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TRIBUNAL DECISIONS
Case ReportsHopper v. Mount Isa Mines Limited & Ors.
Hopper v. Mount Isa Mines Limited & Ors Background of the Complaint In January 1992, the complainant was employed by Mount Isa Mines (MIM) as an apprentice diesel fitter mechanic at Mt Isa. She claimed that from September 1992 until her resignation in April 1994 she was subjected to sexual harassment and discrimination on the basis of her sex. The sexual harassment she complained of included derogatory sexual comments about her made by male apprentices and employees; displays of pictures of nude women on the walls and lockers of the underground work area; graffiti on the walls about her; and being required to use non-separate gender toilets underground that had no toilet doors and afforded little privacy. The sexual discrimination she complained of included her only being given menial tasks compared to the male apprentices; not allowing her to work in areas outside of the workshop (unlike male apprentices); and facing prejudice from co-workers and certain supervisors because she was a woman. The extent of the harassment was quite severe, enduring and constant. Medical evidence showed that the complainant had developed psychological problems which caused a physical manifestation in the form of a serious dermatological condition. Outcome The Tribunal found that the complainant had suffered sexual harassment and sex discrimination, and that Mt Isa Mines was vicariously liable for that conduct because it had failed to take reasonable steps prior to April 1994 to prevent their employees contravening the Act. The complainant was awarded damages totalling $48,724.10, being $10,000 for hurt and humiliation, $33,674 loss of income, $5,050 interest on loss of income, and costs. This ruling is an extremely important landmark on the interpretation of an employer’s vicarious liability. Although MIM developed a sexual harassment policy, senior management attended a training course and briefing sessions were held for employees with supervisory responsibility, the Tribunal held that this was not sufficient. Following a similar ruling of the federal Commission (Evans v Lee), the Tribunal held that the responsibility of the employer is not simply to introduce policies, but to take reasonable steps to ensure that those policies are disseminated and implemented, particularly when the employer has some forewarning that the organisation has key target work areas where sexual harassment might fester. An appeal against the decision has been filed in the Supreme Court of Qld, and is awaiting hearing.
D v. G & O Pty Ltd Background of the Complaint D, an Aboriginal woman, telephoned the respondent in relation to an advertisement in the North West Star Newspaper, in which he had advertised a unit for rent. The complainant stated that she went to meet the respondent to inspect the unit. As soon as he saw her he told her that since she had telephoned him, he had rented the flat to another person. She did not believe the respondent. She asked a relative to telephone the respondent to enquire as to the availability of the flat. On doing so, her relative was informed by the respondent that the flat was still available. The respondent argued that the unit had been taken by another person prior to him meeting the complainant but that tenant had failed to show up, and that as a consequence the unit had been put back on the rental market at the time he received the telephone call from the complainant’s relative enquiring about the availability of the unit. The complainant alleged the respondent had discriminated against her on the basis of race, in the area of pre accommodation. Outcome The Tribunal found that the respondent, when he realised the complainant was Aboriginal, decided to tell her the flat was unavailable. The Tribunal found that the complainant’s relative had telephoned the respondent on the same day as the meeting between the complainant and respondent, and there was no reliable or credible evidence that the unit was not available in the afternoon but was available that evening. The respondent was found to have treated the complainant less favourably on account of her race in contravention of the Act. The complainant was awarded $9,000 in damages and costs. The Tribunal made some noteworthy observations about race discrimination. When analysing race discrimination, one must look at the circumstances in their entirety rather than as separate or isolated incidents. Of its very nature, racial discrimination is ordinarily something which is manifested indirectly and proved where it exists by evidence normally called circumstantial. A Tribunal of fact should decide whether to accept the evidence of a particular fact not by considering the evidence directly relating to that fact in isolation, but in light of the whole of the evidence, and draw on inference from a combination of facts none of which viewed alone, might support that inference.
P v. Director General, Department of Education Background of the Complaint P, a ten year old child, was born with Trisomy 21, commonly known as Down Syndrome. In 1993 and 1994 he attended Grades 1 & 2 at a Queensland State School. On 11 April 1995, after a series of meetings between the school and P’s mother, P’s mother received a letter from the Executive Director, Northern Region, Department of Education stating that the placement committee had recommended P be enrolled at the local Special School. The reasons given in the letter were that there was evidence that his current placement was not conducive to the implementation of his education program and that his attendance at the local state school resulted in unjustifiable hardship for the school community. P’s mother, acting on P’s behalf, complained that P had been discriminated against on the basis of impairment, by being excluded from attending the local state school. Outcome The Tribunal concluded that the action to place P at the Special School constituted direct discrimination on the grounds of impairment. However, the respondent had proved on the balance of probabilities the exemption under s.44 of the Anti-Discrimination Act 1991. The discrimination was not unlawful because the supply of the special services and facilities to keep P at the local state school would have imposed unjustifiable hardship on the respondent. The complaint was dismissed.
JM v. QFG & GK & the State of Queensland Background of the Complaint JM is a young woman who had been living in a stable, exclusive lesbian relationship for four years. She and her partner wished to have and raise children together. In May 1994, she went to see Dr GK at QFG, a group of doctors specializing in infertility. JM was refused treatment by Dr GK because she was a lesbian and in a stable and exclusive relationship with another woman. Outcome A major issue in the case was what definition of "infertility" should be used to determine the case. The Tribunal, after reviewing the definition of infertility used by the Australian guidelines and Health Ethics Committee of the National Health & Medical Research Council came to the view that infertility is a complex condition featuring a combination of both physical and socio-cultural dimensions, and is not a medical condition alone. The Tribunal found that Dr GK had adopted a definition of infertility which was discriminatory, and that the definition he had adopted was neither medically necessary or prescribed by any guidelines by which Dr GK was bound. The Tribunal found both direct and indirect discrimination against JM, ordered that the first and second respondents not commit a further contravention of the Act against her, and awarded her $7,500 damages and costs. The State of Queensland was found to have no liability under the Act. The first and second respondent have appealed against the decision, and it is currently before the Supreme Court of Queensland.
Beau v. PR Exhibitions Pty Ltd Background of the Complaint The complainant alleged she was the subject of discrimination as a visitor to the Queensland Gift Fair, a trade exhibition organised by the respondent in 1995 when she was not permitted to bring a stroller into the Fair for the purpose of carrying her 10 month old baby. The Fair is a wholesale buying event for the gift and homewares industry, and for trade only. The general public is not admitted and visitors must produce bona fide business credentials to register. Children under 15 are not allowed in the Gift Fair. Buyers with babies were permitted to carry babies in arms, sling or backpack/papoose. Strollers and prams were not permitted. Outcome The Tribunal found the complainant had succeeded in proving indirect discrimination on the basis of parental status. The term imposed upon her that she be required to carry her baby (and not make use of a pram or stroller), was a term that she did not have the ability to comply with in any practical sense. Her inability to comply was a direct consequence of her situation as a parent, and the term was one with which a higher proportion of non parents were clearly able to comply. The Tribunal found that it was not reasonable to require visitors with babies to carry them at all times, or conversely, not to use a pram or stroller. The Tribunal awarded the complainant compensation in the sum of $150 and costs on the Magistrates Court Scale A. back to story list | next story |
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