James v Tracz [2013] NSWADT 161

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: James v Tracz [2013] NSWADT 161 Hearing dates: 27, 28, 29 May 2013 and 7 June 2013 Decision date: 18 July 2013 Jurisdiction: Equal Opportunity Division Before: C Huntsman, Judicial member A Lowe, Judicial member J Schneeweiss, Judicial member Decision: The application is dismissed Catchwords: Sexual harassment in employment Legislation Cited: Anti-Discrimination Act 1977 Cases Cited: James v Wild Food Highlands Pty Ltd [2012] NSWADT 111 Category: Principal judgment Parties: Lauren James (Applicant) Robert Tracz (First Respondent) Deborah Roach (Second Respondent) Representation: Counsel Ms Tibbey, (Applicant) Mr Crosslands (Respondent) Legal Aid Commission of NSW, (Applicant) File Number(s): 121002

REASONS FOR DECISION

Background 1This was an application by Ms James, the applicant, alleging sexual harassment in employment by the first respondent, Mr Robert Tracz. Mr Tracz was executive chef where the applicant worked as apprentice chef/second chef. At the time of the alleged sexual harassment the employer of both Ms James and Mr Tracz was Wild Food Highlands Pty Ltd. 2The Director of Wild Food Highlands Pty Ltd was Mr Peter Roach and Ms Debbie Roach is his wife. The applicant alleges that sexual harassment was permitted by Ms Deborah Roach, the second respondent. 3Ms James made a complaint to the Anti-Discrimination Board on 28 April 2011 about the alleged sexual harassment. In her application she stated, in answer to the question "who do you think has discriminated against you?" - "Robert Tracz and Debbie and Peter Roach". In answer to a question about their relationship to her, she answered "executive chef/employer/boss". In an answer to a question about who the head of the organisation was, she stated "Debbie and Peter Roach" and gave their position as "employers". 4When the Anti-Discrimination Board referred the complaint to the tribunal the respondents were named as Wild Food Highlands Pty Ltd and Mr Robert Tracz. Around this time the respondent, Wild Food Highlands Pty Ltd, was placed under administration. The applicant applied to join Ms Debbie Roach as a party to the proceedings. As detailed in the Reasons for Decision for the tribunal's Order to join Ms Roach as a party (refer James v Wild Food Highlands Pty Ltd [2012] NSWADT 111 (7 June 2012)), it is the applicant's contention that Ms Roach was in charge of the workplace, that she knew of the alleged sexual harassment and permitted it to occur. The applicant contended that Ms Roach was liable, pursuant to the aid and abet provisions of s52 of the Anti-Discrimination Act 1977 (the AD Act). 5The tribunal joined Ms Roach as a party and the applicant subsequently withdrew proceedings against Wild Food Highlands Pty Ltd ("Wild Foods"). 6Evidence indicated that shares in Wild Food Highlands Pty Ltd were held beneficially by Centurcorp Retail Pty Ltd (currently under administration) and that shares in that company are held by Peter Roach and Debbie Roach. 7The period of the complaint, as referred by the Anti-Discrimination Board, is October 2007 to April 2011. 8The applicant started work at Wild Foods in about October/November 2007 (the applicant states she commenced in October 2007 and the first respondent states in November 2007). The applicant commenced work as an apprentice chef and during her employment became second chef. The business consisted of a cafe, deli, and shop. 9As executive chef and person in charge of the kitchen, Robert Tracz was direct supervisor of the applicant in the workplace. The applicant ceased working at the business in April 2011, her last day of work was 8 or 9 April 2011. 10The applicant, early in her employment, was enrolled in Commercial Cooking at TAFE however she failed a number of courses in her first year. She states that Mr Tracz discouraged her from continuing to attend TAFE saying she could become a chef without the TAFE qualification. Mr Tracz says that he did have a conversation that one could qualify as a chef without TAFE qualifications but denied that he discouraged her from continuing to attend. The applicant later returned to her TAFE studies and completed the qualification. 11During the period of the applicant's employment Peter Roach was director of the company which owned the business. For a period of time Deborah Roach worked as supervisor of the cafe. There is dispute in this matter about the number of hours worked by Deborah Roach and her role in the business. 12The applicant claims that during the period of her employment Mr Tracz behaved in a sexual way towards her, making sexual comments and touching her sexually, and that this was unwelcome and was sexual harassment. Mr Tracz denies that this occurred, as does Deborah Roach and other witnesses for the second respondent. A witness for the applicant, Jesse Streeter, was employed as a dishwasher for some of the period that the applicant worked at the business. Mr Streeter states that he saw Mr Tracz "grope" the applicant, and that he was sexually propositioned by Mr Tracz. The evidence relating to these matters is further detailed below. 13The applicant claims that due to the sexual harassment by the first respondent, Mr Tracz, she has suffered psychological damage, and actual economic loss through loss of wages, and she makes a claim for damages consequent upon the sexual harassment. The applicant claims that the second respondent, Ms Roach, knew of the sexual harassment occurring and permitted it to occur and is therefore liable for the sexual harassment under section 52 of the Anti-Discrimination Act (the AD Act). 14The first respondent, Mr Tracz, and the second respondent, Ms Roach, deny that the sexual harassment occurred. Ms Roach also disputes any liability under s 52 of the AD Act.