Firm Spy Case Summary: Mitchell v Clayton Utz & Ors (No.1)

Mitchell v Clayton Utz & Ors (No 1).

In July 2009, Magistrate Hennessy of the NSW Administrative Decisions Tribunal (ADT) considered an application filed by Mr Mitchell for leave to proceed with various complaints against his former employer Clayton Utz and several of its employees. The Tribunal’s permission (“leave”) is required under s96 of the Anti-Discrimination Act 1977 (NSW) before the complaints can proceed. Clayton Utz and the other defendants resisted the application for leave. In enunciating the state of the authorities as to the circumstances in which leave should be granted under s96, the Magistrate observed:

where browsing is stalking

It is correct that it is not the Tribunal’s role when determining a leave application to decide whether or not the complaint has been substantiated. However, the merits of the complaint are relevant. In particular, if a complaint lacks substance, that may be sufficient justification for leave to be refused. The principles applicable to summary dismissal, such as those set out in Spellson v George, do not govern the Tribunal’s discretion to grant or refuse leave under s 96. Whether there is a serious question of fact to be determined or a serious question of credit involved, are matters which are relevant, but not necessarily determinative.

Using this statement of the law as a guide, Magistrate Hennessy considered after an analysis of the evidence that there was “sufficient justification” for leave to be granted in respect of the following allegations (at [71]):

1. the complaint of disability discrimination against Clayton Utz relating to Ms Rutz’ questioning of Mr Mitchell in meetings on 22 June 2007 and 19 July 2007 so far as those questions relate to Mr Mitchell’s medical history and medical treatment (Complaint (1)); and
2. the complaint of disability discrimination against Clayton Utz relating to the non-attendance of a third party at a meeting with Ms Rutz on 19 July 2007 (Complaint (2));
3. the complaints of sexual harassment against Mr Williams and Mr Taylor personally and against Clayton Utz as their employer in relation to the alleged conduct except for the allegations that Mr Williams or Mr Taylor called Mr Mitchell ‘trench’ or ‘trench coat’ and the comment alleged to have been made by Mr Williams that ‘solicitors could take paralegals home for sex (Complaint 3)); and
4. the complaints of victimisation against Ms Rutz and against Clayton Utz as her employer (Complaint 4)).

Complaints (1) & (2)

Magistrate Hennessy gave the following edited summary of the disputed facts giving rise to Complaint (1) & (2) (at [10] – [12]):

On 22 June 2007, a day after visiting St Vincent’s Hospital, Mr Mitchell returned to work and attended a meeting with Narelle Rutz, the [Clayton Utz] Occupational Health and Safety Adviser. According to Ms Rutz, that meeting was necessary because Clayton Utz has a duty of care to ensure that the workplace is safe. She says that the intention of the meeting was to verify that Mr Mitchell was able to return to work and to review any certified restrictions. During that meeting Ms Rutz agrees that she asked him to obtain a medical certificate stating that he was fit for work. Mr Mitchell says that she also asked him for details about his medical condition, his medical history and the medication he was taking. He was reluctant to provide that information but says that Ms Rutz insisted. During the meeting Mr Mitchell disclosed details of his previous history of mental illness and gave an account of the circumstances leading up to him attending hospital. Ms Rutz denies that she asked Mr Mitchell for information about his medical history and says that Mr Mitchell volunteered that information. At the end of the meeting, Mr Mitchell says he told Ms Rutz that he did not want to meet with her again because of the aggressive manner in which she had questioned him. Ultimately they agreed that a third party, Ms Claire Keeling, would be present at the next meeting.

At the meeting on 19 July 2007, Mr Mitchell say that Ms Keeling did not attend but that he did not object because he was fearful that his employment may be at risk. He says that during this meeting Ms Rutz asked him whether he was taking medication and what his future plans were in relation to medication. Mr Mitchell’s complaint about the second meeting was that as well as asking further probing and personal questions, Ms Rutz did not honour their agreement that a third party would attend. Ms Rutz’ response is that Mr Mitchell was aware that Ms Keeling would not be attending the second meeting but agreed to participate.

Complaint (3)

Magistrate Hennessy gave the following edited summary of the allegations giving rise to Complaint (3) (at [31] – [33]):

Mr Mitchell alleges that Mr Williams [and] Mr Taylor … employees of Clayton Utz, sexually harassed him. With respect to Mr Williams, it is alleged that in June 2007, Mr Williams informed Mr Mitchell that changing his clothes underneath a trench coat in his office would ‘probably not be regarded well if management found out’. Mr Williams agrees that he spoke to Mr Mitchell about the inappropriateness of getting changed in his office. After Mr Mitchell told Mr Williams that he changed his clothes underneath his overcoat, Mr Williams went to Mr Taylor’s office and was laughing and looking at Mr Mitchell. He says they were making jokes about him ‘articulating the association between trench coats and deviant and illegal sexual behaviour and referring to him as a ‘flasher’ and as ‘trench’. Mr Williams denies these allegations.

Mr Mitchell received emails sent between Mr Taylor, Mr Williams and Mr Ho that ‘continued to make fun’ of him. Clayton Utz denies the allegation. Mr Williams continued to refer to him as ‘trench’ and/or continued to make fun of him for having changed in his office. He claims that this continued to ‘articulate the associations between overcoats and deviant sexual behaviour.’ Mr Williams denies the allegation. On one occasion, Mr Williams ‘explained to the applicant how solicitors could take paralegals home for sex’. Mr Williams denies the allegation.

With respect to Mr Taylor, it is alleged that Mr Taylor spoke with Mr Williams (see above). Mr Mitchell received emails that ‘continued to make fun’ of him. Mr Taylor denies the allegation. Mr Taylor continued to refer to him as ‘trench’ and/or continued to make fun of him for having changed in his office. He claims that this continued to ‘articulate the associations between overcoats and deviant sexual behaviour.’  Mr Taylor denies the allegation. One Friday evening Mr Taylor went into Mr Mitchell’s office, took his coat, put it on and ran up and down the hallway calling out ‘trench, trench, trench’. He then went into the office of Mr Ho and continued to make fun of Mr Mitchell. Mr Taylor agrees that he put Mr Mitchell’s coat on and walked several metres down the hall, saying ‘trench-coat’ several times in a sing-song voice. Mr Taylor continued to refer to the fact that Mr Mitchell had changed in his office underneath his overcoat and that that was basically what a flasher did.

Complaint (4)

Magistrate Hennessy gave the following edited summary of the allegations giving rise to Complaint (4) (at [55] and [58] – [70]):

Mr Mitchell alleges that the way Ms Rutz treated him in the second meeting on 19 July 2007 amounts to victimisation. Mr Mitchell also complains that Mr Catanzariti, a partner with Clayton Utz, victimised him by sending him an email. [With regard to the former allegation] Mr Mitchell says that he made both ‘explicit’ and ‘implicit’ allegations of wrongdoing, namely telling Ms Rutz that she did not have the right to ask ‘personal’ or ‘probing’ questions about his medical history or his medication and alleging that she was asking those questions in an aggressive manner. It is at least arguable that if Mr Mitchell expressly objected to those questions being asked, that conduct could amount to an allegation that Ms Rutz had committed an act that would amount to a contravention of the AD Act: s 50(1)(c)… Consequently, leave is granted for the complaints of victimisation against Ms Rutz and to proceed. Clayton Utz accepts that if any employee breached the AD Act the partnership would be vicariously liable unless it could establish the defence under s 53 of the AD Act. Consequently, Clayton Utz should also be named as a respondent to the complaint of victimisation against Ms Rutz.

Stalkbooking

We found the following edited passage of the judgment, featuring Clayton Utz partner and former president head of the NSW Law Society Joe Catanzariti, to be of particular interest (at [61] – [70]):

Mr Mitchell says that in January or February 2008 he sent an email informing Ms Keeling and Mr Catanzariti that he would be bringing a complaint of discrimination against various employees of Clayton Utz. On 7 March 2008 Mr Mitchell sent an email to Ms Keeling requesting that she provide him with an address for service if she left her employment prior to receiving a complaint that Mr Mitchell intended to lodge with the then Human Rights and Equal Opportunity Commission (HREOC). Ms Keeling did not reply to that request. A month later, Mr Mitchell says he noticed that Ms Keeling had written “Claire is leaving the LAW” on her ‘Facebook’ page on the internet. Having not heard from Ms Keeling about an alternative address, Mr Mitchell emailed her on 13 May 2008 saying:

You will recall that on 6 March 2008, I wrote to you as Clayton Utz asking you to inform me if you decide to leave your employment, Clayton Utz before you receive service of documents for my human rights claim from the HREOC, and, should you do so, to please provide me a new address for service so that the HREOC can serve my claim on you. It appears from your Facebook, page on April 14, 2008 in which you wrote. “Claire is leaving the LAW” that you have in fact terminated your employment as Clayton Utz, and regretfully, you have not provided me an address where I can have documents served on you. I am going to be filing my claim with the HREOC at the beginning of June and, unless you are taking an inordinately long notice period, I will need another address, for you. You are required to provide me an address where I can have these documents served on you. Please note that a Court can award punitive damages against a respondent who intentionally frustrates the claim process through improper behaviour.

Yours truly

M Mitchell

When this email was brought to Mr Catanzariti’s attention, Mr Mitchell says that Mr Catanzariti wrote to him in the following terms:

Dear Mr Mitchell

It has come to my attention that you have sent a message to Ms Claire Keeling through the website “Face book” in relation to your threatened claim arising from your employment with Clayton Utz. At the time the message was sent and received Ms Keeling was an employee of the firm. It is apparent that you identified Ms Keeling as being a member of that site by engaging in an online search process, obtaining information from her member profile and then using that information to contact her. That process, coupled with the tone of the message left to her based on information obtained, is cause for concern. It is reasonable to draw an inference that you have engaged in similar searches for other Clayton Utz staff with whom you are apparently aggrieved. Clayton Utz is committed to the health safety and welfare of its employees: it will not countenance any stalking, harassment or intimidation of its staff by persons who have an issue with the firm. Affected individuals may also want to take independent legal and other steps to protect themselves. Accordingly, if you want to raise any matters or issues in respect of your threatened claim, I would ask that you do so through me.

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