Fricke v Whyburn [2003] NSWADT 10

Fricke v Whyburn [2003] NSWADT 10

The Tribunal found on balance that the physical contact alleged by Mr Fricke occurred, but that Mr Whyburn's contact was an unconscious and not deliberate act in the course of a professional discussion. Because the conduct was not deliberate, Mr Whyburn did not make a sexual advance or engage in conduct of a sexual nature within s 22A, and Mr Fricke failed to establish a breach of the Anti-Discrimination Act 1977. The complaint was therefore unsubstantiated and dismissed under s 113(1)(a).

Jurisdiction
Australia
Judgment Date
17 January 2003
Procedural Posture
Sexual Harassment Complaint Concerning Goods and Services Under the Anti Discrimination Act 1977 / Principal Matter; Inquiry After Referral to the Tribunal
Outcome
Complaint dismissed as unsubstantiated.
Legal Topics
['sexual Harassment in Provision of Legal Services' 'conduct of a Sexual Nature' 'unwelcome Physical Contact' 'deliberate Conduct' 'de Minimis Conduct' 'costs in Equal Opportunity Proceedings']
['anti Discrimination Law' 'equal Opportunity' 'sexual Harassment'] ['sexual Harassment in Provision of Legal Services' 'conduct of a Sexual Nature' 'unwelcome Physical Contact' 'deliberate Conduct' 'de Minimis Conduct' 'costs in Equal Opportunity Proceedings']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Sexual Harassment Complaint Concerning Goods and Services Under the Anti Discrimination Act 1977 / Principal Matter; Inquiry After Referral to the Tribunal

Legal Issues

  1. 1 ['Whether the alleged physical contact by Mr Whyburn occurred.' 'Whether the physical contact was an unwelcome sexual advance or other unwelcome conduct of a sexual nature within s 22A of the Anti-Discrimination Act 1977.' "Whether conduct that is not ordinarily sexual may be conduct of a sexual nature where the respondent knows of the complainant's particular perception or sensitivity." 'Whether liability for sexual harassment requires deliberate conduct rather than unconscious or involuntary conduct.' 'Whether any conduct was so trifling as to be dismissed as de minimis.' 'Whether a costs order should be made.']

Ratio Decidendi

The Tribunal found on balance that the physical contact alleged by Mr Fricke occurred, but that Mr Whyburn's contact was an unconscious and not deliberate act in the course of a professional discussion. Because the conduct was not deliberate, Mr Whyburn did not make a sexual advance or engage in conduct of a sexual nature within s 22A, and Mr Fricke failed to establish a breach of the Anti-Discrimination Act 1977. The complaint was therefore unsubstantiated and dismissed under s 113(1)(a).

Court Disposition

Complaint dismissed as unsubstantiated.

Orders

  • ['Pursuant to s113(1)(a) the complaint is dismissed.']