Kennedy v ADI Ltd [2001] FCA 614

FEDERAL COURT OF AUSTRALIA

Kennedy v ADI Ltd [2001] FCA 614

DOROTHY JOY KENNEDY v ADI LIMITED (ACN 008 642 751)

RYAN J MELBOURNE 25 MAY 2001

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V512 of 2000

BETWEEN: DOROTHY JOY KENNEDY

Applicant

AND: ADI LIMITED (ACN 008 642 751)

Respondent

JUDGE: RYAN J

DATE OF ORDER: 25 MAY 2001

WHERE MADE: MELBOURNE

THE COURT ORDERS: 1. THAT the application be dismissed. 2. THAT the applicant have leave to file and serve by 8 June 2001 submissions in writing confined to the issue of what order (if any) should be made, in the light of the reasons published this day, in respect of the costs of the application. 3. THAT any written submissions in answer to those filed and served pursuant to paragraph 2 of this Order, be filed and served by 15 June 2001. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V512 of 2000

BETWEEN: DOROTHY JOY KENNEDY

Applicant

AND: ADI LIMITED (ACN 008 642 751)

Respondent

JUDGE: RYAN J

DATE: 25 MAY 2001

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 There is before the Court an application pursuant to s 46PO of the Human Rights and Equal Opportunity Commission Act 1986 ("the HREOC Act"), alleging unlawful discrimination by the respondent ("ADI") against the applicant, Ms Kennedy. The acts of discrimination of which the applicant complained, were said to be unlawful in contravening the Sex Discrimination Act 1984 ("the SDA"). By her application, the applicant sought an apology from ADI and compensation in the sum of $150,000. 2 The applicant had earlier, on 25 February 2000, made a complaint to the Equal Opportunity Commission ("the Commission") against ADI alleging "sexual harassment and discrimination on the basis of sex in employment". The accompanying statement of complaint was in the following terms; "In 1996 I was employed by Australian Defence Industries Pty Ltd ('ADI') as an Accountant. While I was working I often heard male employees say that they had had sex with female employees. These comments made me very uncomfortable. On one such occasions, I heard an employee, Arthur Godfrey, tell another male employee that he had sex with a female employee. On another occasion I heard one male employee say to another, "she's the one to pluck". I understand the male employee was referring to me when he made this comment. As a result of this treatment I resigned in writing from ADI in March 1996. I applied for social security which reduced my income. This made it difficult to raise my two sons. Consequently I believe that I have been sexually harassed and discriminated against on the basis of sex in employment. I was not aware of my rights under equal opportunity legislation until recently and that is why I have not complained until now." 3 After reviewing the complaint, a delegate of the President of the Commission on 15 June 2000 exercised the discretion conferred by s 46PH(1)(d) of the HREOC Act to terminate the complaint, principally on the ground that it had been lodged more than twelve months after the alleged acts of sexual harassment. Accordingly, the applicant exercised the right conferred by s 46PO of the HREOC Act to apply to this Court. Section 46PO provides, so far as is relevant; "(1) If: (a) a complaint has been terminated by the President under section 46PE or 46PH; and (b) the President has given a notice to any person under subsection 46PH(2) in relation to the termination; any person who was an affected person in relation to the complaint may make an application to the Federal Court or the Federal Magistrates Court, alleging unlawful discrimination by one or more of the respondents to the terminated complaint. (2) The application must be made within 28 days after the date of issue of the notice under subsection 46PH(2), or within such further time as the court concerned allows. (3) The unlawful discrimination alleged in the application: (a) must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or (b) must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint. (4) If the court concerned is satisfied that there has been unlawful discrimination by any respondent, the court may make such orders (including a declaration of right) as it thinks fit, including any of the following orders or any order to a similar effect: (a) an order declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat or continue such unlawful discrimination; (b) an order requiring a respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant; (c) an order requiring a respondent to employ or re-employ an applicant; (d) an order requiring a respondent to pay to an applicant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent; (e) an order requiring a respondent to vary the termination of a contract or agreement to redress any loss or damage suffered by an applicant; (f) an order declaring that it would be inappropriate for any further action to be taken in the matter."