Landmark Appeal win for a sexual harassment victim after waiting 6 years for judgment!

By | Discrimination Law, Employment Law

After experiencing sexual harassment over 11 years ago, Lilo Von Schoeler (Lilo) can finally say that justice has been served in a land mark decision handed down by the Full Court of the Federal Court of Australia in the matter of Von Schoeler v Allen Taylor & Company Ltd Trading as Boral Timber & Ors (Federal Circuit Court of Australia), BRG 893 of 2011.

In 2011, Lilo filed her claim for sexual harassment, sex discrimination and victimisation against Allen Taylor & Company Ltd trading as Boral Timber, a subsidiary of Boral Limited, and two of its employees, Timothy Hey and John Urquart. The Judge at first instance found that Lilo had been sexually harassed however did not find Boral Timber vicariously liable for their employee’s conduct and dismissed her other claims outright.

In bizarre circumstances, that still remain unexplained, the judgement was not provided to any of the parties until November 2018. The parties were told by the Judge’s Associate that the reasons for judgement had been released in April 2015 but due to an ‘administrative oversight’ the judgment had not been sent to the parties.

Susan Moriarty & Associates filed an appeal on ten grounds, including one which alleged that the delay was of such a magnitude and so inexplicable that Lilo had been denied justice and another which asserted that Lilo’s employer, Boral, were vicariously liable for their employee’s conduct.

In a scathing judgement at the final paragraph of the decision, their honours stated:

It should finally be noted that the delay on the part of the primary judge in delivering his judgment has—regrettably—brought the administration of justice into disrepute.

The full court upheld Lilo’s appeal, declaring Boral was vicariously liable for the sexual harassment, set aside the primary judge’s costs order against her, ordered Boral to pay Lilo’s appeal costs and remitted the issue of victimisation, sex discrimination and assessment of damages to a different judge in the Federal Circuit Court.

Lilo described to her legal team at Susan Moriarty & Associates when she was notified of her win that she was:

“just so damn happy, I just want to dance!” and added she was “grateful that the full court acknowledged the strain” she had laboured under for over 6 years and was “delighted that after all this time, justice has finally been served”.

Postscript –
Susan Moriarty & Associates filed a freedom of information request in regard to how such an ‘administration oversight’ had happened. However, the application was denied on the grounds that the documents in question were ‘judicial’ in nature and therefore exempt under the Act. Ms Moriarty has lodged an application for review of the Court’s decision with the Commonwealth Office of the Information Commissioner.

Ms Moriarty said that “We want to understand what happened here, to discover how such an astonishing delay could have occurred. This is in the interest of all litigants. The old proverb remains prescient ‘Justice delayed is Justice denied’. The court’s managers needs to understand how and why this happened so that it never happens ever again”.

This article is legal information and should not be seen as legal advice. Please consult with a lawyer before you rely on this information.

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Adverse Action and Sexual Harassment Dispute

By | Discrimination Law, Employment Law

As with many employment disputes there are alternatives to litigation.  Susan Moriarty & Associates work with clients and employers to negotiate a favourable outcome as one means of avoiding the costs associated with litigating disputes.    In saying this, not all disputes are settled by negotiation and may move forward to a conference in the relevant jurisdiction of the: Fair Work Commission, Queensland Industrial Relations Commission (QIRC), Australian Human Rights Commission or Queensland Anti-Discrimination Commission.

This year, Susan Moriarty & Associates has settled a number of legal disputes out of court.   A great example is a recent dispute in which our client alleged sexual harassment in the workplace and made a complaint to that effect to his employer.  The complaint was dismissed by the employer with no further action taken.  Regrettably, matters did not end there.  A temporal link was established between the employee making the complaint and the adverse action the employer took soon after the complaint was made.  That adverse action was as follows, the employee took sick leave because of an injury on a number of occasions, following this the employer called a meeting with the employee without notice and with no agenda outlined. At this meeting, the employee was advised that ‘the relative department were looking at the absence and would guide the manager as to whether the employee would continue with the employer’. Two days later the employee was called into a meeting and handed a termination letter. As the employee was on probation his/her ongoing employment was not confirmed. The reasons for the termination were summarised as, ‘inappropriate professional conduct linked to the usage of sick leave and the notice provided in relation to absences from work’.

In this dispute, the employee had exercised a number of workplace rights such as: the right to make a complaint and the right to take sick leave, and in doing so the employer in its conduct toward our client asserting his/her rights, were adverse and, breached its duty of care to the employee.

This dispute alleging ‘adverse action’ linked to the ‘exercise of a workplace right’ was filed with the Queensland Industrial Relations Commission where a date was set down for a conference.  Fortunately, negotiations proceeded between the parties and a settlement was reached without further litigation. We successfully negotiated a compensation package, a ‘resignation’ instead of ‘termination’, a statement of service and a deed of release.  Signing the deed of release was important to our client because he/she wished to pursue a career in the same industry-which was quite small, the deed of release ensured neither party was to discuss the terms of settlement or dispute with anyone. In concluding the dispute our client emailed our office the following:

“I would like to thank Susan, Brooke, Tara and yourself for every bit of assistance given to me throughout all of this. It certainly hasn’t gone unnoticed, and for everything you have all done for me, I truly am thankful.”

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