Waugh v Feledyk [2022] NSWCATAD 205 | Case summary

NCAT Administrative and Equal Opportunity|2022-03-17

REASONS FOR DECISION

Ms Waugh, (the Applicant), was employed by the Department of Communities and Justice (the Second Respondent), commencing in September 2017. Ms Waugh was employed in the position of a Youth Officer. From early 2018, Ms Waugh alleges she was sexually harassed by Mr Kristian Feledyk (the First Respondent) in the workplace. The sexual harassment is alleged to have occurred in what is described as a 'most severe' case between July and August 2019.
Mr Feledyk worked at the Cobham Youth Justice site in the position of Unit Manager. Mr Feledyk was not the direct manager of Ms Waugh, but Ms Waugh alleges that he had a supervisory role and was her superior.
On 4 February 2021, the President at Anti-Discrimination New South Wales ('the President') received a complaint from Ms Waugh. The complaint alleges sexual harassment by Mr Feledyk and allegations of race and sex discrimination and sexual harassment against her employer, the Second Respondent.
The President decided to accept the complaint for investigation under s 89B of the Anti-Discrimination 1977 (NSW) ("the Act") for the period 16 February 2018 to 31 July 2018 concerning Mr Feledyk and between 16 February 2018 to 4 February 2021 concerning the second respondent and to decline the complaint on the basis that it is lacking in substance under s 92(1)(a)(i) of the Act.
I confirmed with Ms Waugh, Mr Feledyk and the representative for the Second Respondent, Mr Foran the material which was before me for consideration. That material included the bundle referred to the Tribunal from the President.

The Complaint against the Second Respondent

Ms Waugh alleges that in response to a staff survey in 2020, she contacted the Department's Executive Director and asked to speak with him about her experience in the workplace.
On 6 August 2020, she met with Mr Paul O'Reilly and disclosed the alleged sexual harassment by Mr Feledyk. After some encouragement by the Second Respondent, Ms Waugh lodged a formal complaint.
On 16 September 2020, when the Second Respondent received the complaint, Ms Waugh was interviewed about the circumstances surrounding the allegations.
On 17 September 2020, Mr Feledyk was stood down from his role pending a formal investigation.
The second respondent submits that Ms Waugh did not return to the workplace due to an unrelated physical injury.

The Response of Mr Feledyk

Mr Feledyk disputes Ms Waugh's version of the span and the nature of their relationship. He denies allegations that he groomed, exploited and manipulated her into having a sexual relationship. He says it was consensual.
Mr Feledyk does not agree that he isolated Ms Waugh from her work colleagues to exert control over her and that they mutually agreed to keep their relationship 'confidential' in the workplace.

The Second Respondent's Response

The Second Respondent confirmed that Mr Feledyk was employed as a Unit Manager at the Cobham Juvenile Centre, however, he was not Ms Waugh's direct report manager. The Department was not involved in any formal delegation or procedure for the approval of the Diploma of Youth Work course that Ms Waugh was undertaking and was not involved in Mr Feledyk signing off parts of her course in any way.
The Second Respondent terminated the employment of Mr Feledyk. It disputes Ms Waugh's complaint and any breach of the ADA.

Statutory framework and principles governing the grant of leave

Where the President decides to accept a complaint under s 89B, he or she must investigate that complaint: s 90(1) of the Act. If at any stage during the investigation of a complaint, the President is satisfied that it is lacking in substance, the President may, by notice in writing addressed to the complainant, decline the complaint or part of the complaint (s 92(1)(a)(i)). It is this decision of the President which I have jurisdiction in these proceedings.
Where, as here, the President declines a complaint under s 92 of the Act, the President must refer the complaint to the Tribunal if he or she has received a written request from the complainant to do so: s 93A of the Act.
Where a complaint is referred to the Tribunal at the request of a complainant under s 93A(1), that complaint may not be the subject of proceedings before the Tribunal without the leave of the Tribunal: s 96(1) of the Act.
Section 96(1) gives the Tribunal an unfettered discretion to grant leave for a complaint to proceed: Jones & Anor v Ekermawi [2009] NSWCA 388 at [58] (Jones); Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 at [25] (Ekermawi). That discretion must be exercised having regard to the purpose of the legislative scheme established by the Act and be guided by the consideration that the refusal of leave will finally determine the complainant's rights under that scheme: Jones at [57]; Ekermawi at [32]. The question of leave involves evaluating whether it is "fair and just" to grant or refuse leave in the particular circumstances of the case: Ekermawi at [36], [37]; Jones at [58]. In deciding whether to grant leave, the Tribunal may have regard to the grounds which the President may take into account in declining a complaint under s 92 of the Act: Jones at [60].

My consideration

It is unlawful for an employee to sexually harass a fellow employee: s 22B(2) of the ADA.
Section 22A of the ADA defines sexual harassment to mean "an unwelcome sexual advance", "an unwelcome request for sexual favours" or "other unwelcome conduct of a sexual nature" in relation to the person. The conduct will not be unlawful unless "a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated."

The Complaint concerning Mr Feledyk

None of the conduct that Ms Waugh described was "a sexual advance" or "a request for sexual favours." The third category, "other conduct of a sexual nature", is not defined but has been interpreted to mean "some conduct which invites or otherwise explores the prospect of the object of such conduct participating or engaging in some form of sexual behaviour or that suggests that the object of such conduct may have done so or may do so, or is a person of a character empathetic to such behaviour." (see Poniatowska v Hickinbotham [2009] FCA 680 at [294]).
The Commonwealth Sex Discrimination Commissioner has stated in a Code of Practice for Employers: Effectively preventing and responding to sexual harassment: at 8, that, "sexual harassment is not sexual interaction, flirtation, attraction or friendship which is invited, mutual, consensual or reciprocated." Ms Waugh has described a sexual relationship which was largely consensual and reciprocated, albeit she says was manipulative and it arose as a result of grooming. If this matter were to proceed to hearing it is highly unlikely that the Tribunal would find that the conduct Ms Waugh described falls within the definition of "unwelcome" conduct. The fact that Ms Waugh engaged in a sexual relationship with Mr Feledyk for a period of some 10 months, which at that time was consensual, cannot mean that the conduct was unwelcome.
As I have found that it is highly unlikely that Ms Waugh would be able to prove the first parts of the test for sexual harassment, I do not need to address the objective part of the test. In all the circumstances the complaint of sexual harassment is lacking in substance that it is not fair or just for it to proceed.
Leave to proceed in the claim against Mr Feledyk is refused.

The Claim against the Second Respondent

In so far as Ms Waugh claims sexual harassment against the Second Respondent, I repeat my findings above. In those circumstances the complaint of sexual harassment is also lacking in substance that it is not fair or just for it proceed.
The alternate complaint made by Ms Waugh against the Second Respondent is one of sex discrimination. During oral submissions Mr Pinchen, who appeared for Ms Waugh, withdrew that claim against the Second Respondent.
I accept that that part of the complaint is not pressed.

Order 1. Leave for the complaint against Mr Kristian Feledyk is refused. 2. Leave for the complaint against the Department of Communities and Justice to proceed is refused.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 June 2022

Waugh v Feledyk

At a glance

Court

Decision date

Source

Judgment (11 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (3)