(a) The application would not be adjourned.

(b) The matter would proceed noting that Dr Smith was not available.

(c) Dr Smith's report would be admitted notwithstanding that he was not available for cross-examination.

(d) If the respondent's counsel wished to call Dr Smith on a later date the application would be adjourned to another date for that purpose only.

(e) If the respondent decided not to call Dr Smith, and the applicant was therefore denied the opportunity to cross-examine him, that lack of opportunity would be considered by the Tribunal in its deliberations.

(f) Both Ms Morris's reports would be allowed into evidence.

(g) Any matters that were considered by Ms Morris and which the respondent's counsel considered to be hearsay would be given the weight warranted in the circumstances.

1. The respondent did not seek a further date to call Dr Smith.
2. Ms Morris was available for cross-examination by AVL and gave evidence on the day of the hearing.
3. The Tribunal considers it unfortunate that it could not hear from Dr Smith. Nonetheless, the decision was made by the respondent, and the Tribunal has done its best with the evidence before it.

1. The Tribunal's role is to determine what remedy, if any, should arise from the previous findings of the Tribunal.
2. The Tribunal must make one or more of the following orders pursuant to section 53E(2) of Human Rights Commission Act 2005 (HRC Act):

(a) that the person complained about not repeat or continue the unlawful act;

(b) that the person complained about perform a stated reasonable act to redress any loss or damage suffered by a person because of the unlawful act; and

(c) unless the complaint has been dealt with as a representative complaint - that the person complained about pay to a person a stated amount by way of compensation for any loss or damage suffered by the person because of the unlawful act.

1. In her submissions on remedy, the applicant traversed the background to the application, its procedural history and the powers of the Tribunal.
2. The applicant sought the following orders:

(a) an order pursuant to section 53E(2)(b) of the HRC Act that the respondent apologise to the applicant;

(b) an order pursuant to section 53E(2)(b) of the HRC Act that the respondent conduct a review of its policies and procedures to support individuals who are breastfeeding to return from parental leave; and

(c) an order pursuant to section 53E(2)(c) that the respondent pay the applicant damages for pain and suffering, humiliation and distress.[2]

1. The applicant submitted that damages in discrimination law is to be determined by reference to the language of the statute, in this case the Human Rights Commission Act 2005 (HRC Act), as well as its scope and purpose.[3]

Applicant's submissions regarding general damages

1. The applicant submitted that the Tribunal has to first determine whether the applicant has suffered any loss or damage and then to determine whether the respondent's conduct materially contributed to that loss or damage.[4] This submission was said to be supported by the approach of the Full Federal Court when it assesses damages in the context of section 46PO of the Australian Human Rights Commissioner Act 1986 (Cth).
2. The applicant submitted that the Tribunal should take into account general standards prevailing in the community and that it has been accepted that the community now accords a higher value to compensation for pain and suffering and loss of enjoyment in life.[5]
3. The applicant submitted:
   1. In relation to the factors set out in section 53E(3)(a) - (b) of the HRC Act the applicant submits that the following considerations are of particular significance:

a) The respondent's conduct impacted the applicant's right to substantive equality, in that she was unable to return to the workplace from November 2021 to March 2022 in accordance with her workplace rights, and when she did return to work, she was subjected to further disadvantage and harm on account of her protected attribute. > > > b) The impact of the respondent's conduct on the applicant was significant and had a demonstrated impact on her right to dignity. This is evident both from the applicant's formal diagnoses, which are detailed at [24] about and described in Leesa Morris's report and from the applicant's feelings of distress, humiliation, loss of enjoyment in life, which were set out in her witness statement and summarised at [50] of the liability decision.[6]

(a) A diagnosed psychiatric injury of adjustment disorder with mixed anxious and depressed mood.

(b) An aggravation of a diagnosed pre-existing psychiatric injury of complex post-traumatic stress disorder.

(c) Humiliation, distress and loss of enjoyment of life.

1. In relation to the claim for humiliation, distress and loss of enjoyment of life, the applicant relies on her evidence at the liability hearing and the findings of the Tribunal in that regard. The applicant submitted her damage was exacerbated by the conduct of the respondent occurring when the applicant was particularly vulnerable as a young mother returning to the workplace.
2. On the basis of the material before the Tribunal, the applicant submitted the Tribunal should have no difficulty finding that the applicant suffered loss and damage and that that loss and damage was materially contributed to by the unlawful conduct of the respondent identified by the applicant.
3. In relation to the nature of the discrimination and any mitigating factors (see subsection 53E(3)(d) and (e) of the HRC Act), the applicant submitted that the Tribunal should take into account the following:

(a) The period of time over which the discrimination occurred. The applicant first began discussing her request for flexible work arrangements to accommodate her breastfeeding and parental responsibilities with the respondent in September 2021 and made a formal written application in relation to the same on 26 October 2021. As found at paragraph [149] of the liability decision, because adjustments to accommodate expressing were not approved from November 2021 and March 2022, the applicant's only choices if she returned to work was to accept a demotion or to express before or after her 8-hour shift. When the applicant did return to work on 25 March 2022, there were no satisfactory arrangements in place for the applicant to express when she was the sole manager on site. This situation continued until the applicant resigned from her employment in November 2022. The applicant therefore submits that the Tribunal should take into account that the discrimination was deliberate and sustained and occurred over an extended period.

(b) That the conduct continued even after the applicant made a complaint. The applicant repeats the matters set out in (a) above and emphasises that the applicant made a non-dismissal based general protections claim on 4 November 2021 and made her discrimination complaint to the ACT Human Rights Commission on 11 February 2022.

(c) The fact that the unlawful conduct continued following these complaints is an aggravating factor.

(d) That the conduct continued in circumstances where the respondent was on notice that it was causing injury to the applicant. The applicant submits that the Tribunal should have regard to the fact that from on or around 9 November 2021, the respondent was on notice that the applicant had become unfit for work. Further, from at least in or around 21 December 2021, the respondent was specifically on notice that the applicant's general practitioner had formed the view she was suffering from an adjustment disorder, and that this disorder was caused by workplace stress and associated with the respondent not allowing her to express in a safe environment. That there appears to have been little change in the respondent's conduct following them being put on notice that the applicant had suffered injury because of their unlawful conduct is, again, an aggravating feature of their conduct.

(e) That the discrimination took place in a workplace. The applicant submits this is a relevant consideration, as employment relationships are categorised by significant power imbalances between employees and employers and economic realities will often mean that employees have little choice but to continue working for an employer.

(f) That the respondent is a large business and employer. The Tribunal should take into consideration that the respondent is the largest private KFC franchisor in Australia and that it employs approximately 6,000 people. Additionally, and interrelated to its scale, the respondent had separate human resources staff and on the evidence before the Tribunal, access to legal assistance from at least 5 January 2022.

(g) The absence of mitigating factors. The applicant is not aware of any compelling mitigating factors that would reduce the quantum of damages that should be awarded. The applicant had to pursue a defended hearing as a result of the respondent's conduct.[7]

1. The applicant submitted that the general community has a clear expectation that women with breastfeeding and parenting responsibilities, are supported to re-enter the workplace following maternity leave. The community would recognise and place significant weight on the foreseeable hurt and injury to a person with the applicant's attributes as a result of not being supported to return to work.
2. The general community would condemn the manner in which the respondent dealt with the applicant's reasonable request for a private and comfortable space to express. It would recognise that humiliating experiences within the workplace at such a young age can have serious and long-standing consequences for a person with the applicant's attributes, and significantly impact on that person's confidence, dignity and self-worth.
3. As to quantum, the applicant submitted:
   1. It is accepted that comparative cases within this Tribunal, and in the Federal jurisdiction ought to be taken into account in assessing quantum. In that regard, Burley J of the Federal Court of Australia recently commented as to calculation of general damages:[8]

It is of course correct to compare and, if appropriate, contrast factual findings as to the extent of injury suffered in assessing compensable harm in comparable cases in consideration of the correct allocation of damages. No two cases will be precisely the same and each must be considered on its own facts.[9]

1. The Tribunal's focus should be on providing meaningful compensation for loss suffered. While that there have been relatively few cases in the ACT, and that these that have typically fallen at the lower end of the scale of damages,[10] the scarcity of such cases should not be treated as a barrier to the Tribunal making a significant award in this case.[11]
2. In relation to comparable cases, the applicant referred to both Wang v Australian Capital Territory (Discrimination) [2016] ACAT 71 (Wang)[12] and Kovac v Australian Croatian Club Limited (No 2) [2016] ACAT 4 (Kovac).[13] The applicant submitted that the damages in the applicant's circumstances should be higher than the damages in either case. The applicant referred to cases which would support an award of comparable general damages. These included Richardson v Oracle Corporation Australia Pty Ltd[14] (Richardson); Huntley v State of NSW, Department of Police and Justice (Corrective Services NSW)[15] (Huntley); and Gutierrez v MUR Shipping Australia Pty Ltd[16] (Gutierrez).
3. In Huntley, the discrimination was sustained but the psychiatric injury was to some degree pre-existing.
4. In Gutierrez, the relevant conduct was significant and although the damage included a diagnosed psychiatric injury it involved a single incident of age-based discrimination and was not sustained.
5. In Wang, there was no diagnosed mental injury. In Kovac, the applicant suffered a diagnosed mental injury but there were no findings as to when those symptoms would resolve. In addition, the discrimination in this application was of a sustained nature. In neither case did the discrimination arise in an employment relationship where the applicant had a limited ability to avoid the discrimination and its adverse effects.
6. The applicant concedes that the circumstances in this application do not meet the egregious circumstances concerning outcome in Willett v Victoria.[17]
7. The applicant submitted that the appropriate range for an award of general damages in this case was between $70,000 and $100,000.[18]

1. The applicant seeks special damages based on future out-of-pocket expenses. The applicant relies on the diagnosis of Ms Morris regarding the applicant's pre-existing PTSD said to be aggravated by the respondent's unlawful conduct. Ms Morris recommends a process of graduated sessions from weekly sessions to monthly sessions over a two-year period. The applicant calculated this to amount to be $20,700 requiring up to two years of psychological treatment.

1. The applicant submitted that aggravated damages should be awarded in this case relying on the statement of May LJ in Alexander v Home Office[19] cited with approval in the Federal Court by Lockhart J in Hall v Sheiban.[20] His Honour determined that the circumstances in which the defendant's conduct takes place might give rise to work-related aggravated damages e.g. sexual harassment in the context of employer and employee relationship, because of the power imbalance, could give rise to an element of aggravation.
2. Aggravated damages have been found to be available when the respondent's conduct after the complaint until the hearing added to the applicant's distress and hurt**,**[21] and where the respondent's case is conducted in a manner which is "unjustifiable, improper and lacking in bona fides".[22]
3. The applicant submitted that it would be appropriate for the Tribunal to award aggravated damages in the context of this case because given the nature of the respondent's conduct and the manner in which it conducted its case. In particular:

(a) the conduct was of a prolonged and sustained nature;

(b) the conduct continued after the applicant made general protections, and

(c) it continued after the applicant notified the respondent that she was suffering from an injury related to its discriminatory conduct.[23]

1. The fact that the applicant was obliged to conduct this application without any concessions on liability should also be taken into account when assessing aggravated damages.
2. The applicant submitted that in the circumstances of this matter, including the vulnerabilities of the applicant, the unlawful conduct occurring in the context of an employment relationship, the sustained incidence of discrimination; the evident harm to the applicant and the total absence of mitigating factors all warrant an award of aggravated damages in the amount of $15,000.[24]

1. In its submissions on remedy, the respondent traversed the findings of the Tribunal in its decision on liability, the Tribunal's power to order a remedy, and it acknowledged that an order for financial compensation was appropriate in this case.
2. In response to the applicant's claim for financial compensation as general, special, and aggravated damages, the respondent distinguished the cases relied upon by the applicant as follows:

(a) In Richardson, the applicant's suffering from the relevant disorder had ceased whereas in this application the disorder is continuing in addition to the aggravation of a pre-existing injury.

(b) Whilst the respondent admits that the applicant suffered a psychiatric injury as a result of its conduct, it disputes the nature of that injury and its continuing effect on the functioning of the applicant as described by Ms Morris.

1. The amount sought by the applicant is not consistent with the principles for calculation of damages in discrimination cases, not supported by the evidence, and disproportionate to the approach taken by the tribunal in all other discrimination cases, including cases that the respondent submits involve much more serious conduct.
2. In determining the appropriate quantum of compensation, the Tribunal must have regard to the factors in section 53E(3) of the HRC Act that reflect the community's expectations that monetary awards should adequately compensate a victim of discrimination for the serious consequences of unequal treatment.
3. The respondent's submissions on remedy states that:

Since Richardson v Oracle Corporation Australia Pty Ltd, anti-discrimination tribunals, including this Tribunal, have recognised the need for awards of 'general damages' in discrimination cases to reflect community standards that now "accord a higher value to compensation for pain and suffering and loss of enjoyment of life than before".[25] (citation omitted)

1. In particular, the Tribunal referred to the Queensland decision of Green v Queensland, Brooker and Keating (Green),[26] in which the Queensland Civil and Administrative Tribunal (QCAT) reviewed decisions since Richardson, concluding that damages awards had generally increased but not to the extent of Richardson. The member in Green emphasised the need to ensure consistency across damages awards, pointing out that it would not be fair to litigants to dramatically depart from the development of case law:

Similar principles apply here, although considerations of consistency must also consider community expectations as per Richardson, the development of case law in jurisdictions other than this Tribunal and past decisions within the Tribunal.

1. The respondent accepts that the applicant has suffered a psychiatric injury as a result of its conduct but rejects the nature of that injury and level of its effect on the applicant suggested by the applicant's expert forensic psychologist Ms Morris in her second report of 7 November 2023.
2. The respondent relies on the evidence of Dr Cohen, qualified psychiatrist, filed by the applicant's representatives in July 2022 in connection with her workers compensation claim[27] and Dr Smith psychiatrist whose examination of the applicant was arranged by the respondent.
3. Dr Cohen diagnosed the applicant with an adjustment disorder with mixed anxiety and depressed mood which was significantly contributed to by her employment with the respondent. She found no pre-existing injury.
4. Dr Smith found that the applicant suffered from the adjustment disorder identified by Dr Cohen. However, Dr Smith found that the applicant's condition had improved to the point where she no longer suffers from any diagnosable psychiatric condition. He also disagrees with Ms Morris's diagnosis of post-traumatic stress disorder or any aggravation of that condition. He noted and relied on the absence of clinical markers for that disorder.
5. The respondent submits that Dr Smith's diagnosis is consistent with the applicant's current ability to study and work following her resignation from the employment of the respondent.
6. The respondent urges the Tribunal to prefer the diagnostic opinion provided by Dr Cohen and Dr Smith.

1. The Tribunal is empowered to make orders under section 53E of the HRC Act to issue orders to remedy its decision regarding liability. The Tribunal must make an order contemplated by the statute:

S53E Kinds of orders - unlawful acts under the Discrimination Act

(2) The ACAT must make 1 or more of the following orders:

(a) that the person complained about not repeat or continue the unlawful act;

(b) that the person complained about perform a stated reasonable act to redress any loss or damage suffered by a person because of the unlawful act;

(c) unless the complaint has been dealt with as a representative complaint - that the person complained about pay to a person a stated amount by way of compensation for any loss or damage suffered by the person because of the unlawful act.

_(3) In making an order under subsection (2) (c), the ACAT must consider - _

(a) the person's right to equality before the law and the impact of the discrimination on the enjoyment of that right; and

(b) the inherent dignity of all people and the impact of the discrimination on the person's dignity; and

(c) the public interest in ensuring an appropriate balance between the right to equal and effective protection against discrimination and equality before the law without distinction or discrimination and other human rights; and

(d) the nature of the discrimination; and

(e) any mitigating factors.

1. The Tribunal accepts the diagnosis provided by Dr Cohen and Ms Morris, with which Dr Smith, agrees, that the applicant suffers from an adjustment disorder with mixed anxiety and depressed mood.
2. The Tribunal does not accept Dr Smith's conclusion that the applicant's incapacity has ceased. This opinion is not supported by those of Dr Cohen and Ms Morris.
3. Dr Smith is well-qualified and we do not doubt his expertise. The difficulty we have in accepting his evidence is that it is not clear that he had a full and relevant history, particularly when compared to Ms Morris. Our concerns may have been addressed had Dr Smith been made available for cross examination, but he was not, despite the opportunity to call him having been provided to the respondent by the Tribunal. This makes it difficult to give his evidence the same weight as Dr Cohen's and Ms Morris'.
4. As to Ms Morris's later diagnosis of an aggravation of a diagnosed pre-existing psychiatric condition of a complex post-traumatic stress disorder, the Tribunal is not minded to accept this diagnosis. Dr Cohen examined the applicant at a time when she was seriously affected by the conduct of the respondent. She did not diagnose any post-traumatic stress disorder at that time. Dr Cohen's diagnosis is consistent with Ms Morris's diagnosis of the same condition in her first report.
5. The applicant may have had pre-existing trauma arising from her family situation which might also have made her more vulnerable to injury from the conduct of the respondent, and if so, the respondent must take the applicant as it finds her. However, there is insufficient evidence to establish a causal link between her employment with the respondent and an aggravation of that pre-existing condition.
6. The Tribunal finds the applicant suffered an injury, being an adjustment disorder with mixed anxiety and depressed mood, which was materially contributed to by the discriminatory conduct of the respondent.

1. Section 53E(2)(c) of the HRC Act provides that the tribunal may award "compensation for any loss or damage suffered by the person because of the unlawful act".
2. In Kovac,[28] the Tribunal adopted the principal that compensation is designed to place an applicant in the position they would have been in had there not been an act of unlawful discrimination committed against them. The Tribunal also adopted the comments of the Full Court of the Federal Court in Hall v Sheiban[29] and Qantas v Gama[30] acknowledging "_..._an analogy with tortious principles whilst recognising that the measure of damages was not to be found in the law of tort but rather in the words of the statute". In the assessment of general damages, we will do likewise.
3. The assessment of damages must be independently and objectively assessed in every case. Although no arbitrary limit on damages should be imposed because of previous decisions on quantum, as per the reasoning in Green, a reference to comparable decisions in all jurisdictions must be considered helpful.[31] We have been unable to find any previous decisions on breastfeeding discrimination, and as such we cannot draw upon any directly analogous decisions. However, we have found some guidance in cases that involve gendered, workplace discrimination, particularly those to do with family and caring responsibility, as well as other cases of serious and sustained acts of discrimination.
4. The applicant submitted that in the absence of decisions about breastfeeding, the Tribunal should be guided by awards of damages cases involving sexual misconduct and consequent discrimination, such as that in Richardson. We agree, and have considered a number of cases involving general and caring related discrimination, including the more recently decided case of Victorian Civil and Administrative Tribunal (VCAT) in Collins v Smith (Collins)[32] a case involving a "grave example of sexual harassment"[33] in which general damages of $180,000 were awarded. We have also had regard to the useful comments identified by the respondent in Green.
5. In Richardson, the Full Court of the Federal Court raised the quantum of general damages from a "comparable" figure of $18,000, consistent with other cases, to $100,000 just for general damages so as to reflect prevailing modern standards for substantive equality and treatment (e.g. in areas of sexual harassment, amounting to sex discrimination, and racial discrimination). The applicant seeks to rely on the principles, adapted to the community expectations that reasonable arrangements will be made to allow breastfeeding parents to return to work.
6. Citing Richardson, VCAT in Collins awarded the applicant $180,000 in general damages (being damages for hurt, humiliation and distress) for "grave"[34] conduct that included inappropriate touching, sexual propositions and sexual demands. Collins had suffered severely as a direct result of the respondent's sexual harassment, having been diagnosed with a chronic post-traumatic stress disorder, a major depressive disorder and an anxiety disorder, all of which required on-going medical and psychological treatment. Judge Jenkins observed that:

Having regard to the objects set out in the EOA, it is incumbent upon the Tribunal to have particular regard to the need to eliminate sexual harassment, to the greatest possible extent, in the workplace; and to encourage the identification and elimination of sexual harassment.[35]

1. The respondent described cases such as Richardson and Green as "worst case scenarios", and therefore not applicable to the current matter. We do not accept this. While not seeking to in any way understate the seriousness those cases, we are satisfied that there may be examples of discriminatory behaviour that do not involve sexual misconduct but which can be categorised as "worst-case" scenario. It is not a limited class of conduct.
2. The circumstances of the present case are serious. The discrimination was gendered and involved a significant power imbalance between the employee and the employer, a large franchisee with significant resources available to it, including human resources and legal staff. The applicant was young, inexperienced, and in a vulnerable position as a first-time mother. Moreover, the respondent's response to the applicant's request for flexible arrangements to enable her to express milk for her child is hard to explain. It had the resources necessary to enable it to understand its obligations, and the skills, experience and the resources necessary to obtain legal advice regarding its obligation to comply with legislation. Its discriminatory conduct was sustained over months. None of the possible explanations for its conduct, of which indifference appears to be a likely explanation, alters the outcome for the applicant.
3. As such, we agree with the applicant that a starting point should be Richardson, and particularly the observations of the Court in Richardson about the need to acknowledge the community's deeper per appreciation of the experience of hurt and humiliation that victims of sex-based discriminatory behaviour, and the value of loss of enjoyment of life occasioned by mental illness or distress caused by such conduct.
4. However, in taking account of the reasoning in Richardson we are reminded of the QCAT in Green and also, more recently, of the observations of Katzmann J of the Federal Court in Taylor v August and Pemberton Pty Ltd [2023] FCA 1313 (Taylor), that compensation should reflect:

the significant and fundamental shift in community standards since Richardson was decided in 2014

The purpose of damages is to compensate the applicant for the harm caused to her by the sexual harassment she suffered, not to reflect the community's appreciation of the extent of harm that can be occasioned by sexual harassment.[36]

1. General damages are, after all, compensatory, not punitive and the focus must be on the actual harm to the applicant. Nonetheless, in assessing damages, it is appropriate to have regard to community expectations as a barometer of the kind of expectations that the applicant reasonably has and the hurt suffered when those are not met. Further, consistent with Richardson, community expectations are now that hurt feelings, including mental harm, are treated as serious and compensated accordingly when caused by impermissible discrimination.
2. The observations of the NCAT appeals division in Yelda v Sydney Water Corporation[37] (Yelda) are relevant here. Although the cause of action in that case was different, Dr R Dubler SC, Senior Member and Professor J Goodman-Delehanty, General Member, dealt with a sexual harassment claim involving a significant injury arising from the conduct of an employer and another party in publishing a poster offensive to the applicant. We endorse their observation that:

We note the relevant principles with respect to quantum for general damages and in addition, psychological injury.

...damages in the field should recognise the seriousness of hurt feelings or pain and suffering (usually referred to as 'general damages') and, in this case, stress, anxiety and depression caused by a contravention of the ADA. Concerning the quantification of damages for hurt feelings and stress, the courts have repeatedly asserted that awards for such loss "should not be minimal, because this would tend to trivialise or diminish respect for the public policy": Richardson's case [2014] FCAFC 82 per Kenny J quoting the English Court of Appeal in Alexander v Home Office [1998] 1 WLR 968 at 975.[38]

1. Having regard to the findings in the liability decision, these are matters that require consideration in the assessment of the applicant's damages:

(a) Her request for a private space to express milk was met with a long period of inactivity.

(b) The applicant was spoken to about her breastfeeding needs by two senior mature adult males who asked invasive questions.

(c) It was recommended to her by a senior human resources officer that she express her milk in the toilets as that officer had done in her breastfeeding years.

(d) As an eventual solution to her needs, she was provided with and required to sit inside a camping toilet tent inside a storeroom without a door. All employees had access to the storeroom. She was required to assemble the tent herself on every occasion she wished to express.

(e) There was no attempt to provide a door for the storeroom which would have provided privacy. The relevant senior employee in charge of such matters gave evidence that it would have been too expensive. However, no quote was ever obtained.

(f) It was suggested to her, in what was more probably than not an illegal proposition, that she should give up her permanent management position, of which she was quite proud, and become a casual employee.

1. Another factor is the loss of the maternal opportunities. Instead of enjoying adjusting to her life as a mother and obtaining the best circumstances for her child she was obliged to engage in a continuous battle to obtain a response from the respondent that would meet minimum community standards. It was a battle she lost. The outcome was a mental illness and personal suffering as has been outlined in the evidence to date. She cannot get that time back.
2. A further, significant factor in the Tribunal's consideration of general damages has been the applicant's development of a psychological condition as a result of her treatment by the respondent. The effects of this illness have been moderately long term and, whilst the evidence is that this condition will likely resolve with treatment over a twelve-month period, it was a significant injury for a young person at a significant period in her life.
3. The applicant has sought and found new employment and direction in her studies. She is to be commended for this. However, what she lost was her pleasure and pride in the career she already had. She commenced as a junior with the respondent, and she had progressed to management. She expected reciprocal loyalty and support for the loyalty which the Tribunal accepts she provided to the respondent during her employment.
4. Having regard to all these considerations, the Tribunal finds that the respondent injured the applicant by engaging in conduct that did not meet community standards of which the applicant reasonable expected to be entitled and these circumstances, both individually and cumulatively, contributed to the loss or damage suffered by the applicant in the form of pain and humiliation to which we must assign a compensatory value that appropriately reflects that loss.

1. The Tribunal has considered the applicant's hurt and humiliation jointly with her psychological injury when assessing general damages. The applicant's psychological injury is moderately long-term and very distressing. The hurt and humiliation she suffered was significant. The lost opportunity of employment in a field and with an employer she admired was significant, but she has recovered her position. The loss of the opportunity to enjoy without restraint the experience of breastfeeding her first child cannot be regained and its loss is significant.
2. Looking, then, to relatively recent sexual harassment cases, noting those already cited above.
3. In Poniatowska v Hickinbotham,[39] Mansfield J held that the applicant had been discriminated against on the basis of her sex and sexually harassed in the course of her employment. Mansfield J found that the applicant had developed a mental illness - namely an adjustment disorder with mixed anxiety and depression - as a result of the unlawful discrimination.[40] The applicant was awarded $90,000 for past and future disadvantage for pain and suffering.[41]
4. In Ewin v Vergara (No 3) [2013] FCA 1311, the application was awarded $110,000 in general damages for sexual harassment that included inappropriate gestures, language and physical contact.
5. In Oliver v Bassari (Human Rights) [2022] VCAT 329,VCAT awarded $150,000 as general damages for sustained sexual harassment over a period of about ten months in the course of employment.
6. In Taylor, Katzmann J awarded the applicant general damages of $140,000 for the sexual harassment and $40,000 for the victimisation over 22 months of her employment. The applicant exhibited symptoms of anxiety and depression after the conduct complained of and there was no dispute she had a psychiatric disorder which had not previously been diagnosed.
7. The applicant in Yelda suffered significant long-term psychological damage beyond that suffered by the applicant in this application. The Tribunal assessed the applicant's general damages for injury to feelings and psychological injury at $70,000.
8. Turning to cases of discrimination on the basis of family and caring responsibility, we note compensation has generally been lower, although many of the oft-cited cases are older and pre-Richardson.
9. In Howe v Qantas Airways Ltd,[42] the respondent was found to have unlawfully discriminated against the applicant on the basis of her pregnancy by refusing her access to her accumulated sick leave when she was unable to continue to work as a "long haul" flight attendant by reason of her pregnancy. The applicant was awarded $3,000 in general damages for non-economic loss (distress).
10. In Mayer v Australian Nuclear Science & Technology Organisation,[43] the Federal Magistrates Court awarded the applicant $5,000 for non-economic loss a depressive episode as a consequence of discrimination indirectly discriminated against her on the grounds of sex by failing to offer part time work.
11. In Song v Ainsworth Game Technology Pty Ltd,[44] the then Federal Magistrates Court awarded the applicant $10,000 general damages in respect of a claim that the applicant's dismissal involved discrimination on the ground of family responsibilities in contravention of the Sex Discrimination Act 1984 (Cth). The applicant had sought to vary her employment to enable her to pick up her child from kindergarten, and therefore the respondent reduced her position from full-time to part-time. Allowing for inflation, the award is closer to $17,500 today.
12. In Evans v National Crime Authority,[45] Raphael FM awarded the applicant $25,000 for non-economic loss, including for a depressive episode of moderate severity with symptoms following discrimination on the basis of absences due to family responsibilities. In upholding the appeal, Branson J held that the appropriate award for non-economic loss was $12,000, equivalent to $20,413 in today's terms.
13. More recently, in Halimee v Santarelli T/A Seaside Salon,[46] the Equal Opportunity Tribunal of South Australia awarded $5,000 after finding an employer's attitude toward an employee changed after she became pregnant, although there were other matters that led to the conclusion of her employment. In Bevilacqua v Telco Business Solutions (Watergardens) PL No 2,[47] VACT considered $10,000 in general damages as appropriate to compensate the applicant for hurt and humiliation she experienced due to comments about taking sick leave and comments about toilet breaks while suffering from morning sickness.
14. Looking further afield, at other forms of discrimination, in Complainant 201908 v Commissioner For Fair Trading,[48] (Complainant 201908) ACAT awarded $15,000 compensation in non-economic losses "for exacerbation of the Applicant's pre-existing illness for the period from the denial decision to November 2019, pain and suffering and for ongoing stress and humiliation" over a period of about a year, similar to the present case. However, Complainant 201908 involved reliance upon an irrelevant criminal record, and hence was of quite a different nature of that in the present case. That case also did not involve the same kind of established and ongoing relationship between the partes, nor any of the same expectations.
15. The Tribunal acknowledges that decisions in Complainant 201908, Kovac and the decision of Wang[49] represent the outer end of damages awarded by this tribunal in discrimination matters prior to the hearing of this matter and acknowledges the higher award. However, the desirability of consistency within the tribunal is only one consideration and should not derogate from making an appropriate award of compensation having regard to the evidence before the tribunal in a particular case. Consistency is also served by reviewing factually similar cases across other jurisdictions with similar legislation and perhaps more litigation.
16. In summary, a review of other decisions across comparable jurisdictions is indicative of a wide variety of award of compensation, each of which is determined by its particular facts, including the relationship between the parties, the vulnerabilities of the applicant, and the community expectations.
17. The particular facts we have had regard to in this case include:

(a) the substantial stress caused to the applicant;

(b) the significant period of time over which it took place;

(c) the power imbalance between the parties;

(d) the existence of an established medical diagnosis, including depression and anxiety, panic attacks;

(e) the consequences for the applicant's feelings of satisfaction and self-worth; and

(f) the consequences for the applicant's career.

1. Taking into account these factors, and having regard to the awards made in other cases, we are satisfied that an award of $80,000 in general damages is appropriate.

1. The tribunal has the power to award aggravated damages as an additional form of compensation (to general damages) under section 53E of the HRC Act and the tribunal has made such awards in the past. For example, in Bottrill v Bailey,[50] the Tribunal observed that:

Aggravated damages may be awarded when the conduct of the respondent ... has been such as to increase the hurt suffered by the applicant. While such conduct need not be malicious, to justify such an award, it must be unjustifiable, improper or lacking in bona fides.

1. The question is whether it should do so in this case.
2. Aggravated damages are given to compensate the plaintiff when the harm done to him by a wrongful act was aggravated by the manner in which the act was done.[51]
3. In Hall v Sheiban [1989] FCA 72, Justice Lockhart recognised that such damages were available in discrimination matters, citing authority to the effect that aggravated damages may be awarded where a defendant behaved "high handedly, maliciously, insultingly or oppressively in committing the act of discrimination."
4. However, as was observed by Katzmann J in Taylor, the principle that damages are compensatory, not punitive, remains:

523. Aggravated damages are compensatory (rather than punitive) in nature, "awarded for injury to [an applicant's] feelings caused by insult, humiliation and the like": Lamb v Cotogno [1987] HCA 47; (1987) 164 CLR 1 at 8 (Mason CJ, Brennan, Deane, Dawson, Gaudron JJ).

524. Where appropriate, aggravated damages may be awarded as "[a]dditional compensation for the injured feelings of [an applicant] where [the applicant's] sense of injury resulting from the wrongful physical act is justifiably heightened by the manner in which or the motive for which the [respondent] did it": Cassell & Co Ltd v Broome [1972] UKHL 3; [1972] AC 1027 at 1124 per Lord Diplock. But aggravated damages many also be awarded to an applicant whose distress is made worse by the respondents' conduct after the wrongful act or acts are committed: Triggell v Pheeney [1951] HCA 23; (1951) 82 CLR 497 at 514 (Dixon, Williams, Webb and Kitto JJ). That includes the conduct of the defence but is not limited to the conduct of the defence.

525. Aggravated damages can only be awarded, however, if the conduct of the Respondents was improper, unjustifiable or lacking in bona fides: Triggell v Pheeney at 514. The mere persistence, even if vigorous, in a bona fide defence in the absence of improper or unjustifiable conduct is not enough: Coyne v Citizen Finance Limited (1991) 172 CLR 211 at 237 (Toohey J, with whom Dawson J and McHugh J agreed at 222 and 239 respectively).[52]

1. In Kaplan v State of Victoria (No 8) [2023] FCA 1092 (Kaplan), Mortimor CJ opined that compensation is to be quantified by the Court (and hence, by analogy, tribunal), bearing in mind the observations of the High Court in I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd [2002] HCA 41:

The relationship between conduct of a person that is in contravention of the statute, and loss or damage suffered, expressed in the word "by", is one of legal responsibility. Such responsibility is vindicated by an award of damages. When a court assesses an amount of loss or damage for the purpose of making an order under s 82, it is not merely engaged in the factual, or historical, exercise of explaining, and calculating the financial consequences of, a sequence of events, of which the contravention forms part. It is attributing legal responsibility; blame. This is not done in a conceptual vacuum. It is done in order to give effect to a statute with a discernible purpose; and that purpose provides a guide as to the requirements of justice and equity in the case. Those requirements are not determined by a visceral response on the part of the judge assessing damages, but by the judge's concept of principle and of the statutory purpose.[53]

1. Further, in Gordon v State of Queensland & Ors [2013] QCAT 564, a case that considered work rostering to facilitate family responsibilities, QCAT drew on the case of Edwards v Hillier and Educang Ltd trading as Forest Lake College [2006] QATD 34, to observe that:

I have power to compensate, not punish.' Aggravated damages are in theory regarded as compensatory damages'; and 'it would be a rare case in which the Tribunal would award aggravated damages in circumstances where it compensated for feelings of hurt and humiliation.[54]

1. Similar observations were made by the Victorian Supreme Court in Spencer v Dowling[55] that the intention of the Equal Opportunity Act 1984 (WA) was to provide a sum of damages to compensate the complainant for loss.
2. Hence, if aggravated damages are to be awarded, there must be separately identifiable, compensable damage or loss relating to or arising from the manner in which the respondent conducted the proceedings.
3. In Kaplan, the award of aggravated damages was because of the respondent's subsequent conduct, including delay and the respondent's failure to participate in HREOC proceedings. In Whittle v Paulette,[56] the Queensland Anti-Discrimination Tribunal noted, when awarding aggravated damages, "that the first respondent was arrogant and aggressive in the witness box and insensitive to the effect of his treatment of the complainants". Meanwhile, in McIntyre v Tully [1999] QSC 121, Atkinson J of the Queensland Supreme Court affirmed the decision of the Anti-Discrimination Tribunal to award aggravated damages to a plaintiff who had suffered added distress because of the defendant's method of cross-examination.
4. That the proceedings are stressful for a plaintiff is not in itself sufficient to attract an award of aggravated damages. The defendant must conduct his or her case in a manner which is unjustifiable, improper or lacking in bona fides: Triggell v Pheeney.[57] Hence, in Greenhalgh v National Australia Bank Ltd (1997) EOC 92-884, the Human Rights and Equal Opportunities Commission observed that aggravated damages were not available in a situation where a case was actively defended, but not improperly so:

This is not a matter in which the respondent has refused to sit down and negotiate with the complainant. The respondent did make several offers of settlement to the complainant, some which included the payment of her costs to the date of the proposed settlement. Neither is this a matter where the complainant has been put to the expense and stress of having to establish the facts of her sexual harassment, nor the respondent's vicarious liability.[58]

1. The applicant argues that the respondent's conduct towards the applicant in contesting this matter was unjustifiable, and hence aggravated damages are appropriate.
2. Much of the conduct identified as unlawful in this decision occurred during the course of employment. In considering general damages, the Tribunal has considered the loss caused by the applicant during the course of her employment and has compensated her through general damages. While we did not accept the majority of the arguments made by the respondent in its defence, there is nothing to suggest that the respondent conducted itself inappropriately during the hearing. This is not a matter where cross examination was aggressive or inappropriate allegations were made in reply. The only real issue is whether the employer acted in an indefensible manner by suggesting that its standard of conduct towards the applicant, although "not gold standard", was still acceptable. We were somewhat surprised by this defence, but we do not find it was made without bona fides. We also do not have any evidence of any additional damage to the applicant, although we acknowledge her frustration.
3. If the Tribunal had been minded awarding aggravated damages, then the interests of public policy in supporting women in the workplace or the need to meet modern standards of gender equality, and the absence of the mitigating factors mentioned above, compensation in an award of aggravated damages would be somewhere between $6,000-$10,000. However, we are not satisfied that the applicant has suffered an additional loss or damage that would warrant a separate award of that kind. We consider the sum awarded for general damages is sufficient to cover the totality of the applicant's loss caused by humiliation and hurt feelings during her employment. The hearing, while doubtlessly frustrating, did not make that loss worse.

1. Having regard to the medical evidence before the Tribunal, we will issue an order requiring the respondent to meet the expense of treatment for the applicant's psychiatric condition for a period of 12 months upon the provisions of appropriate medical evidence, to a maximum of $10,000. The applicant may need to seek advice about whether this raises implication for repayment of medical expenses met by Commonwealth or other sources.

1. The Tribunal will issue an order requiring the respondent to review its policies and procedures for the purpose of producing within six months an effective procedure to allow access for breastfeeding employees to adequate facilities the purpose of expressing milk. The Tribunal recommends that the respondent engage with the ACT Human Rights Commission or other relevant ACT government agencies to assist in the production of an effective policy.
2. The Tribunal will issue an order requiring the respondent introduce training for its management at all levels in relation to the requirement to comply with antidiscrimination and industrial relations legislation which were not part of its consideration, despite its resources, in dealing with this applicant.
3. We understand that the respondent has agreed to apologise to the applicant. That being the case, it is not necessary or appropriate to make an order that it do so.

[1] Complainant 202258 v Southern Restaurants (VIC) Pty Ltd (Discrimination) [2023] ACAT 57

[2] Applicant's submissions on remedy dated 17 November 2023 at [13]

[3] Applicant's submissions on remedy dated 17 November 2023 at [18]; See Qantas Airways Ltd v Gama [2008] FCAFC 69; Complainant 201908 v Commissioner for Fair Trading (Discrimination) [2021] ACAT 2

[4] [2021] ACAT 2

[5] Applicant's submissions on remedy dated 17 November 2023 at [20]; See Gutierrez v Mur Shipping Australia Pty Ltd [2023] FCA 399 at [88] citing Qantas Airways Ltd v Gama [2008] FCAFC 69 at [99] and [69] (Kenny J with Besanko and Perram JJ agreeing)

[6] Applicant's submissions on remedy dated 17 November 2023 at [27]

[7] Applicant's submissions on remedy dated 17 November 2023 at [29]

[8] Gutierrez v MUR Shipping Australia Pty Ltd [2023] FCA 399 at [52]

[9] Applicant's submissions on remedy dated 17 November 2023 at [22]

[10] Complainant 201908 v Commissioner for Fair Trading [2021] ACAT 2 at [53]

[11] Applicant's submissions on remedy dated 17 November 2023, at [23]

[12] Wang v Australian Capital Territory [2016] ACAT 71

[13] Kovac v the Australian Croatian Club Limited (No 2) [2016] ACAT 4

[14] [2014] FCAFC 82

[15] [2015] FCCA 1827

[16] [2023] FCA 399

[17] [2013] VSCA 76

[18] Applicant's submissions on remedy dated 17 November 2023 at [35]

[19] [1988] 1 WLR 968

[20] [1989] FCA 72

[21] Cross v Hughes [2006] FMCA 976 at [30]

[22] Elliot v Nanda [2001] FCA 418 at [182] and [297]

[23] Applicant's submissions on remedy dated 17 November 2023 at [43]

[24] Applicant's submissions on remedy dated 17 November 2023 at [44]

[25] The respondent's submissions on remedy dated 8 March 2024 at [8]

[26] [2017] QCAT 8

[27] Witness statement of Britney Staines dated 30 November 2022, annexure S

[28] Kovac v Australian Croatian Club Limited (No 2) [2016] ACAT 4 at [37]

[29] [1989] FCA 65 at [60]

[30] [2008] FCAFC 69 at [94]

[31] [2017] QCAT 8

[32] [2015] VCAT 1992

[33] [2015] VCAT 1992 at[180]

[34] [2015] VCAT 1992 at [180]

[35] [2015] VCAT 1992 at [177]

[36] Taylor v August and Pemberton Pty Ltd [2023] FCA 1313 at [519]- [520]

[37] Yelda v Sydney Water Corporation; Yelda v Vitality Works Australia Pty Ltd [2021] NSWCATAD 177

[39] [2009] FCA 680

[40] [2009] FCA 680 at [350]

[41] [2009] FCA 680 at [353]

[42] [2004] FMCA 242

[43] [2003] FMCA 209

[44] [2002] FMCA 31

[45] [2003] FMCA 375

[46] [2014] SAEOT 6

[47] [2015] VCAT 693

[48] [2021] ACAT 2 at [68]

[49] Overturned on appeal, with the Tribunal acknowledging "issues about the basis" for calculating the Award.

[50] [2018] ACAT 45 at [212]

[51] Uren v John Fairfax & Sons [1966] HCA 40 page 149 per Windeyer J

[52] Taylor v August and Pemberton Pty Ltd [2023] FCA 1313 at [523]-[525]

[53] I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd [2002] HCA 41 at [26]

[54] Gordon v State of Queensland & Ors [2013] QCAT 564 at [102]

[55] [1996] VSC 51 at [144]

[56] (1994) EOC 92-621

[57] [1951] HCA 23

[58] Elliot v Nanda [2001] FCA 418; [2001] 111 FCR 240 at [181]