Civil Liberties Law

Penny is employed as an executive assistant by Set Engineering Pty Ltd, a firm incorporated in NSW and based in Sydney. The firm has 5 permanent employees and 4 staff employed on a casual basis when there is a need. Penny’s employment started on June 14 2015.In a conversation with a fellow employee on April 15 2016 Penny mentions that she and her partner, Jo, are considering having a child in the future, possibly 2017 or 2018, but no decision has been made on the time-frame. Penny tells her that she and Jo have discussed the various options available to them, including adoption, artificial insemination and having a male friend impregnate one of them. Penny tells her colleague that should they chose to have the child themselves rather than adopt that, because of health issues faced by Jo, it is likely Penny would be the one to be impregnated and carry the child.

On April 20 2016, the Managing Director, Bill Leary, announces at a staff meeting that a contract had just been awarded to them and a major project would be commencing in 2016. Leary states that this contract is make or break for the business and that all staff would be expected to give 110%, and that the business cannot afford disruption and additional costs that would arise if an employee needed to take extended leave for any reason, including family matters or pregnancy. He continued by saying that if any staff was in a position where they might need to take extended leave in 2017 he thinks it would be best for all concerned that they begin looking for another job.

When the date for the 2016 federal election was announced Penny began wearing a ‘marriage equality’ t-shirt to work and changing out of it and into her work uniform as soon as she got to the workplace.

After Penny started wearing the t-shirt, two engineers employed by the firm, Jake and Clinton, began making jokes about lesbians. Penny put up with this for a week, trying to ignore them, but when it continued Penny confronted them about the jokes. Unfortunately, this made the situation worse and Jake and Clinton continued to make jokes, and began to make comments about how lesbians were ‘unnatural’ and were an ‘abomination’. These comments were made where others could hear, including on the factory floor and in the office. On May 25th, as Penny was leaving the office at the end of the day she passed Jake and Clinton outside the front entrance to the building. After she passed them she heard Jake say “they’re only like that because they can’t find a man who will have them’ and then Clinton, at the top of his voice said ‘all they need is a good hard man’ and ‘I’m sure she would love to be raped’. Penny was both shocked and upset but kept walking.

The next day Penny went to see Bill to complain about Jake and Clinton. After telling him of the various incidents he said ‘look, they’re probably just playing around. If you’re going to work where there are men around you have to be able to put up with a bit of joking around. Bill then said to Penny ‘I hear you’re thinking of having a baby’. Penny told Bill that she and her partner were thinking about it. Bill then told Penny that she should maybe start looking for a job elsewhere. He said ‘you’re not happy with the way some people behave and if you decide to have a baby it would cause a lot of disruption’.
On May 28th Penny was called into Bill’s office and told that he was going to restructure the office staff and her position would be abolished. He told her that he was giving her 3 weeks notice but paying her in lieu, so there was no need for her to return the next day.

A week later Penny was looking through for job vacancies when she came across one for Set Engineering. The position description was exactly the same as the description for the position she had held.

Penny discussed this with Jo and they decided to see what they could be done. They spoke to Liam, a solicitor friend, who advised her to take the matter to the NSW Anti-Discrimination Board.

On June 9th Penny lodged a complaint with the NSW Anti-Discrimination, alleging discrimination in employment by Set Engineering on the grounds of pregnancy and homosexuality. Penny also lodged a complaint alleging that she was vilified on the grounds of her homosexuality by Jake and Clinton. The complaint also alleges that Set Engineering, as her employer, failed to act to stop the vilification.

The complaints were investigated by a staff member of the Anti-Discrimination Board. Bill and Jake and Clinton were notified of the complaints Bill responded in an email to the investigator, denying the allegations, but there was no response from Jake or Clinton.
The investigator spoke to Penny and Bill and Bill provided a further written response, denying the allegations. When the investigator attempted to speak with Jake and Clinton they refused to speak to them.

After completing the investigation, a final report was produced. The report found that the allegations had been established and recommended the holding of a Conciliation Conference between all parties in an attempt to settle the matter.

A letter from the Anti-Discrimination Board was sent to Bill, Jake and Clinton advising them of the outcome of the investigation and that there would be a Conciliation Conference called.

On July 1 a notice was sent to Penny, Bill, Jake and Clinton advising them that the date for the Conference was to be July 15. Bill responded advising that, after seeking legal advice, he had decided to not participate in the Conference and would not cooperate with the Board any further. No response was received from Jake or Clinton. Bill, Jake and Clinton all failed to attend the Conciliation Conference.

When advised of this by the Board she asked if there was anything further that could be done. She was advised that she could request that the President of the Board take the matter to the NSW Civil and Administrative Tribunal (NCAT).

The request was sent to the President of the Board who, after reviewing the report into the matter decides to take the matter to NCAT.

After considering the matter and discussing the issues with the Board’s legal staff it is decided that the NCAT will be asked to consider three issues:
1. Whether Set Engineering, through the actions of Bill, had discriminated against her on the grounds of pregnancy
2. Whether Jake and Clinton had vilified her on the basis of her homosexuality
3. Whether Set Engineering, in failing to act to stop the vilification by Jake and Clinton, were vicariously liable for their actions.
You are a solicitor in the Anti-Discrimination Board’s Legal Office (the Applicant) and you are required to prepare the written submissions on these three issues that will be lodged with the NCAT.

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