Employment Services Australia Pty Ltd v Poniatowska [2010] FCAFC 92

FEDERAL COURT OF AUSTRALIA

Employment Services Australia Pty Ltd v Poniatowska [2010] FCAFC 92

Citation: Employment Services Australia Pty Ltd v Poniatowska [2010] FCAFC 92

Appeal from: Poniatowska v Hickinbotham [2009] FCA 680

Parties: EMPLOYMENT SERVICES AUSTRALIA PTY LIMITED v MALGORZATA PONIATOWSKA and REMO LOTITO

File number: SAD 107 of 2009

Judges: DOWSETT, STONE AND BENNETT JJ

Date of judgment: 27 July 2010

Catchwords: HUMAN RIGHTS – sex discrimination found at first instance – female employee complained about sexual harassment in robust work environment – complaints dealt with inadequately – employment terminated ostensibly for unsatisfactory work performance – the primary Judge found employment terminated because of employee's complaints and inferred that male complainant would have been treated differently – factual findings challenged on appeal – whether findings supported by the evidence or involved the creation of a new case not advanced at trial – whether findings properly put to witness in cross-examination – whether finding of sex discrimination rose above conjecture – where no male employee had in fact complained of sexual harassment

EVIDENCE –application to adduce new evidence of conviction of employee for fraud – whether likely to affect compensation for future loss of earning capacity

Legislation: Human Rights and Equal Opportunity Commission Act 1986 (Cth) s 46PO Sex Discrimination Act 1984 (Cth) ss 5, 14(2), 28A, 28B, 106

Cases cited: Ghazal v Government Insurance Office of NSW (1992) 29 NSWLR 336 considered Holloway v McFeeters (1956) 94 CLR 470 considered Poniatowska v Hickinbotham [2009] FCA 680 affirmed Suvaal v Cessnock City Council (2003) 200 ALR 1 considered