An application by a former lawyer at Clayton Utz to have the managing partner of Allen & Overy, Grant Fuzi, give evidence into his claim of sexual harassment has been rejected.
Michael Mitchell was a solicitor at Clayton Utz for six weeks in 2007 before he was dismissed over allegations of sexual harassment. Following his termination, Mitchell instigated proceedings against Clayton Utz alleging that he was the victim of disability discrimination, sexual harassment and victimisation.
Mitchell has been diagnosed with bipolar disorder.
In a hearing before deputy president Nancy Hennessy of the NSW Administrative Decisions Tribunal, Mitchell sought a summons to have Grant Fuzi, the managing partner of Allen & Overy, give evidence.
Fuzi was a partner with Clayton Utz during the time Mitchell was with the firm, before leaving to take up the role as managing partner of Allen & Overy in February this year.
In the current application, Mitchell sought the evidence of Fuzi to establish the reasons for his termination.
Mitchell argued that if he was terminated on the grounds of sexual harassment, then he engaged in that conduct because he was sexually harassed himself. He said that Fuzi sent him an email detailing that the allegations against him stemmed from the final three weeks of his employment.
Mitchell argued that this email demonstrates that he behaved appropriately over the first three weeks of his tenure, and that inappropriate sexual behaviour towards him during this period materially contributed to his own behaviour, for which he was terminated.
Mitchell alleges that colleagues at Clayton Utz called him "trench" or "trench coat", with accompanying comments of a sexual nature.
Deputy president Hennessy rejected Mitchell's argument.
She found that the content of Fuzi's email was irrelevant to any issues in dispute in this hearing. Deputy president Hennessy also found that because Mitchell withdrew his application of financial compensation last month, any evidence about financial loss or damage is entirely irrelevant, including any evidence that Fuzi might bring.
Mitchell was however, successful with other applications before the Tribunal.
Now residing in Canada, he was successful in asking that the evidence of his treating psychiatrist could be tendered by telephone, and was also successful in seeking orders that an additional medical professional could also provide evidence via correspondence.
Mitchell was also successful in obtaining orders that emails sent by staff at Clayton Utz, mentioning his practice of getting changed in his office, or referring to his over coat or trench coat, be released.
Further applications by Mitchell for documents that state why Clayton Utz terminated his employment, and documents that detail sexual harassment complaints against him and subsequent investigations were rejected.
Mitchell's initial claims against Clayton Utz were rejected by the NSW Anti-Discrimination Board, with the NSW ADT granting leave to hear the claim last year.
Just last month the NSW Supreme Court granted leave to another former Clayton Utz lawyer to bring a claim of harassment against the firm.
The time it is taking Michael Mitchell's claims against Clayton Utz to be resolved have dwarfed the turbulent six weeks he spent with the firm.
Lawyers Weekly provides the following Mitchell vs Clutz timeline:
June 2007 - Michael Mitchell joins Clayton Utz
July 2007 - Sacked by Clayton Utz amidst allegations of sexual harassment.
Mitchell, who has been diagnosed with bipolar disorder, makes numerous complaints to the NSW Anti-Discrimination Board alleging that he was the subject of sexual harassment, disability discrimination and victimisation. The Board dismissed his claims
September 2009 - Lawyers Weekly reports Mitchell has been accused of actions that could amount to stalking, harassment or intimidation by Joe Catanzariti, the national human resources partner at the firm and current President of the NSW Law Society, after posting a Facebook message to a former colleague. Mitchell asked for the address of a human resources manager via facebook, in order to serve her documents relating to a claim for discrimination he was making before the NSW Administrative Decisions Tribunal (ADT).
October 2009 - The NSW ADT grants Mitchell leave to proceed with claims of disability discrimination, sexual harassment and victimisation against Clayton Utz. The Tribunal hears Mitchell was called "trench" and "flasher" by colleagues, when he told them he changed into sports clothes beneath his trench coat. Mitchell claims he responded by asking if that fantasised about him, to indicate he was "an easy going person". Mitchell releases a statement to Lawyers Weekly stating it was "deeply troubling" that the President of the Anti Discrimination Board dismissed his complaints.
February 2010 - The ADT corrects its decision that Mitchell couldn't pursue claims he was sexually harassed by allegedly being called "trench" or "trench coat". The ADT grants Mitchell leave to pursue his claim he suffered sexual harassment if he was called "trench" or "trench coat" if those comments were followed by conduct of a sexual nature.
April 2010 - The NSW ADT ruled that Mitchell could not add the names of other current and former lawyers of Clayton Utz to the complaint, including Grant Fuzi, now the managing partner of Allen & Overy's Australian arm.
July 2010 - Mitchell is unsuccessful in a claim before the ADT in asking for a summons for Grant Fuzi to give evidence. The Tribunal hears that Fuzi sent Mitchell an email detailing allegations of sexual harassment against him. Mitchell is successful with further requests seeking a summons to release staff emails at Clayton Utz referring to Mitchell's over coat or trench coat, and to have medical specialists give evidence via the telephone in absentia.