Jungstedt -v- Yoram-Gross EM.TV Pty Limited [2001] NSWADT 131

CITATION: Jungstedt -v- Yoram-Gross EM.TV Pty Limited [2001] NSWADT 131 DIVISION: Equal Opportunity Division APPLICANT Vicente Jungstedt PARTIES: RESPONDENT Yoram-Gross-EM.TV Pty Limited FILE NUMBER: 991090 HEARING DATES: 29/08/2000, 30/08/2001, 31/08/2001, 19/02/2001, 20/02/2001 SUBMISSIONS CLOSED: 02/27/2001 DATE OF DECISION: 08/13/2001

BEFORE: Hennessy N (Deputy President); Luger M - Member; Edwards K - Member APPLICATION: Homosexual Discrimination - In work MATTER FOR DECISION: Principal matter LEGISLATION CITED : Anti-Discrimination Act 1977 Commissioner of Corrective Services -v- Aldridge (EOD) [2000] NSWADTAP 5 CASES CITED: Adams -v- University of Western Sydney [2001] NSWADT 19 Hudson -v- Strathfield Golf Club [2000] NSWADT 88 APPLICANT REPRESENTATION: M Bateman, barrister RESPONDENT K Nomchong, barrister ORDERS: The application is dismissed.

Introduction 1 Mr Luger, one of the non-judicial members of the Tribunal in this case, passed away before these reasons were published. A draft of the decision, in substantially the same form as the published reasons, was given to him prior to his death. He agreed with the reasoning and conclusions in that draft. 2 On 19 August 1999 the President of the Anti-Discrimination Board (ADB) referred to the Tribunal a complaint of homosexuality discrimination in employment. The President's report refers to complaints of homosexuality discrimination and victimisation. When questioned by the Tribunal, Ms Bateman, representing Mr Jungstedt, indicated that the complaint of victimisation was being withdrawn. It is formally dismissed. 3 Mr Jungstedt, who is a homosexual person, alleges that his supervisor, Mr Qui, started to treat him less favourably than he would have treated a person who he did not think was a homosexual person, after he found out that Mr Jungstedt was gay. Mr Jungstedt says that on or about 19 December 1997, after he had been working at Yoram-Gross EM.TV Pty Limited (Yoram-Gross) for about six weeks, Mr Qui went to Mr Jungstedt's home to collect some art work and saw his same sex partner lying in bed. Before this happened Mr Qui had been giving Mr Jungstedt work to complete including background layouts based on key designs and some clean-up work related to the "Skippy" production. That work was accepted by Mr Qui and the designs proceeded to the next stage of production. Following his visit to Mr Jungstedt's home, Mr Jungstedt alleges that Mr Qui's behaviour changed in relation to Mr Jungstedt's work because he knew Mr Jungstedt was a homosexual person. Mr Jungstedt said that Mr Qui gave him mostly clean up work and some background drawing for the "Flipper" production. A considerable amount of Mr Jungstedt's work was rejected by Mr Qui and did not proceed to the next stage of production. In addition, Mr Qui failed to adequately explain to Mr Jungstedt what he required and failed to mentor him as he had previously done. 4 The complainant's case is that Yoram-Gross, through its employee Mr Qui, directly discriminated against Mr Jungstedt on the ground of homosexuality. The complainant says that the Tribunal can draw an inference, based on circumstantial evidence, that the change in Mr Qui's behaviour towards Mr Jungstedt coincided with him finding out that he was a homosexual person. 5 The complainant alleges that these circumstances amount to a breach of s 49ZH(2)(a) of the Anti-Discrimination Act 1977 (AD Act). That provision relates to discrimination by an employer on the ground of homosexuality in the terms or conditions of employment that an employer affords an employee. 6 The complainant also alleges that under s 53 of the AD Act, Yoram-Gross is vicariously liable for the discriminatory acts of its employee, Mr Qui. 7 The respondent, Yoram-Gross, says that Mr Qui knew Mr Jungstedt was gay before he visited his home in December 1997. Even if that is not accepted, Mr Qui did not treat him less favourably than he would have treated a person who he did not think was a homosexual person. According to Yoram-Gross, it was Mr Jungstedt's inability to perform the work to the required standard, his failure to accept criticism and his inexperience as a background designer which led to the rejection of his work.