Steel v Director General, NSW Department of Premier and Cabinet [2012] NSWADT 82

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Steel v Director General, NSW Department of Premier and Cabinet [2012] NSWADT 82 Hearing dates: 5 March 2012 Decision date: 02 May 2012 Jurisdiction: Equal Opportunity Division Before: Magistrate N Hennessy, Deputy President Decision: Leave for the applicant's complaint of sexual harassment to proceed is refused. Catchwords: LEAVE - complaint of sexual harassment - whether conduct of sexual nature Legislation Cited: Anti-Discrimination Act 1977 Administrative Decisions Tribunal Act 1997 Cases Cited: Jones and Anor v Ekermawi [2009] NSWCA 388 Haddon v Forsyth [2011] NSWSC 123 Coleman -v- Bentley [2002] NSWADT 87 Texts Cited: Australian Human Rights Commission, Effectively preventing and responding to sexual harassment: A Code of Practice for Employers, AHRC, Sydney, 2008. Category: Interlocutory applications Parties: John Steel (Applicant) Peter Tibbitts (First Respondent) Director General, NSW Department of Premier and Cabinet (Second Respondent) Representation: Counsel L Wilson (1st and 2nd Respondents) J Steel (Applicant in person) Crown Solicitor's Office (1st and 2nd respondents) File Number(s): 121019

REasons for decision

Introduction 1Mr Steel complained to the President of the Anti-Discrimination Board that his supervisor, Mr Tibbitts, had sexually harassed him in breach of the Anti-Discrimination Act 1977 (AD Act). The President declined the complaint as lacking in substance. Mr Steel has applied to the Tribunal for permission for his complaint to proceed: AD Act, s 96. The Tribunal has a discretion to grant or refuse leave for the complaint to go ahead and will be guided by what is fair and just in the circumstances: Jones and Anor v Ekermawi [2009] NSWCA 388. When deciding whether to grant leave, the Tribunal may have regard to the grounds on which the President may decline a complaint under s 92(1) of the AD Act, including that the complaint lacks substance. 2In order to assess whether the complaint should proceed I need to examine both the factual and legal basis for the complaint.