Du Bois-Hammond v Ariel, Cole and Raging Thunder Pty Ltd
Heard by: Member Tracy Fantin
The complainant was a 36 year old woman who had worked for an adventure tourism
operator in Cairns for about three years. She took maternity leave and a week before her
proposed return, was advised that her former position no longer existed due to a restructure.
The restructure was said to be for economic and operational reasons. Two newly created
positions emerged from the restructure, but she was not considered for either. It was
contended that there was no offer of suitable alternative work. A complaint of discrimination
on the grounds of pregnancy and parental status was lodged.
Member Tracy Fantin described the human resource processes employed by the respondent in the
return to work issue as 'far from ideal' . She also accepted that 'although
there may be some criticism of the way in which the redundancy was effected from an
industrial perspective, that did not of itself render the conduct discriminatory.'
It was the failure to consider the complainant for one of the newly created positions that the
Member found discriminatory. The second named respondent was found to be not responsible for this.
She said: 'The only reasonable inference which can be drawn, considering all the evidence, is
that Mr Ariel failed to select or even to consider the complainant for the 2IC position because she was
absent from the office on maternity leave… There is no other probable or credible explanation
for Mr Ariel’s conduct available on the evidence.'
The Member also found that the taking of maternity leave shortly before the birth of a
child is a characteristic of pregnancy — but not of parental status. The taking of
parental leave is a characteristic of parental status and family responsibilities.
Member Fantin found direct discrimination on the grounds of pregnancy and parental status
by failing to consider employing the complainant in one of the newly created positions, or
offering a suitable alternative position.
A total award of $26,750.00 was made against the first and third respondents, comprising:
— general damages $10,000
— loss of income $14,547 and interest $2,209
— future economic loss was declined.
Molesworth v Campbell and Patcono Pty Ltd
Heard by Member Jean Dalton
The complainant was an Aboriginal man who lived in a small country town of about
50 inhabitants. The respondent ran the hotel which was in fact owned by the company
Patcono Pty Ltd of which his wife was a director.
The complainant went to the hotel one morning to discuss with the respondent the
possibility of setting up a progress association or committee aimed at attracting tourists to the
town. During the course of the conversation the respondent flew into a rage and took
a meat cleaver from under the bar and said words to the effect that he was going to split
Mr M down the middle. He did not actually touch Mr M, but said that he was barred
from the hotel in future. The respondent pleaded guilty to a charge of possessing a
knife in a public place at a hearing in the Magistrates Court.
The complainant submitted that the respondent called him 'abo'
or 'an abo' or 'Martin the Abo' on many occasions
over a period of about two years. Member Dalton found that
use of the term 'abo' and the incident with the meat
cleaver constituted discrimination on the grounds of Mr M’s
race and the attributes Mr C presumed him to have because of
his race.
The Member noted that both parties bore a deep enmity towards each other, attempting to
besmirch each other’s character generally. However Mr M was found to be the more
reliable witness. Mr C constantly taunted the complainant with sarcasm and insinuation,
accused him of mental instability and yet provided almost no substantive factual material
by way of evidence. This hearing had been delayed for a considerable time because the
respondent claimed to be unfit to attend the hearing. The Member noted that he appeared
to be very alert and completely cognisant during the hearing, as evidenced by 'his verbal
sparring, sarcasm and wordplay'.
Compensation of $30,000 was awarded as well as interest of $1,500 on this amount. A further
amount of $450 (being $154 airfare and $249 accommodation expenses) was awarded.
Peters v Constance
Heard by A/President Jean Dalton
The complainant works as a drag queen, Tamara Tonite, and hosts a well-known
television show. He alleged vilification on the basis of his sexuality.
The respondent worked for a debt collection agency and went to Mr Peters’ home in the
course of his work. Mr Peters alleged that when he refused to open the door, the respondent
loudly abused him from the front of his suburban home, calling him a 'gutless wonder' and
a 'paedophile'. Mr Peters also alleged the respondent said he would see him at a well-known gay hotel
in Brisbane.
A/President Dalton accepted Mr Peters’ version
of events, and was satisfied that paedophilia is a characteristic
often wrongly attributed to homosexual men. Together with the
reference to the hotel, she was satisfied that the comments
were made on the grounds of the complainant’s sexuality.
In determining whether the acts were public, she accepted that
'the neighbours in the vicinity were likely to have heard what
went on outside the front of his house that morning.'
In considering
whether the comments were capable of inciting hatred, serious
contempt for, or severe ridicule of Mr Peters, Ms Dalton said:
'I bear in mind that an accusation of paedophilia is a very
serious accusation and one likely to cause serious damage to
the complainant’s relations with anyone who overheard it. It
is sufficient to incite hatred, serious contempt or severe ridicule
of the person to whom it was directed.'
$3,000 was awarded to
the complainant for his distress. In awarding this amount Ms
Dalton was mindful that the complainant had settled a claim
with the respondent’s employer at the Anti-Discrimination Commission
prior to the hearing at the Tribunal.
Lang v Nutt
Heard by Member Peter Roney
The complainant alleged that she had been sexually harassed by the general manager of
the club where she was employed. The complaint against the club which was the
employer of both parties was resolved prior to hearing and proceeded against the individual
respondent only. She said he had made unsolicited demands for sexual favours, made
remarks with sexual connotations and engaged in an unsolicited act of physical intimacy
resulting in a charge of common assault with the police. Her attendance at a trade fair in
Sydney was said to have been conditional on her agreeing to share 'a room and bed' with
the general manager. When she was asked — on a daily basis — what she had decided, the
complainant said she acted in a haughty, confident or dismissive way to get around the
issue, or tried to laugh it off.
The respondent 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 the complainant.
Member Roney stated 'Although there may have been a level of sexual banter and
innuendo engaged in by both the complainant and the respondent, I find that none of that
conduct amounted to solicitation or encouragement of Nutt,in any legitimate way,
for his conduct toward the complainant. It would have been obvious to him that his
advances were unwelcome and that he was attempting to use a position of influence over
her to persuade her to engage in consensual sexual activity with him. I find that the
respondent’s conduct caused the complainant distress, humiliation and embarrassment and
that it brought on a bout of panic attacks. The necessity to recount the incidents in question
to various medical practitioners, and in the course of preparing this matter for hearing, has
been an emotional experience and caused additional distress for the complainant.' It was
found that the conduct caused the complainant to suffer distress, humiliation, embarrassment
and panic attacks.
The complainant left work and 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. The adjustment disorder was found to be the result
of sexual harassment at work.
It was acknowledged by the complainant that she had a history of panic attacks, but had
been free of them for 6 years prior to the events complained of. The Member noted that
the complainant had a 'special susceptibility to anxiety or panic attacks.' He went on to
state: 'that does not either excuse the respondent, or diminish his responsibility for
the consequences of his action. Applying the so-called "eggshell skull" rule, the
respondent must take the complainant as he finds her. The fact that she had a special susceptibility
does not reduce the compensation she ought receive.'
Damages of $40,505 were awarded to the complainant, less statutory refunds due to
WorkCover and Centrelink. Of this, $24,700 comprised economic loss, while the remainder
was an award for general damages plus interest.
