Civil Liberties Law

Penny is employed as an executive assistant by Set Engin” rel=”nofollow”>ineerin” rel=”nofollow”>ing Pty Ltd, a firm in” rel=”nofollow”>incorporated in” rel=”nofollow”>in NSW and based in” rel=”nofollow”>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 considerin” rel=”nofollow”>ing havin” rel=”nofollow”>ing a child in” rel=”nofollow”>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, in” rel=”nofollow”>includin” rel=”nofollow”>ing adoption, artificial in” rel=”nofollow”>insemin” rel=”nofollow”>ination and havin” rel=”nofollow”>ing 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 Managin” rel=”nofollow”>ing Director, Bill Leary, announces at a staff meetin” rel=”nofollow”>ing that a contract had just been awarded to them and a major project would be commencin” rel=”nofollow”>ing in” rel=”nofollow”>in 2016. Leary states that this contract is make or break for the busin” rel=”nofollow”>iness and that all staff would be expected to give 110%, and that the busin” rel=”nofollow”>iness cannot afford disruption and additional costs that would arise if an employee needed to take extended leave for any reason, in” rel=”nofollow”>includin” rel=”nofollow”>ing family matters or pregnancy. He contin” rel=”nofollow”>inued by sayin” rel=”nofollow”>ing that if any staff was in” rel=”nofollow”>in a position where they might need to take extended leave in” rel=”nofollow”>in 2017 he thin” rel=”nofollow”>inks it would be best for all concerned that they begin” rel=”nofollow”>in lookin” rel=”nofollow”>ing for another job.

When the date for the 2016 federal election was announced Penny began wearin” rel=”nofollow”>ing a ‘marriage equality’ t-shirt to work and changin” rel=”nofollow”>ing out of it and in” rel=”nofollow”>into her work uniform as soon as she got to the workplace.

After Penny started wearin” rel=”nofollow”>ing the t-shirt, two engin” rel=”nofollow”>ineers employed by the firm, Jake and Clin” rel=”nofollow”>inton, began makin” rel=”nofollow”>ing jokes about lesbians. Penny put up with this for a week, tryin” rel=”nofollow”>ing to ignore them, but when it contin” rel=”nofollow”>inued Penny confronted them about the jokes. Unfortunately, this made the situation worse and Jake and Clin” rel=”nofollow”>inton contin” rel=”nofollow”>inued to make jokes, and began to make comments about how lesbians were ‘unnatural’ and were an ‘abomin” rel=”nofollow”>ination’. These comments were made where others could hear, in” rel=”nofollow”>includin” rel=”nofollow”>ing on the factory floor and in” rel=”nofollow”>in the office. On May 25th, as Penny was leavin” rel=”nofollow”>ing the office at the end of the day she passed Jake and Clin” rel=”nofollow”>inton outside the front entrance to the buildin” rel=”nofollow”>ing. After she passed them she heard Jake say “they’re only like that because they can’t fin” rel=”nofollow”>ind a man who will have them’ and then Clin” rel=”nofollow”>inton, 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 walkin” rel=”nofollow”>ing.

The next day Penny went to see Bill to complain” rel=”nofollow”>in about Jake and Clin” rel=”nofollow”>inton. After tellin” rel=”nofollow”>ing him of the various in” rel=”nofollow”>incidents he said ‘look, they’re probably just playin” rel=”nofollow”>ing around. If you’re goin” rel=”nofollow”>ing to work where there are men around you have to be able to put up with a bit of jokin” rel=”nofollow”>ing around. Bill then said to Penny ‘I hear you’re thin” rel=”nofollow”>inkin” rel=”nofollow”>ing of havin” rel=”nofollow”>ing a baby’. Penny told Bill that she and her partner were thin” rel=”nofollow”>inkin” rel=”nofollow”>ing about it. Bill then told Penny that she should maybe start lookin” rel=”nofollow”>ing 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 in” rel=”nofollow”>into Bill’s office and told that he was goin” rel=”nofollow”>ing to restructure the office staff and her position would be abolished. He told her that he was givin” rel=”nofollow”>ing her 3 weeks notice but payin” rel=”nofollow”>ing her in” rel=”nofollow”>in lieu, so there was no need for her to return the next day.

A week later Penny was lookin” rel=”nofollow”>ing through Seek.com for job vacancies when she came across one for Set Engin” rel=”nofollow”>ineerin” rel=”nofollow”>ing. 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-Discrimin” rel=”nofollow”>ination Board.

On June 9th Penny lodged a complain” rel=”nofollow”>int with the NSW Anti-Discrimin” rel=”nofollow”>ination, allegin” rel=”nofollow”>ing discrimin” rel=”nofollow”>ination in” rel=”nofollow”>in employment by Set Engin” rel=”nofollow”>ineerin” rel=”nofollow”>ing on the grounds of pregnancy and homosexuality. Penny also lodged a complain” rel=”nofollow”>int allegin” rel=”nofollow”>ing that she was vilified on the grounds of her homosexuality by Jake and Clin” rel=”nofollow”>inton. The complain” rel=”nofollow”>int also alleges that Set Engin” rel=”nofollow”>ineerin” rel=”nofollow”>ing, as her employer, failed to act to stop the vilification.

The complain” rel=”nofollow”>ints were in” rel=”nofollow”>investigated by a staff member of the Anti-Discrimin” rel=”nofollow”>ination Board. Bill and Jake and Clin” rel=”nofollow”>inton were notified of the complain” rel=”nofollow”>ints Bill responded in” rel=”nofollow”>in an email to the in” rel=”nofollow”>investigator, denyin” rel=”nofollow”>ing the allegations, but there was no response from Jake or Clin” rel=”nofollow”>inton.
The in” rel=”nofollow”>investigator spoke to Penny and Bill and Bill provided a further written response, denyin” rel=”nofollow”>ing the allegations. When the in” rel=”nofollow”>investigator attempted to speak with Jake and Clin” rel=”nofollow”>inton they refused to speak to them.

After completin” rel=”nofollow”>ing the in” rel=”nofollow”>investigation, a fin” rel=”nofollow”>inal report was produced. The report found that the allegations had been established and recommended the holdin” rel=”nofollow”>ing of a Conciliation Conference between all parties in” rel=”nofollow”>in an attempt to settle the matter.

A letter from the Anti-Discrimin” rel=”nofollow”>ination Board was sent to Bill, Jake and Clin” rel=”nofollow”>inton advisin” rel=”nofollow”>ing them of the outcome of the in” rel=”nofollow”>investigation and that there would be a Conciliation Conference called.

On July 1 a notice was sent to Penny, Bill, Jake and Clin” rel=”nofollow”>inton advisin” rel=”nofollow”>ing them that the date for the Conference was to be July 15. Bill responded advisin” rel=”nofollow”>ing that, after seekin” rel=”nofollow”>ing legal advice, he had decided to not participate in” rel=”nofollow”>in the Conference and would not cooperate with the Board any further. No response was received from Jake or Clin” rel=”nofollow”>inton. Bill, Jake and Clin” rel=”nofollow”>inton all failed to attend the Conciliation Conference.

When advised of this by the Board she asked if there was anythin” rel=”nofollow”>ing 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 Admin” rel=”nofollow”>inistrative Tribunal (NCAT).

The request was sent to the President of the Board who, after reviewin” rel=”nofollow”>ing the report in” rel=”nofollow”>into the matter decides to take the matter to NCAT.

After considerin” rel=”nofollow”>ing the matter and discussin” rel=”nofollow”>ing the issues with the Board’s legal staff it is decided that the NCAT will be asked to consider three issues:
1. Whether Set Engin” rel=”nofollow”>ineerin” rel=”nofollow”>ing, through the actions of Bill, had discrimin” rel=”nofollow”>inated again” rel=”nofollow”>inst her on the grounds of pregnancy
2. Whether Jake and Clin” rel=”nofollow”>inton had vilified her on the basis of her homosexuality
3. Whether Set Engin” rel=”nofollow”>ineerin” rel=”nofollow”>ing, in” rel=”nofollow”>in failin” rel=”nofollow”>ing to act to stop the vilification by Jake and Clin” rel=”nofollow”>inton, were vicariously liable for their actions.
You are a solicitor in” rel=”nofollow”>in the Anti-Discrimin” rel=”nofollow”>ination 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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