while Ms Humphreys gave sworn evidence and was cross-examined. Even if the comment had been made, the Tribunal would have had difficulty finding that a single abusive remark made in the Applicant's absence was conduct of a sexual nature for s 22A. The victimisation claim also failed because the evidence did not establish that the Respondent failed to respond to the complaint, that the Applicant was treated differently after the complaint, or that the complaint was a real, genuine or true reason for...

Jurisdiction
Australia
Judgment Date
25 March 2011
Procedural Posture
Application Alleging Sexual Harassment and Victimisation Under the Anti Discrimination Act 1977 / Principal Judgment After Hearing
Outcome
The application is dismissed.
Legal Topics
['sexual Harassment' 'victimisation' 'workplace Complaint' 'termination During Probation' 'onus of Proof' 'causation']
['anti Discrimination Law' 'employment Law'] ['sexual Harassment' 'victimisation' 'workplace Complaint' 'termination During Probation' 'onus of Proof' 'causation']

Case Brief

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Procedural Posture

Application Alleging Sexual Harassment and Victimisation Under the Anti Discrimination Act 1977 / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether Ms Humphreys made the alleged comment that the Applicant said constituted sexual harassment.' 'Whether the alleged comment, if made, constituted conduct of a sexual nature under s 22A of the Anti-Discrimination Act 1977.' 'Whether the Respondent victimised the Applicant by failing to respond to her complaint, treating her differently, or terminating her employment because she complained about the alleged comment.' "Whether there was a causal link between the Applicant's complaint and any detriment suffered."]

Ratio Decidendi

The Applicant did not prove on the balance of probabilities that Ms Humphreys made the alleged comment, because the only direct supporting statement was brief, unsworn and untested, while Ms Humphreys gave sworn evidence and was cross-examined. Even if the comment had been made, the Tribunal would have had difficulty finding that a single abusive remark made in the Applicant's absence was conduct of a sexual nature for s 22A. The victimisation claim also failed because the evidence did not establish that the Respondent failed to respond to the complaint, that the Applicant was treated differently after the complaint, or that the complaint was a real, genuine or true reason for...

Court Disposition

The application is dismissed.

Orders

  • ['The application is dismissed.']