Victorian Civil and Administrative Tribunal|2006-09-15

AB v Adult Multicultural Education Services (Anti Discrimination) [2006] VCAT 1862 (15 September 2006)

Anti-Discrimination List - Equal Opportunity Act 1995 _- s._85 - sexual harassment - employment - vicarious liability - whether conduct complained capable of constituting conduct of a sexual nature.

AB v Adult Multicultural Education Services (Anti Discrimination) [2006] VCAT 1862

1. The complaint is found not proven and is dismissed.

Mr McDougall of counsel, instructed by Wisewoulds Lawyers

Ms A Robertson of counsel, instructed by Monahan & Rowell Lawyers

1 In her complaint referred to the Tribunal from the Equal Opportunity Commission ("the EOC") by letter dated 19 September 2005, AB alleged a number of contraventions of the Equal Opportunity Act 1995 ("the Act"). These include sexual harassment in the area of employment by her manager, CD, while they were employed by Adult Multicultural Education Services ("AMES"); vicarious liability of AMES for CD's conduct; discrimination in the areas of sex, race and physical features by EF, the former Chief Executive Officer of AMES; and victimisation by AMES.

2 At the commencement of the hearing on 3 August 2006, EF's counsel, Ms Robertson, foreshadowed an application to strike out the complaint against him pursuant to section 75 of the Victorian Civil and Administrative Tribunal Act 1998. At the conclusion of AB's evidence, Ms Robertson made her application to this effect. Mr McDougall made a similar application on behalf of AMES. After hearing submissions from Ms Robertson, Mr McDougall and AB, and for reasons given orally at the time of the hearing, I made orders striking out paragraphs 10, 11, 12, 13, 15 & 16(b)(c)(e)(f) of the particulars of complaint insofar as they relate to EF, and sub-paragraphs 16(b)(e) & (f) of the particulars of complaint, insofar as they relate to CD.

3 On the second day of the hearing, I heard a further application from Mr McDougall pursuant to section 75 of the Victorian Civil and Administrative Tribunal Act 1998 to strike out the parts of the complainant's particulars of complaint which alleged victimisation by AMES. After hearing submissions from Mr McDougall and AB, and for reasons given orally at the time of the hearing, I made orders striking out paragraph 16(c) of the particulars of complaint, insofar as it relates to AMES.

4 The allegations which remain to be determined are those of sexual harassment by CD and vicarious liability of AMES for that conduct. At the hearing, AB, CD and Mr David Thorsen, the Human Resources Manager for AMES gave evidence and were cross-examined. The wife of CD gave evidence but was not cross-examined.

5 AB commenced with AMES as a casual employee in July 2003. In August 2003, CD, Regional Manager for the Employment Division of the Eastern Region of AMES, relocated to the Preston office and AB commenced work as his administrative assistant. In early December 2003 AB was offered a 12 month contract position by CD, as a Regional Administrative Officer at AMES' Preston office commencing on 15 December 2003.

6 In early August 2004, AB sent an email to CD alleging psychological harassment by him. When confronted by CD about the allegation, AB told him it was a joke. AB said that she became aware of the employer's policies on sexual harassment and bullying in the workplace after seeing brochures at a conference and that on 20 August 2004 she complained to EF about sexual harassment by CD.

7 AMES did not investigate AB's complaint of sexual harassment with CD, as his employment was terminated for poor performance on 25 August 2004.

8 On 23 December 2004, AB signed a further three month contract with AMES. This contract was not subsequently renewed and AB's employment ceased in March 2005.

9 AB alleges that she was sexually harassed by CD over a period of twelve months. However, many of her claims are so vague and lacking in detail that is impossible to identify any specific allegation against CD. For example, in her statement of complaint AB claimed that CD had begun to "express deeper feelings" towards her within a few months of CD commencing to work as her manager, but did not particularise such conduct. She did not allege that there was any physical contact with CD.

10 At the hearing, AB said that CD:

• spoke to her about his personal life and asked about her personal life;

• told her that he would have liked to meet a woman like her before he had married and had never felt that way about a woman before;

• visited the office on Saturdays when she was at work in order to spend time with her;

• made excessive contact with her after business hours by telephoning her and sending her text messages;

• told her that he had moved branches to work with her because she was "damn gorgeous";

• regularly took her out to lunch, but did not take other staff out to lunch;

• created a new position for her with a salary of $52,000;

• became distant when she rejected his sexual advances and bullied her in the workplace between March and August 2004.

11 AB said that she did not make a complaint at the time of the alleged sexual harassment because she needed her job and did not know who to contact because CD was her manager and he dealt with complaints by staff members against each other. AB agreed that she did complain to CD and Mr Thorsen about psychological harassment by CD.

12 CD denied sexually harassing AB. He said they were friends. He admitted contacting AB after hours by telephone and text messages, but said this was in response to the calls and messages from her. He said she instigated far more calls and text messages to him than the reverse. He denied telling her that he had moved branches to work with her and also denied telling her he had done so because she was "damn gorgeous". CD denied telling AB that he would create a position for her with a salary of $52,000. Rather, he said, her position changed because she was required to report to four regional co-ordinators. He denied deliberately attending work on weekends to spend time with AB and said that she would contact him by phone or text message to ascertain whether he was going to attend the office.

13 CD described AB's behaviour towards him as obsessive because she "demanded" that he stay in contact with her on weekends and became jealous when he spent time with female members of staff. He said his friendship with AB turned sour after a number of incidents in which he had spent time with female co-workers in a professional capacity. He said that AB had blurred the boundaries of their professional relationship by approaching him for advice on a relationship she had commenced with her neighbour. CD also said that AB gave him gifts and organised a surprise party for him. AB agreed that she did so.

14 CD also cited an incident in which AB gave CD a slip of paper with a series of numbers on it and asked CD to guess what they represented. She then told him what they represented. In light of AB's denial that this incident occurred, it is not necessary to include the precise details of her response.

15 At the hearing, AB and CD both agreed that had they experienced a close friendship - meeting each other's families, and travelling together for a day trip to Mt Buller in September 2003. AB said that CD had been sweet and a good friend to her, but that she had come to believe that he had sexually motivated intentions towards her which she said were unwelcome.

16 The prohibition of sexual harassment is contained in section 85 of the Equal Opportunity Act 1995. Sexual harassment is defined in s.85 of the Act as follows:

(1) For the purpose of this Act, a person sexually harasses another person if he or she -

(a) makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the other person; or

(b) engages in any other unwelcome conduct of a sexual nature in relation to the other person -

in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated.

(2) In sub-section (1) "conduct of a sexual nature" includes -

(a) subjecting a person to any act of physical intimacy;

(b) making, orally or in writing, any remark or statement with sexual connotations to a person or about a person in his or her presence;

17 While sub-section (2) is not an exhaustive list of what may constitute conduct of a sexual nature, it provides some guidance as to what words or conduct constitutes such conduct.

18 It is clear from section 85 of the Act that "conduct of a sexual nature" is confined to words or conduct of a sexual nature which can be characterised as sexual or sexually-related[1]. The term has a broad scope and essentially relates to matters which have to do with sexual activity or attraction or relationships[2]. It may refer to physical activities such as touching, pinching or patting in a sexual manner, or may refer to other words or conduct, such as commenting on parts of a person's body regarded as having a sexual function, requesting sexual intercourse, explicit language, indecent exposure, offensive telephone calls, offensive hand or body gestures[3]. Whether conduct or a statement is "sexual" may depend on the circumstances, including where and when and how the conduct occurred, and the understanding of the participants at the time[4].

19 Sexual harassment in the workplace is likely to be covert, and generally speaking, occurs when a person is subjected to unsolicited and unwelcome sexual conduct by another where that person knows or ought to have known that the conduct was unwelcome[5]. The test to be applied to determine whether conduct is of a sexual nature is an objective one and does not take into account the motivation of the perpetrator[6] or the individual. Rather, regard must be had to all the circumstances[7].

20 I am not satisfied on the material before me that the conduct complained of constitutes sexual harassment. This is largely because AB has failed to point to words or conduct of a sexual nature by CD.

21 While I accept that AB believed that CD had sexually motivated intentions towards her and was attempting to manipulate AB into having an affair with him, I am not satisfied on the evidence before me that CD engaged in unwelcome conduct of a sexual nature with AB.

22 AB and CD agreed that they shared a friendship over a number of months during which they spent time together and with each other's families, called and sent text messages to each other after hours. I do not consider that this conduct constitutes unwelcome conduct at all, let alone conduct of a sexual nature. They also agreed that on occasion AB drove CD home from work and bought him gifts, including a book and a tie. This conduct by AB cannot be viewed as conduct of a sexual nature on CD's part. In the context of that friendship, the fact that CD had lunch with AB during working hours, or discussed personal issues with her can hardly be viewed as unwelcome conduct, nor on the material before me can such conduct be said to be conduct of a sexual nature by CD.

23 CD and AB agreed that their friendship changed. From CD's perspective, that change occurred partly because AB became unhappy whenever he interacted positively with other female workers, and partly because he took the opportunity to distance himself from AB when she told him she had developed a relationship with a man. From AB's perspective, the decline in the frequency and nature of her social contact with CD constituted a "betrayal". I take this to mean she was preoccupied and disappointed by it. However, I do not consider that the cooling off of the friendship, even if it occurred at CD's initiative, constitutes conduct of a sexual nature by him.

24 I am also not satisfied on the material before me that a new position was created by CD for AB. Even if this were the case, such conduct, without more, does not constitute unwelcome conduct of a sexual nature.

25 There remain a few alleged incidents which are denied by AB or by CD. For example, CD denied telling AB that he had moved branches to work with her because she was "damn gorgeous". I do not consider that such words, even if they were spoken by CD, constitutes conduct of a sexual nature.

26 In the light of AB's denial concerning the incident outline at paragraph 14 of these reasons, I make no finding in relation to this incident.

27 In light of my findings that AB's allegations against CD are not proven, the complaint against him must be dismissed. It follows that the complaint of vicarious liability against AMES must also be dismissed.

[1] Te Papa v Woolworths Ltd trading as Safeway [2006] VCAT 1222.

[2] Cassandra Evans v Total Food Management (unreported, VCAT No 213 of 1997, 9 February 1999).

[3] Cassandra Evans v Total Food Management op cit; See the examples provided in the Queensland Anti

Discrimination Act 1991, ss118-120.

[4] Te Papa v Woolworths Ltd trading as Safeway [2006] VCAT 1222.

[5] Prolisko v Arthur Knight Management Pty Ltd [2005] VCAT 1754.

[6]Frith v the Exchange Hotel [2005] FMCA 402.

[7] Styles v Murray Meats Pty Ltd [2005] VCAT 2142.

Opportunity Act 1995

AB v Adult Multicultural Education Services

At a glance

Court

Decision date

Source

Judgment (23 paragraphs)

AB v Adult Multicultural Education Services (Anti Discrimination) [2006] VCAT 1862 (15 September 2006)

Parties

Legislation Cited (1)