Linnell v Seachem Australia Pty Ltd [2011] NSWADT 61

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Linnell v Seachem Australia Pty Ltd [2011] NSWADT 61 Hearing dates: 19 October 2010, written submissions closed 5 November 2010 Decision date: 25 March 2011 Before: C Huntsman, Judicial Member N Hiffernan, Non Judicial Member Z Antonios, Non Judicial Member Decision: The application is dismissed Catchwords: Sexual harassment; victimisation. Legislation Cited: Sections 22 A, 20B, 50 Anti-DiscriminationAct 1977 Cases Cited: Carter v Linuki Pty Ltd trading as Aussie Hire & Fitzgerald (EOD) [2005] NSWADTAP 40;Dutt v Central Coast Area Health Service [2002] NSWADT 133;Coleman v Bentley [2002] NSWADT 87;Sivananthan v Commissioner of Police, NSW Police Service [2001] NSWADT 44Nicholl and Nicholls v Director General, Department of Education And Training (No 2) [2009] ADTAP 20; Category: Principal judgment Parties: Patricia Linnell (Applicant) Seachem Australia Pty Ltd (Respondent) Representation: Counsel H Woods (Respondent) P Linnell (Applicant -In Person) File Number(s): 091114

reasons for decision

Bac kground 1On 18 February 2009 the Applicant, Ms Linnell, made a complaint to the Anti-Discrimination Board of sexual harassment and victimisation. On 25 September 2009 Ms Linnell requested that the Anti-Discrimination Board refer her complaint to the Equal Opportunity Division of the Administrative Decisions Tribunal (the Tribunal). Ms Linnell was employed by Seachem Australia Propriety Limited (Seachem), the Respondent. The Respondent is a small company, Seachem, and Mr Whitley is the managaing director. The Applicant alleges Seachem unlawfully sexually harassed her in her employment when, on 15 January 2009, a co-worker, Ms Humphreys, stated to a warehouse employee (in reference to Ms Linnell) that " Trish can go and suck someone's dick". Ms Linnell alleged that Seachem, the Respondent, unlawfully victimised her when, following her complaint about Ms Humphreys' conduct to the Director of Seachem, Mr Matthew Whiteley, no action was taken by Mr Whiteley against Ms Humphreys. She further alleges that Mr Whiteley then began to constantly unfairly criticise her work, which she claims culminated in the unlawful termination of her employment on 10 February 2009. The Respondent asserted to the Anti-Discrimination Board that the complaint was investigated and that as Ms Humphreys denied the allegation, and as there were no independent witnesses to corroborate the allegation, Mr Whiteley decided to issue a warning to Ms Humphreys, reminding her of the conditions of work expected of her. The Respondent's case is that Ms Linnell was terminated for poor work performance. The Respondent states that Ms Linnell's employment was terminated four weeks after the complaint was made to Mr Whiteley, and states that there is no causal connection with the complaint.