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Around The Firms
16 October, 2009  
Life at Clutz

The NSW ADT has decided there is nothing sexual, as such, in the words “trench” and “trench coat” ... But it doesn’t stop there … Clutz required to defend claims of disability discrimination, sexual harassment and victimisation … Trouble at SCUM

imageThere have been some unfortunate consequences as a result of Michael Mitchell, who used to work as a lawyer at Clayton Utz in Sydney, telling his fellow solicitors that he changed into sports clothes in his office while wearing a trench coat.

It is alleged that subsequently a number of them referred to him as “trench … trench coat … [and] flasher”.

Mitchell has claimed this amounted to sexual harassment.

He also said he is the victim of disability discrimination at the hands of the firm.

He has a number of other complaints, including that he was victimised by Joe Catanzariti, a partner of the firm currently serving as Prez of the NSW Law Society.

All these allegations wound-up in the Equal Opportunity Division of the NSW Administrative Decisions Tribunal, which has just handed down its reasons and orders.

The tribunal had to decide whether to give leave to permit the complaints to proceed, after the President of the Anti-Discrimination Board tossed them out.

Mitchell, who has been diagnosed as bipolar, started working as a lawyer at Clutz in mid-June 2007 and was fired six weeks later, allegedly for engaging in sexually harassing conduct.

He has claimed the real reason he was dismissed was because he refused to provide detailed information about the treatment for his bipolar condition when he was “aggressively” asked “personal and probing” questions about his medical condition by the firm’s health and safety “adviser”, Narelle Rutz.

* * *

Mitchell alleged there was a “culture of harassment” in the Clutz structured capital markets work group (SCM, known in the firm as SCUM).

Michael Mitchell told the tribunal that members of the SCUM group – Garth Williams, Jamie Taylor, Sonia Goumenis, Katie Best and Trevor Robinson – sexually harassed him by calling him “trench” or “flasher” after he changed into sports clothes underneath a trench coat.

He said Williams laughed and made jokes about him, “articulating the association between trench coats and deviant and illegal sexual behaviour”.

He claims he received emails sent between Taylor and Williams that “continued to make fun” of him because “he had changed in his office underneath his overcoat and that that was basically what a flasher did”.

He also alleged Williams explained how solicitors could take paralegals home for sex.

Williams and Clayton Utz deny these allegations.

Mitchell claimed that Taylor entered Mitchell’s office, donned the coat and … “ran up and down the hallway calling out ‘trench, trench, trench’.”

Taylor admitted “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”.

Mitchell alleged that Sonia Goumenis called out “trench” to get his attention.

Mitchell also submitted that Goumenis said in a “sarcastic tone” that “he changes underneath his trench coat next door to me”.

Goumenis had “no recollection of the alleged incidents”.

Mitchell said that he responded to the harassment by asking two of his colleagues on separate occasions whether they were “fantasising about him in his trench coat”.

He said he responded in this way in order to show he was “an easy going person”.

Mitchell also claimed that Katie Best, “stepped off the elevator and referred to him as ‘trench’ without saying another word or losing a step … [and] stood in the hallway and referred to him as ‘trench’.”

Ms Best said that she in fact referred to Mitchell as “trench coat”.

Mitchell claimed that Trevor Robinson, at the time a partner at Clutz, derived “maximum enjoyment” from the name-calling and “did nothing to stop the conduct”.

Robinson denied the allegation.

Magistrate Nancy Hennessy (ADT Deputy President) accepted Mitchell’s evidence that he was called “trench”.

To succeed in his claim of sexual harassment he would have to show that the conduct of his colleagues was “of a sexual nature”.

The tribunal agreed with Clutz’s submission that there is “nothing sexual” about the terms “trench” or “trench coat”.

Because there was no accompanying conduct of a sexual nature leave was refused in relation to the alleged incidents where Goumenis, Best, Williams and Taylor called the complainant “trench” or “trench coat”.

Leave was given for Mitchell’s complaint to proceed with respect to the allegations that Taylor or Williams referred to him as a “flasher” and in relation to the email communication or conduct of the two in making fun of him for changing in his office.

The tribunal found that the alleged comment about how “solicitors could take paralegals home for sex” was “not conduct of a sexual nature in relation to Mr Mitchell”.

Leave to proceed was refused for the complaint of sexual harassment against Robinson.

* * *

Mitchell argued that he was sexually discriminated against because he was treated differently than a woman would have been treated in the manner in which his allegations of sexual harassment were investigated by the firm.

Leave for this claim was refused.

However, two of Mitchell’s complaints of disability discrimination against Clutz were allowed to proceed in relation to meetings with Ms Rutz on June 22 and and July 19, 2007, where he was allegedly questioned about his medical history and treatment.

One of the complaints concerned an allegation that at the July 19 meeting there was no third party present, despite his request that another employee of the firm should be there.

The complaint of victimisation against Rutz and Clutz, as her employer, was also allowed to proceed.

The claim of alleged victimisation by Joe Catanzariti lacked substance and was not allowed to proceed.

ADT reasons and orders