Tribunal Decisions

Full text of these cases is available from the AustLII (Australasian Legal Information Institute) website
at www.austlii.edu.au

Lang v Nutt
[2004] QADT 37 (23 November 2004)
Member Roney

Ms L alleged she’d been sexually harassed by the General Manager of the club where she was employed. She said Mr N had made unsolicited demands for sexual favours, made remarks with sexual connotations and engaged in an unsolicited act of physical intimacy.

Mr N flatly denied the allegations, claiming that any comments he may have made with a sexual connotation were 'throwaway lines' and 'normal office things', and were reciprocated by Ms L.

The Queensland Anti-Discrimination Tribunal found that Mr N’s conduct amounted to sexual harassment, and awarded damages to Ms L who had since left the club’s employment.

She received WorkCover benefits for several months and was later assessed as having an adjustment disorder with depressed mood, for which she received a lump sum payment of $6055.

It was found that Mr N’s conduct caused Ms L to suffer distress, humiliation, embarrassment and panic attacks. An adjustment disorder developed by Ms L was also attributed to Mr N.

Damages of $40505 were awarded to Ms L, less statutory refunds due to WorkCover and Centrelink. Of this, $24700 comprised economic loss, while the remainder was an award for general damages plus interest.

Gardener v Norcott and CDV Pty Ltd t/as Zoom Fine Food Eatery
[2004] QADT 39 (7 December 2004)
Member Forrest

The Queensland Anti-Discrimination Tribunal ordered a cafe owner to pay a chef $2500 in damages after refusing to consider him for a position because of his age.

The 46 year old man answered an ad for a chef’s position in the cafe. The advertisement noted that it was a 'young team'. When asked his age over the phone Mr G answered 'over 21'. When he went to the cafe to deliver his CV, he was again asked his age, and he told Ms N. She said she would contact him for a trial, but didn’t.

Ms N told the Tribunal she only asked Mr G his age on the phone to find out whether he was a junior or senior for pay purposes. She said the 'young team' notification was because, in her experience, some older workers didn’t like working with young people. When asked in cross-examination to give some instances of this, 'she conceded…she had no such experience.'

Tribunal Member Colin Forrest said he could not award economic compensation for the time out of work because the evidence didn’t support a finding that Ms N had not given Mr G the job because of his age.

It was clear, however, that she’d treated him 'less favourably than a younger person would have been treated in the process of deciding who should be offered the job'. Noting Ms N had refused to apologise and showed 'absolutely no remorse' for her action, the Tribunal found she exacerbated the hurt and humiliation Mr G had suffered by claiming it 'showed weakness in his character', and awarded $2500 damages.

N on behalf of N v State of Queensland (acting through the Department of Education and the Arts)
[2005] QADT 3 (3 February 2005)
Member Jean Dalton SC

The complaint was brought by a mother on behalf of her son, alleging that he was discriminated against on the ground of his impairment in the area of education. She was not legally represented, and acted on her own behalf.

The child (who attended a state school) was said to have the following impairments:

• speech/language impairment
• attention deficit hyperactive disorder
• social and cognitive deficits
• general learning disabilities

The mother alleged that the child was subjected to bullying by other children in the form of 'pushing and shoving, taunting and tormenting, and being called names', and this persisted despite numerous complaints by her to the school.

She said that on one occasion the child struck a fellow student who was allegedly bullying him. As a result, he was suspended from school for four days. It was claimed that this was too harsh, and that the school had failed to make proper accommodation or adjustment for children with impairments such as this child’s.

A claim of indirect discrimination was also made. It was alleged that in failing to provide supervision and monitoring of bullying behaviour, and thereby sanctioning it, the school imposed a term that children with disabilities such as this child’s, could not attend school without being subjected to significant bullying.

The respondent sought to have the complaint dismissed because it 'discloses no reasonable cause of action, is embarrassing, frivolous, vexatious, misconceived or lacking in substance'.

The Member made allowance for the fact that the complainant was self represented and allowed her to provide witness statements rather than pleadings. She noted: 'When a party acts for themself they will often not produce documents, or evidence, to the standard which lawyers will.'

Member Dalton declined to dismiss the complaint, but ordered the complainant to file the evidence relating to her child’s impairment that she intends to rely on, and a statement of the relief sought.

The respondent was also ordered to file evidence on which it will rely at the hearing of the matter.

The matter was set down for further review.

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