Giovanetti v State of New South Wales (Department of TAFE) [2011] NSWADT 195

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Giovanetti v State of New South Wales (Department of TAFE) [2011] NSWADT 195 Hearing dates: 16,17 August 2010 Decision date: 12 August 2011 Jurisdiction: Equal Opportunity Division Before: R Perrignon, Judicial member N Hiffernan , Non-judicial member A Lowe , Non-judicial member Decision: 1. The complaints of sexual harassment against each of the Second, Third and Fourth respondents are dismissed. 2. The complaint of complicity against the First Respondent is dismissed. Catchwords: Complaints of sexual harassment at educational institution - s22A and s22E - whether acts of sexual harassment occurred Complaint of permitting sexual harassment - s52 - whether TAFE permitted acts of sexual harassment by students, if they occurred Legislation Cited: Anti-Discrimination Act 1977 Category: Principal judgment Parties: Benjamin Giovanetti (Applicant) TAFE NSW (First Respondent) Timothy Massie (Second Respondent) Ashley Wayne Morcom (Third Respondent) Travis Liam Mahoney (Fourth Respondent) Representation: Counsel P Griffin,(Respondent) F Montil (Applicant, agent) Hicksons Lawyers (Respondent) File Number(s): 091015

Reasons for Decision 1From September 2007 to March 2008, the applicant Mr Giovanetti was a student attending the Certificate III course in Commercial Cookery at the Wollongbar campus of TAFE. On 8 April 2008, he complained to the Anti-Discrimination Board that, while there, he had been sexually harassed by three of his fellow students who are the personal respondents in these proceedings, contrary to section 22E of the Anti-Discrimination Act 1977 . He also complained that the first respondent, TAFE, had permitted that harassment, in breach of section 52 of the Act. 2These complaints were referred to the Tribunal by the President of the Anti-Discrimination Board pursuant to section 93C of the Act. 3Section 108(1) of the Act empowers the Tribunal (a) to dismiss the complaint in whole or in part, or (b) to find the complaint substantiated in whole or in part and, if thought fit, to grant certain relief. 4The proceedings were heard on 16 and 17 August 2010. Mr Giovanetti was represented by an agent. TAFE was represented by counsel. The three personal respondents did not appear. Written notice of the hearing had been sent by the Tribunal to the last known address of each of them on 13 May 2010, and again on 13 August 2010. The third respondent, Mr Morcom, had attended a directions hearing in the Tribunal by telephone on 7 December 2009. We are satisfied that he was aware of these proceedings, and that notice of the hearing was served on him. In view of the conclusions to which we have come, it is unnecessary to decide whether notice was received by the other two personal respondents.