IN THE VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL

Ms Kathleen Coyne ("the Complainant"), lodged a complaint with the Equal Opportunity Commission ("EOC") on 14th August 1998 against Mr George Buttigieg, P & O Food Services Pty Limited ("Food Services"), P & O Australia Ltd and P & O Ports Limited (the Respondent). The complaint alleged sexual harassment by Mr Buttigieg, an employee of the Respondent and vicarious liability by the Respondent, Food Services and P & O Australia Ltd.

The complaint is that, whilst in the course of employment, the Complainant was subjected to sexual harassment in contravention of s86 and/or s87 and s102 of the Equal Opportunity Act 1995 ("the Act"). The incident and the basis of the complaint was described in the amended particulars as follows :

(i) On or about the 1st June, 1998, the Complainant was working in the office section of her workplace.

(ii) Whilst working, the Complainant felt a human presence and looked behind her. The First Respondent was standing before her with his genitals exposed.

(iii) The First Respondent clutched the Complainant's vagina for a second or two. He then released his hold and left. No words were exchanged between the Complainant and the First Respondent.

The EOC considered the complaint against Mr Buttigieg could not be conciliated successfully and on request it was referred to the Tribunal on 2 February 1999. The EOC declined the complaint against the Respondent and it too was referred to the Tribunal on 2 February 1999. The Complainant had withdrawn her complaint against Food Services and P & O Ports Limited on 1 October 1998.

The Complainant lodged a second complaint with the EOC on 18 December 1998 alleging victimisation by Food Services and the Respondent. The complaint against the Respondent was withdrawn by consent on 18th February 1999. The victimisation complaint against Food Services was accepted by the EOC in relation to allegations of discipline and unfavourable treatment but not in relation to transfer. Following unsuccessful conciliation of the claims accepted on 24th May 1999, the complainant requested the EOC to refer and transfer the complaint to the Tribunal. The Complainant and Food Services settled the victimisation complaint pursuant to an undated Deed of Settlement in November 1999.

Returning to the complaint of sexual harassment, a settlement with Mr Buttigieg was reached pursuant to a Deed of Release dated 15th October 1999. As will be seen, we have now made formal orders withdrawing the complaint against Mr Buttigieg the First Respondent.

The Tribunal heard evidence over four days and on the 18th November 1999, the hearing was adjourned for the parties to file written submissions. The final submission was received on 10th December 1999.

At the hearing the Tribunal gave leave for both parties to be represented. The Complainant was represented by Ms Bonney of counsel and the respondent by Mr Murdoch of counsel.

During the hearing, counsel for the Respondent sought disclosure to the Tribunal of the details of the Complainant's settlement of her claims against Mr Buttigieg and Food Services. Following oral submissions from both sides on that issue, the Tribunal ordered that the settlement details be tendered in confidence and subject to orders that they not be released to the public or to the media.

The Complainant was born in May 1942. She was divorced some 15 years ago and she has three sons and five grandchildren. She has worked in the food industry for approximately 30 years. In February 1995, she began working with Food Services as a part-time catering attendant in the canteen in the amenities block at West Swanson Dock at McKenzie Road, Footscray. Her shift was three hours a day in a five-day week. Employees of the Respondent used the canteen mainly for meals. It is a common workplace for employees of Food Services and the Respondent. Some two years ago, the Complainant started working as a canteen assistant with Channel 7 working a seven-hour day shift on weekdays.

In her statement filed, the Complainant set out details of the incident which occurred on 1 June 1998 at about 6.15pm and the events that followed. She gave evidence and was cross-examined. A number of other witnesses were called on her behalf and cross-examined. They included three who gave evidence about her psychological state. The Respondent called evidence from three people. Mr Beattie, who was the Manager at P&O Ports at the time, Ms Simpson and Mr Sammut. They were cross-examined. Neither party called Mr Buttigieg to give evidence.

Whilst we did not hear from Mr Buttigieg, the Respondent did not seek to contend that a serious incident of sexual assault had not taken place on 1st June 1998 and that the perpetrator was Mr Buttigieg. We accepted the Complainant's evidence about the broad details. Her evidence was supported by Ms Bovell, her manager, and Ms Simpson who was involved in the investigation of the matter for the Respondent. Mr Beattie's evidence about the outcome was also supportive of the fact that an incident of sexual assault had occurred.

We are satisfied that on 1 June 1998, Mr Buttigieg exposed himself to the Complainant in the canteen during work hours and whilst Mr Buttigieg was on his work shift.

We are further satisfied on all the evidence and submissions of the following. Food Services and the Respondent are divisions of P & O Australia Ltd. Mr Buttigieg was an employee of the Respondent. His job included working in the amenities/services area (including the canteen) collecting rubbish, clearing tables and cleaning the canteen. Food Services who employed the Complainant runs a canteen for P & 0 employees at McKenzie Road, Footscray ("the canteen"). The canteen is part of the amenities block at West Swanson Terminal, a container terminal operated by the Respondent and is a common workplace of the Complainant and Mr Buttigieg.

We are satisfied that the Complainant was traumatised by the incident and in a state of shock. She did not tell anyone about it on the day nor tell anyone at work about the incident. We accept that she had initially resolved to deal with the situation on her own. She was concerned about possible repercussions from the wharfies (other employees of the Respondent) if she raised the matter. She feared for her own welfare and safety. She also did not report it to the police then. Her explanation was that she wanted to "keep the lid on" as she was scared Mr Buttigieg would "go after" her. She was concerned Mr Buttigieg might be sacked and have his superannuation jeopardised if she raised it.

On or about 10th June 1998 the Complainant briefly told Ms Sheryl Hibbert, the canteen supervisor, that Mr Buttigieg had exposed himself to her. She gave more details of the incident to Ms Hibbert the next day.

On or about 15th June 1998, Ms Marjorie Bovell, the canteen manager, told the Complainant she had become aware of the incident through Ms Hibbert. As the Complainant had indicated unwillingness to complain to senior management about the incident, Ms Bovell arranged for a meeting with the Complainant and Mr Buttigieg. We accept that Mr Buttigieg told the Complainant at that meeting that he was sorry the incident had happened. Ms Bovell was at that meeting and it was her clear recollection that he apologised.

Matters came to a more public head on about 16th July 1998. Ms Bovell had found a "photograph" of a "gaping vagina" pinned on to the memo board at the canteen and decided to bring that and the Complainant's incident to management's attention. It turns out that the Complainant felt the picture related to her incident, although there was no evidence to support any connection. Ms Bovell approached Mr Ron Beattie, the Respondent's business manager, to express staff's concern about the photograph and the sexual assault. Immediate steps were taken to investigate the assault and Mr Beattie urged the Complainant to report the matter to police.

On 17th July 1998, the incident was investigated by Mr Rick Colasacco, operations superintendent, and Ms Jenny Simpson, a workcover co-ordinator of the Respondent. They concluded that the incident constituted sexual harassment. They recommended disciplinary action against Mr Buttigieg.

On 24th July 1998, the Complainant met with Mr Colasacco, Ms Simpson and Mr Beattie. Mr Beattie told her the conclusion of the investigators was that she had been sexually harassed. He asked what she believed would be appropriate disciplinary action. The Complainant indicated she did not want Mr Buttigieg to lose his job.

On 27th July 1998, Mr Beattie gave Mr Buttigieg a formal warning. This was to the effect that he would be dismissed from work if a similar incident occurred again. As part of the disciplinary action taken, Mr Buttigieg was required to undergo counselling about sexual harassment. During the counselling period, his normal work hours were restricted to the day shift. Although he was back at work from 27th July 1998, he was restricted to the day shift while he completed his counselling sessions. He did not return to his normal roster until counselling had been completed. His earning capacity was reduced while he was on the more limited shifts.

A meeting was held with Mr Buttigieg and the Complainant on 28th July 1998. It was attended by Mr Beattie, Mr Serge Sammut, Human Resources manager of the Respondent, Ms Simpson, Mr Collasacco and Mr Mat Purcell, a representative of the MUA. Mr Buttigieg was again told of the serious nature of his sexual harassment of the Complainant. As required by Mr Beattie, Mr Buttigieg apologised to her. The Complainant was asked if she was satisfied with the apology and she replied that she was.

Following the filing of a complaint with the EOC on 14th August 1998 for unlawful discrimination and sexual harassment, the Complainant understood from Ms Bovell some time in early September 1998 that there had been talk about boycotting the canteen. She thought this was because it was felt she could not take a joke and the men felt uncomfortable about her continuing to work there.

As matters transpired, work for the Complainant at the canteen did not thereafter go smoothly. In September, there was a suggestion made that she might transfer to work at another site operated by Food Services. In a letter dated 4th December 1998, the Complainant received a written warning about her job performance.

Some time on or about 11th December 1998, Mr Buttigieg was again working on the Complainant's shift. She had not expected this and it distressed her considerably. We understand that it had never been management's intention not to have him return to his former shifts and that this had been canvassed with the Complainant at the time of the investigation. The Complainant had not understood all this. She felt extremely upset that the Respondent could be so insensitive as to place Mr Buttigieg and her in exactly the same position that gave rise to the sexual harassment incident on 1st June 1998. She felt that, in so doing, the Respondent had shown a total disregard for her feelings or sense of safety.

On or about 21st December 1998, the Complainant took leave for two weeks. She resigned from her position at the canteen on 13th February 1999. In her resignation letter, she indicated it was "due to the intolerable circumstances" of her employment with the Respondent. Whilst she resigned from this position, she still maintained her position working as a canteen assistant with Channel 7 working a seven-hour day on weekdays.

In summary, we find that Mr Buttigieg exposed himself to the Complainant on 1st June 1998. Such conduct occurred during Mr Buttigieg's work hours and in the canteen area which is the common workplace of Mr Buttigieg and the Complainant. In the circumstances, Mr Buttigieg's conduct constituted sexual harassment as defined in s85(1) of the Act. As the Complainant and Mr Buttigieg have different employers, the conduct is contrary to the prohibition in s87(1) of the Act that a person must not sexually harass another person at a place that is a workplace of both of them.

In light of those findings several inter-related issues arise. First, and most critically important - is the Respondent vicariously liable under s102 for Mr Buttigieg's conduct? If so, then second, is the defence of reasonable precaution under s103 of the Act available to the Respondent? If that defence is not available then third, to what extent, if at all, should a settlement sum with another party be taken into account? Fourth, what compensation, if any, is payable? We will deal with each of these in sequence. Before doing so, we will outline the provisions of the Act relevant to the issues in this proceeding and the submissions of the respective parties.

The relevant prohibition of sexual harassment is in sections 85-87 of the Act. The definition of sexual harassment is in section 85 which provides:

(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;

(c) making any gesture, action or comment of a sexual nature in a person's presence.

Section 86 deals with harassment by employers and employees. It provides as follows:

(a) a person seeking employment with that employer;

(a) another person employed by his or her employer;

(c) a person seeking employment with his or her employer.

Section 87 deals with harassment in common workplaces and provides as follows:

(3) A person must not sexually harass another person at a place that is a workplace of both of them.

(4) For the purpose of this section it is irrelevant -

(a) whether each person is an employer; an employee or neither; and

(b) if they are employees, whether their employers are the same or different.

(5) In this section "workplace" means any place where a person attends for the purpose of carrying out any functions in relation to his or her employment, occupation, business, trade or profession and need not be a person's principal place of business or employment.

The relevant provisions in relation to the vicarious liability of employers and principals are in sections 102 and 103 of the Act.

If a person in the course of employment or while acting as an agent -

(a) contravenes a provision of Part 3, 5 or 6; or

(b) engages in any conduct that would, if engaged in by the person's employer or principal, contravene provision of Part 3,5 or 6 -

both the person and the employer or principal must be taken to have contravened the provision, and a complaint about the contravention may be lodged against either or both of them.

Exceptions to vicarious liability are in section 103. It provides as follows:

An employer or principal is not vicariously liable for a contravention of a provision of Part 3, 5 or 6 by an employee or agent if the employer or principal proves, on the balance of probabilities, that the employer or principal took reasonable precautions to prevent the employee or agent contravening the Act.

The relevant compensation provisions in s136 are as follows:

After hearing the evidence and representations that the parties to a complaint desire to adduce or make, the Tribunal may -

(a) find the complaint or any part of it proven and make any one or more of the following orders -

(i) an order that the respondent refrain from committing any further contravention of this Act in relation to the complaint;

(ii) an order that the respondent pay to the complainant within a specified period an amount the Tribunal thinks fit to compensate the complainant for loss, damage or injury suffered in consequence of the contravention;

(iii) an order that the respondent do anything specified in the order with a view to redressing any loss, damage or injury suffered by the complainant as a result of the contravention; or

(b) find the complaint or any part of it proven but decline to take any further action in the matter; or

(c) find the complaint or any part of it not proven and make an order that the complaint or part be dismissed.

At the end of the hearing, counsel for both parties were invited to make written submissions. The following are summaries of the submissions made.

The case for the Complainant is that she had been sexually harassed by Mr Buttigieg, an employee of the Respondent, at a place that is the common workplace of both the Complainant and Mr Buttigieg. It was also contended this occurred within Mr Buttigieg's course of employment with the Respondent and that the Respondent was accordingly liable under s102 of the Act. Counsel for the Complainant conceded that there was no complaint against the Respondent for discrimination in employment or for victimisation. Further, the Complainant had not alleged direct sexual harassment by the Respondent.

It was also submitted the Respondent failed to take reasonable precautions to prevent the sexual harassment and thus could not avail itself of the s103 defence. Further, it was argued the Deed of Release did not release the Respondent from liability as the Respondent was not a beneficiary or a party to that Deed and, besides, s102 rendered it directly liable for the employee's sexual harassment. In the alternative, it was argued that the Deed should be construed not a Deed of Release but as a mere agreement not to sue or proceed against the other parties to that Deed. Thompson v ACT Television Pty Ltd & Ors [1996] HCA 38; (1996) 186 CLR 574 at 582-584 was cited for this proposition.

As for the damages claim, it was contended that, prior to the incident, the Complainant was a happy outgoing person, who after the incident, became jittery and was inclined to cry readily and was withdrawn. She suffered post-traumatic stress disorders inclusive of a phobic anxiety state and reactive depression. It was also argued she resigned her job with the Respondent because of her "experiences" and she suffered consequential loss of income in circumstances where alternative future employment was limited because of her age and limited experience as a canteen worker. It was submitted she should be entitled to aggravated damages for the hostile work environment experienced by her after the sexual harassment incident. The total damages sum claimed is $109,742.32.

Counsel for the Respondent conceded five things. These were that, that Mr Buttigieg was its employee at all material times; that the incident of 1st June 1998 did occur as alleged; that it in effect constituted sexual harassment by Mr Buttigieg contrary to s86 or alternatively s87 of the _Equal Opportunity Ac_t; that the Complainant was an employee of Food Services and that it ran the canteen which constituted a common workplace within the meaning in section 87 of the Act.

The submissions for the Respondent may be put simply. First, it is not vicariously liable to the Complainant because the conduct of Mr Buttigieg did not occur "in the course of" his employment within that expression in s102 of the Act. It was submitted that what Buttigieg did to the Complainant was plainly tortious but the wording of s102 of the Act, read ordinarily, does not cover a plainly tortious conduct of its employees. Second, even if the conduct of Mr Buttigieg was in the course of his employment and the Respondent was consequently vicariously liable, no award of compensation ought to be made pursuant to s136(a)(ii) of the Act as the Complainant had been sufficiently compensated by Mr Buttigieg's payment to her in settlement of her claim.

It was argued by Counsel for the Respondent that the term "in the course of" employment is the same as the well-known phrase in statutory worker's compensation schemes and as used in the common law relating to the vicarious liability of employers for tortious acts of employees. He submitted that the words "vicarious liability" in the heading in Division 4 of Part 6 of the Act indicate common law considerations apply in the construction of that expression in s102. The submission was that Parliament must have intended that phrase be given the ordinary common law meaning as otherwise Parliament would have used some other formulation of words to express its intention. Accordingly, it was submitted that when Mr Buttigieg exposed himself to the Complainant and grabbed her vagina momentarily he was not acting in the course of his employment with the Respondent. Instead, he was said to be engaging in conduct of a criminal nature, viz a sexual assault. It was further contended his conduct went beyond merely being an improper mode or means of carrying out an authorised task and that, as such, it was in no way related or incidental to anything required of him by the Respondent.

As regards the compensation claim, it was submitted to the effect that the Tribunal should guard against allowing double compensation being awarded to the Complainant. To that end, he referred to the Complainant having already received sums in settlement of claims against Mr Buttigieg and Food Services. He submitted the approach for the Tribunal in the complaint against his client was to first determine the sum it considers as fair compensation for the sexual harassment incident and then deduct the Buttigieg settlement amount. It was also submitted that in determining the compensation sum payable by the Respondent, the Tribunal should determine how much of the Complainant's condition as evolved since the sexual harassment incident had been caused by other factors.

As to considerations relevant to the amount of compensation to be assessed, it was pointed out that Food Services had paid for the psychological counselling by Mr Jepson and that after 8 sessions with him, Mr Jepson thought further sessions were not necessary. In December 1998 when there was a recurrence of symptoms suffered by the Complainant, there were three further consultations with him. Counsel pointed out the evidence of Mr Jepson was to the effect that the symptoms had dissipated to the extent that no further treatment was thought required. To that extent, it was submitted that the Tribunal ought not to accept the Complainant's version to the effect that she was unable to continue with counselling because of lack of support.

It was also pointed out the evidence given by Ms Barnes showed the symptoms of post traumatic stress disorder suffered by the Complainant had been more probably exacerbated by the employment conditions endured by her after the incident of 1st June 1998 including events leading to her subsequent resignation. It was in effect submitted these were "victimisation matters" not forming part of the complaint but constituting "supervening events" casually unrelated to the sexual harassment incident. As to the alleged continuation of psychological consequences of the incident, it was argued that the Complainant had, at most, "a vulnerability to further trauma". The counselling for a further six months recommended by Ms Barnes was argued to be more to do with the trauma associated with the Tribunal hearing than the effect of the incident of 1st June 1998. It was in effect conceded that the Respondent would at most be responsible for 50% of the Complainant's post-incident psychological problems. It was argued that, as such, the general damages awardable to the Complainant should be considerably less than the settlement sum already received and that given she had received that amount by way of settlement with Mr Buttigieg, she had been more than fully compensated for her injury.

Counsel contended that aggravated damages were not available to a complaint under the Act as the Respondent was not a wrongdoer and, if held liable, its liability was only by dint of a deeming provision of the Act. It was argued that, even if aggravated damages were claimable, the hostile work environment relied upon by the Complainant was not directed at her and that, in any event, there was no reliable evidence the threatened boycott referred to occurred. It was also put to the effect that there was no good reason why Mr Buttigieg should not be allowed to resume his normal work shift.

As regards the claim for lost wages, it was submitted no evidence had been given in support of that head of claim. The Complainant's termination of employment with Food Services was said to have been her own decision to resign because of her difficulties with her employment and not because she was physically or mentally incapable of continuing her job. It was further submitted that, in any event, she had not looked for alternative employment and account should also be taken of the settlement sum she had already agreed to accept from Food Services.

As to the claim for medication, it was submitted the Complainant's claim for $3,600 was not supported by evidence. The claim for future treatment for the Complainant was objected to on three grounds. First, there was insufficient evidence of it being causally related to the incident of 1st June 1998. Second, it would require the Tribunal to engage in impermissible speculation as to the cost of such treatment. Third, there was no reason to think the Complainant would not continue to receive free treatment at the expense of the Victim Assistance Program run by the Moreland Community Health Service.

The main contentions of counsel for both parties centre on whether the Respondent by its employee, Mr Buttigieg, is vicariously liable for the sexual harassment of the Complainant. At first blush, it is difficult to see in what circumstances an employer could be liable for an employee's commission of a criminal act of sexual assault such as occurred in this case. However, the Act makes specific provision for what is referred to in the heading to s.102 as "Vicarious liability". Whether an employer is liable, and here whether the Respondent is liable for what Mr Buttigieg did, largely depends on how the phrase "in the course of employment" in s102 of the Act is to be construed.

Counsel for the Respondent submitted that the Act, and more specifically, s 102, has not excluded Common Law notions relating to vicarious liability. This was said to be seen in several ways. He pointed to the absence of a definition of the phrase in the Act and an absence of any reference to it in the Second Reading Speech by the then Attorney General on 4th May 1995. He also pointed to the use of the phrase "vicarious liability" in the marginal heading and in the use of the phrase "in the course of employment" rather than the phrase "during employment". It was accordingly submitted that the phrase must be read as applied in the context of legislative compensation schemes and generally according to the common law notion of vicarious liability in torts.

The effect of counsel's submission of the common law position may be put in the form of the following statements. Before an employee's conduct may be said to have been "in the course of employment", the injury caused must have occurred whilst the employee is "doing something which is part of his service to his employer or master or incidental to the employment": South Maitland Railways Pty Ltd v James [1943] HCA 5; (1943) 67 CLR 496 at 502 (per Starke J). Alternatively, the employee's conduct may also be within "the course of employment" if expressly or impliedly authorised by the employer. An application of this principle may be seen in Deatons Pty Ltd v Flew [1949] HCA 60; (1949) 79 CLR 370. There the act of a barmaid throwing a glass of beer and its contents at a public house patron was held not to constitute conduct in the course of her employment as a barmaid. It was not regarded as done in furtherance of the employer's interests or as an incident of anything the barmaid was employed to do. It was also held the act was not done under his express or implied authority.

On this basis, it was submitted that Mr Buttigieg's conduct in exposing himself and grabbing the Complainant's vagina was not merely an improper mode or means of carrying out his authorised tasks but it was also a criminal sexual assault. As such, it was contended Mr Buttigieg's conduct did not occur in the course of his employment. It was said to be in no way related or incidental to, or consequent upon, anything required of him in his role as an employee in the canteen area where his job was to collect rubbish, clear tables and clean the canteen.

The substance of the submissions by counsel for the Complainant was that the phrase "in the course of employment" should be given a wide interpretation as that would give effect to the intention of the legislature. It was submitted that the Tribunal and similar bodies had in the past taken this approach in construing and applying other provisions in similar legislation. It was pointed out that, in particular, vicarious liability had been regarded as established as long as the employee had performed an act in circumstances reasonably incidental to the employment. The following cases were referred to as examples - Hopper v Mt Isa Mines Ltd (1997) EOC 92-879; Tran v Swinburne University & Ors, 18 October 1999, unreported, unreported_, McKenna v State of Victoria & Ors_, No 17 of 1997 & No 180 of 1997; unreported; Gray v State of Victoria & Anor (1999) EOC 92-996; Greenhalgh v National Australia Bank (1997) EOC 92-884.

In our view, the analogous common law concept of what constitutes "in the course of employment" should not be applied to s102 of the Act. These provisions of the Act must be construed in the context of what the Act sets out to do. Several considerations suggest why this approach is to be preferred.

First, we accept the submission by counsel for the Complainant to the effect that the common law concept may not provide sufficient guidance to promote the objectives of the Act. To that extent, the common law concept may be inappropriate and is better avoided: see Chief Constable of Lincolnshire Police v Stubbs (1999) IRLR 81; Jones v Tower Boot Company Ltd [1997] IRLR 168. In this regard, we note this is particularly so where the Act clearly evinces an intention to travel into new fields beyond the common law. This was probably a major consideration why the High Court in Elna Australia Pty Ltd v International Computers (Australia) Pty Ltd [1987] FCA 230; (1987) 75 ALR 271 at 280 (Gummow J) declined to apply common law parallels in its consideration of causative issues arising from s82 of the Trade Practices Act 1974 (Cwth).

Second, the Act is an example of beneficial and remedial legislation that should be given a "fair, large and liberal" interpretation: IW v City of Perth [1997] HCA 30; (1996) 191 CLR 1 at 12 (Brennan CJ and McHugh J); 39 (Gummow J). To that extent, the phrase "in the course of employment" should as far as possible be given a construction that would eliminate discrimination in the form of sexual harassment. If ambiguous, the phrase should be given a construction and application which promote its objects in preference to a construction that would not: IW v City of Perth, above, at 15 (Brennan CJ and McHugh J); 27 (Toohey J). This is a requirement of s35 of the Interpretation of Legislation Act 1984.

Third, the conceptual issue is more appropriately approached in terms of the intention of the legislature underlying the Act. For this purpose, we note the Act is an example of legislation protecting human rights and dignity. More specifically, section 3 shows one of the objectives of the Act is "to eliminate, as far as possible, sexual harassment" and "to provide redress for people who have been ... sexually harassed". In this regard, we note Dawson and Gaudron JJ in IW v City of Perth stressed there is special responsibility to take account of and give effect to the purpose of legislation designed to protect basic human rights and dignity: [1997] HCA 30; (1996-97) 191 CLR 1 at 22; see also, Kirby J at 58.

Fourth, a central basis of submissions by counsel for the Respondent is that Parliament intended the common law concept to apply. It was submitted that Parliament would have used some other formulation of words in s102 of the Act if it intended the phrase to be read differently. It is true that the draftsperson of the Act could have chosen to use specific words or phrases to express a particular intention. However, Parliament's omission to do so does not necessarily mean it intended words or phrases to be given their common law meaning: see Thompson v Australian Capital Television Pty Ltd [1996] HCA 38; (1996) 186 CLR 574 at p 584 (Brennan CJ, Dawson and Toohey JJ). Likewise, Parliament's omission to use some other form of words in s102 of the Act does not necessarily mean that construction of the phrase "in the course of employment" must necessarily come from the common law.

Fifth, s102 must be construed as applying to render an employer vicariously liable even though the employer had not expressly authorised the conduct constituting sexual harassment as were it otherwise s103 would have no operation. This approach may be seen in the analysis by Kaye J in State Electricity Commission of Victoria v Equal Opportunity Board & Ors [1989] VicRp 46; [1989] VR 480 (His Honour was there dealing with the predecessor provisions of what is now ss102-103 of the Act).

Accordingly, we are inclined to the view that determination of the issue under consideration may be better assisted by the more recent application of the phrase "in the course of employment" in workers' compensation cases. Beneficial legislation providing the infra-structure for such cases provide more appropriate analogies to be drawn with underlying policies of the Equal Opportunity Act 1995. Judicial construction of the phrase in workers' compensation cases would also arguably be more appropriate than the term as applied at common law.

A central issue in workers' compensation cases is whether an injury occurring during work interval had been sustained in the course of the worker's employment. Thus the courts had to grapple with what constitutes "in the course of employment" in the context of the relevant statutory provisions which define injury to mean "personal injury arising ... in the course of employment".

However, application by the courts of the underlying legislative policies in such legislation was a gradual process. This may be seen in the way they applied and developed this concept to what it is today. At first the courts applied the old common law concept of the phrase in earlier workers' compensation cases. Thus an injury could be said to be within the course of an employee's employment if the employee was "doing something which is part of or is incidental to his service": Whittingham v Commissioner of Railways (WA) [1931] HCA 49; (1931) 46 CLR 22 at 29 (per Dixon J). An often-applied test was whether the workman was doing something he was "reasonably required, expected or authorized to do in order to carry out his actual duties": Henderson v Commissioner of Railways (WA) [1937] HCA 67; (1937) 58 CLR 281 at 294 (per Dixon J). The same test was applied in Humphrey Earl Ltd v Speechley [1951] HCA 75; (1951) 84 CLR 126 at 133, although the word "actual" was left out of the formulation.

In relatively recent times, however, the courts have taken the view that the term "course of employment" should be applied "liberally and practically": Danvers v Commissioner for Railways (NSW) [1969] HCA 64; (1969) 122 CLR 529 at 536 (Barwick CJ). This reflected a shift to a more liberal approach. The turning point may be seen in Commonwealth v Oliver [1962] HCA 38; (1962) 107 CLR 353 where the High Court applied the test flexibly. There an employee sustained injury while playing cricket at lunch-time on a concrete apron fronting a hanger where he worked. The Court took the view that the injury had occurred within the course of his employment. Menzies J said the case should not be determined against the background of Whittingham v Commissioner of Railways (WA), above, a case decided some 30 years previously. His Honour said it should instead be decided:

... against a background of a widely-accepted and sensible present-day practice of employers encouraging workers to spend intervals between working hours, which must often be spent upon the employers' premises, in recreational activities.

In the same case and also reflecting the same attitude, Dixon J said,

the circumstances of the employment make it clear that the employees were not expected to leave the premises for lunch, that the custom of playing for a time during the thirty minutes allowed for lunch was a recognised practice.

His Honour accordingly thought the proper inference was that the course of employment extended to cover the cricket playing activities over that lunch period.

In Hatzimanolis v ANI Corporation Ltd [1992] HCA 21; (1992) 173 CLR 473 at 479, the High Court made statements which may be seen as snap-shot observations about the development of this aspect of the case law. First, the test had been applied flexibly to draw the demarcation line between work-related injuries and those too remote from the worker's employment as to call for compensation from the employer. Second, since Oliver, appellate courts have upheld many compensation awards in favour of workers in cases where injury had occurred away from the work place. This was even though it was outside of or between working hours, and "while the worker was engaged in an activity ordinarily performed for private necessity, convenience or enjoyment": (1992) 173 CLR at 480. The same approach may be seen in Mason v Social Welfare Department [1974] VicRp 62; [1974] VR 506 and in Park v Peach [1967] VicRp 60; [1967] VR 558. In the latter case, the Full Court of the Supreme Court of Victoria held a taxi driver had been injured in the course of his employment when he was struck by a vehicle while crossing a road after leaving the taxi to buy himself a newspaper. Third, the modern cases where workers were held to have sustained injury in the course of their employment could be reconciled with the application of Dixon J's test in Henderson only by the use of a strained interpretation of the key words in his Honour's test, viz, "in order to carry out his duties". Fourth, in many cases, the finding that a worker was doing something "in order to carry out his duties" at the time he sustained injury was regarded as "simply fictitious": (1992) 173 CLR at 482.

In effect, the Court recognised the old test by Dixon J had gone past its "use-by" date. Accordingly, it reformulated a proposition to replace it. This was to the effect that an injury might be said to have arisen "out of or in the course of employment" if sustained in an interval or interlude and occurring within an overall period or episode of work. That would be so if the employer had, expressly or impliedly, induced or encouraged the employee to spend that interval or interlude at a particular place or in a particular way. In so formulating these prepositions, however, the Court made it clear that it was only for purposes of workers' compensation law. Further, they were clearly only to be used in the context of situations where an injury occurred during an interval between work sessions.

In our view, even at this infancy stage of its jurisprudence, a restricted approach to the phrase "in the course of employment" ought not to be adopted in sexual harassment situations as regulated by the Act. That could tend to defeat the objectives of the Act. It may be that workers compensation law could have been a much more ordered development if, from its beginning, judicial construction of such phrase had more reflected the observations of Gummow J in Elna Australia (1987) 75 ALR at 280. More to the point, it is not unlikely that the prohibition of sexual harassment in the workplace may be at serious risk of being frustrated if a narrow approach were adopted. That could be so, for instance, if the words "in the course of employment" were taken to cover only conduct that related to anything required of the employee by his employer. One effect of that could be that employers may not be held vicariously responsible for a wide variety of conduct constituting sexual harassment in the workplace. This is particularly in so far as, strictly speaking, sexual harassment of a fellow employee cannot be said to be incidental to the purposes for which the discriminator-employee is engaged by the employer. Such a result cannot have been intended by the legislature when enacting the Act.

In this regard, we note that in the case cited to us by counsel for the Complainant, Horne & Anor v Press Clough Joint Venture & Anor (1994) EOC 92-591, the Equal Opportunity Tribunal of Western Australia took a wider view of the concept of vicarious liability in the context of similar legislation. The case concerned the liability of agents for a union found to have displayed sexually explicit material in the union office. The Tribunal held the union had aided and abetted the acts of unlawful discrimination alleged by the complainant. As to the union was vicariously liable, the Tribunal observed as follows [at p 77,178]:

It cannot be said that an agent who commits an act of unlawful discrimination must for that reason be acting outside the scope of his or her authority as an agent and so not in connection with his or her duties as an agent. That conclusion would make a nonsense of that section - no principal would ever be vicariously liable for the unlawfully discriminatory acts of an agent.

The words "in connection with" mean no more than that the relevant acts were done during the course of the person's employment or whilst he or she was ostensibly performing duties of an agent.

We do not necessarily share the view that no principal would ever be vicariously liable if commission of an act of discrimination were to be per se regarded as outside the scope of a worker's employment. However, as indicated above, such approach could come very close to excluding many employers from vicarious liability for a wide range of conduct constituting sexual harassment. This would tend to confine the operation of the Act which, as declared in s3, aims to "extend the law relating to equal opportunity and discrimination".

In this regard, we note an aspect of the decision of the Supreme Court of Victoria in Box Hill College of Technical and Further Education & Another v Fares (1992) EOC 92-464 which is of some relevance here. The Court (Smith J) was hearing an appeal from the decision of the then Equal Opportunity Board. The Board found the general manager of the State Training Board, the College and the Council of the College had discriminated against the complainant in her employment, the discrimination being on the ground of sex and ethnicity.

One of the issues raised related to the relationship between s21 of the Equal Opportunity Act 1984 (the predecessor to s13 of the present Act and which prohibits an employer from discriminating against job applicants) and s34 (the predecessor to s102 of the present Act). It was argued by the appellant that, given the wording of s21, only an employer could contravene that section of the 1984 Act and, correspondingly, an employee could not be liable under that same section. It was thus argued an employer would not be vicariously liable under s34 where an employee had by conduct discriminated against other employees in the way described in s21. In response, the complainant argued such interpretation meant that there would be very little room for the operation of s21 of the 1984 Act and that this would be so if s21 were confined in its operation to situations where the employer was the person in the position to discriminate in relation to employment.

On this issue, Smith J held that s34 came into operation whenever acts of an employee or agent would have contravened the 1984 Act if committed by the employer or principal. He took this approach as it would promote the objects and purposes of the 1984 Act. His Honour was thus giving effect to s35 of the Interpretation of Legislation Act 1984. His Honour gave the following policy reasons why the broad approach was taken as the preferred construction of s34 of the 1984 Act:

If s.34 of the Act is not available to make the employer vicariously liable and the employee liable, then s.21 of the Act would be confined in its operation to situations where the employer is the person in the position to discriminate in relation to the employment - for example, a sole trader who employs a number of people. Section 21 would have little or no operation in the public sector (although the Act (s.5) expressly binds the Crown) or in the private sector in relation to large corporations. In essence, the interpretation argued for by the appellants would have the effect of relieving employers of any liability for discrimination against staff in their employment where an employee had the responsibility to make the employment decisions. Further, that employee would not be liable for any discrimination against other employees on grounds of race, sex, religion or politics because, on the interpretation of the appellant, such an employee would not be in breach of s.21 of the Act. Such an interpretation would severely limit the operation of legislation and deprive it of any significant impact in the community.

The alternative interpretation, argued for by Ms Fares, however, will enable the Board to enforce s.21 against all employers and employees and compel both to address discriminatory behaviour in the work place. It is, accordingly, the interpretation to be preferred.

Having regard to the legislative intent and for the considerations canvassed above, in our view a liberal interpretation should be given to the phrase "in the course of employment" in s102 of the Act. We propose to approach it on that basis in determining what conduct could be regarded as "in the course of employment". For this purpose, we are guided by several working propositions from the law of workers' compensation. These may be stated as follows:

First, the course of employment ordinarily commences when the employee starts work in accordance with his or her ordinary or overtime hours of work and as ending when his or her ordinary or overtime hours of work are completed.

Second, whether the relevant conduct of an employee is "in the course of employment" is not confined to the time frame within the employee's work shift.

Third, the employee's conduct is not necessarily identical with the actual work which that person is employed to perform.

Fourth, the relevant conduct includes "the natural incidents connected with the class of work" the employee is required to do.

Fifth, account should be taken of the general nature and circumstances of the employment: Danvers v Commissioner for Railways (NSW) [1969] HCA 64; (1969) 122 CLR 529 at 537 (Barwick CJ).

The first four of these propositions may be seen in Hatzimanolis v ANI Corporation Ltd [1992] HCA 21; (1992) 173 CLR 473 at 478 and 483. When applied in the context of sexual harassment, the third and fourth propositions in effect allow account to be taken of the circumstances of the particular occasion upon which the sexual harassment arose. These propositions may have been summed up in an observation by Dixon J in Whittingham [1931] HCA 49; (1931) 46 CLR 22 at 29. His Honour there said the nexus between a worker's employment and what he was doing at the time the injury occurred is only a matter of degree in which time, place, practice and circumstances have to be considered. That in the end it is a matter of degree enables underlying policies of the Act to impact on the construction exercise. In that regard, account may be taken of the following observations by Gummow J in Elna Australia Pty Ltd v International Computers (Australia) Pty Ltd [1987] FCA 230; (1987) 75 ALR 271 at 279:

In logic, the cause of any state of being may be not less than "the sum of the entire conditions", but the courts, both in expounding the common law and in construing statutes which present issues of causation, have selected some one or more out of what is an infinite number of conditions to be treated as the cause: Thom v Sinclair per Lord Haldane supra; National Insurance Co of New Zealand Ltd v Espagne [1961] HCA 15; (1961) 105 CLR 569 at 591-6. Per Windeyer J. And, as those learned judges also explained, the cause or causes so selected vary with the purpose at hand. In making that selection the law is moved by considerations of policy, not simply of logic (Alexander v Cambridge Credit Corporation Ltd, New South Wales Court of Appeal, 25 June 1987, unreported, p 27, per McHugh JA.

His Honour made these observations with regards to s82(1) of the Trade Practices Act 1974 (Cwth) and one issue was whether common law concepts could appropriately apply in construing that section. They are helpful to the present context. This is because, in a determination of what conduct is to fall within the phrase "in the course of employment" in s102 of the Act, it is not pure logic but legislative policies which should be the guiding factor. It is such policies which can best ultimately point to where the line should to be drawn in the sand.

When Mr Buttigieg sexually harassed the Complainant, he was an employee of the Respondent. He was on duty as such in the canteen, a common workplace with the Complainant. He had, in the circumstances, used his position as a canteen cleaner to get so physically close to the Complainant as to sexually harass her by exposing himself and touching her. We are satisfied that he was acting in the course of employment when he did that. This was even though his actual acts constituting sexual harassment could certainly not be said to have been authorised by the Respondent nor conceivably ever be part of his duties. In circumstances where the employee has contravened a provision of the Act, s102 provides that the employer must be taken to have contravened the provision. We are satisfied that the Respondent has contravened the Act.

It is noted Counsel for the Respondent in effect conceded a male employee/supervisor may be acting in the course of his employment if he stands uncomfortably close to and places an unwelcome hand on the shoulder of a female employee whilst giving instructions to her. In our view, Mr Buttigieg's conduct no less occurs in the course of his employment even though his actual manner of sexual harassment was far more blatant. Nor does it matter that the precise manner in which he sexually harassed her also amounted to a criminal sexual assault. That the Respondent was not aware of his conduct does not affect its vicarious liability. Nor does it matter that it had not approved of such conduct: Boyle v Ishan Ozden & Ors (1986) EOC 92-165.

7 Taking Reasonable Precautions - Defence to Vicarious Liability

Under s103 of the Act, the Respondent is not vicariously liable for Mr Buttigieg's sexual harassment if it had taken reasonable precautions to prevent contravention of the Act. It has the onus of proving that defence.

What has to be proven is that it had taken appropriate steps to prevent the occurrence of conduct that could constitute sexual harassment. The specific requirement of s103 is that the employer must have taken reasonable precautions to prevent "the employee" contravening the Act; prevent Mr Buttigieg from sexually harassing the Complainant. It is not enough that it had taken steps to prevent sexual harassment by its employees generally. The Respondent must at least show it included Mr Buttigieg in its steps to prevent such matters. Such steps might include a sexual harassment awareness policy within its workplace. Ultimately the focus of attention is on whether its efforts had reached out to Mr Buttigieg in particular. Further, the preventive steps must have been taken before the occurrence of the event constituting sexual harassment; it is not enough that steps were taken to deal with the situation after it had occurred.

It is well settled in this jurisdiction that to avail itself of the s103 defence, a respondent will be able to show that it carried out a package of affirmative action to ensure that steps and strategies have been put in place aimed at preventing sexual harassment. The preventive measures to be taken would ordinarily include the implementation of adequate educational programmes on sexual harassment issues and monitoring of the workplace to ensure compliance with its sexual harassment policies: Gray v State of Victoria, (1999), EOC 92-996; McKenna v State of Victoria, ADT, 1998, No 17 of 1997; No 180 of 1997. Educational programmes might include the dissemination of literature and the provision of seminars. There might be re-education programmes to ensure that employees received disseminated materials and understood sexual harassment policies.

An essential component is that the Respondent must have taken appropriate steps to communicate its sexual harassment policies to all employees, the objective being that they become aware of what may constitute sexual harassment and that it is unlawful. The importance of this appears in McKenna's case, above. The respondent, the Victorian Police Force, had distributed a one-page folder on sexual harassment materials to senior officers. It also made the subject a pre-requisite for promotion within the Force. However, none of the key-players in that case received any such training. The materials distributed had been aimed principally at managers, supervisors and contact officers of the Force. A copy had been kept at the office of the Officer in Charge of each station. The Anti-Discrimination Tribunal, as it then was, held that the respondent had not in the circumstances satisfied this burden of proof.

Has the Respondent in this proceeding satisfied that burden? Mr Ron Beattie and Mr Serge Sammut gave evidence of the Respondent's sexual harassment policy and training. It may be summed up as follows. Its policies and procedure forming part of its training of new staff include a component reflecting its "sexual harassment policy". These are in its Manual of Human Resources Policy and Procedures. The policy clearly states that sexual harassment is an unacceptable and unlawful form of behaviour and will not be tolerated. The Manual indicates that management is responsible for taking reasonable steps to prevent sexual harassment. This includes communicating its policy to all employees and consultants to ensure they are aware of what constitutes sexual harassment. It tells them what avenues are available to resolve complaints. It conducts training and awareness sessions and generally take steps to ensure the workplace is free from unwelcome, intimidating or offensive behaviour. The policy had also been put into intra-net format for office staff. A copy of the Manual was also at the office within the canteen area. However, non-office employees such as Mr Buttigieg, would have no access to computers in the offices of the Respondent. Further, very few of its non-office employees had accessed the Manual at the office.

The policy was embodied as part of an induction-training course for new employees which began in 1996. Up to the incident of 1st June 1998, about 220 employees (49%) of the Respondent had gone through its induction programme. However, there was no evidence it had done anything about making its sexual harassment policy known to employees who joined its organisation before 1996. It is noted that Mr Buttigieg was within this group.

It was claimed by the Respondent that all its employees (and that would include Mr Buttigieg), were posted a copy of an employee information booklet setting out its sexual harassment policy. However, we note none of the employees of the Respondent who gave evidence at the hearing had received any such publication. In any event, the booklet was only in English. This was even though it seems clear that a great number of the Respondent's-employees have different ethnic backgrounds and it may well be many do not have a good grasp of written English. We do not know the level of Mr Buttigieg's grasp of English and there is no evidence he received the booklet. Further, although a complaints procedure was set out in the employee information handbook, nothing in the booklet indicates the disciplinary action that could be taken against any one who sexually harassed another employee. No evidence was given of any complaints procedure (if any) that had been put in place within the Respondent's organisational structure.

The Complainant herself and some of the witnesses called for her, gave evidence of several incidents at the canteen. Their evidence, which we accepted, suggests that not infrequently degrading posters were displayed. Although removed quickly by management or by workers before management saw them, that behaviour in our view suggests the lack of any effective policy or training. In all those circumstances, we are not satisfied that the Respondent had in place policies and procedures or had taken any appropriate steps that amounted to reasonable precautions such as to prevent the occurrence of the sexual harassment.

Accordingly, we find the Respondent vicariously liable for the sexual harassment of the Complainant by its employee Mr Buttigieg on 1st June 1998, and that the defence of reasonable precaution under s103 of the Act has not been sufficiently established by the Respondent.

The Complainant's compensation claim is put under several heads of claim. They are for medical expenses, loss of income, aggravated damages and general damages. Before dealing with each of the heads of claims separately, some reference needs be made to a Deed of Release.

At the commencement of the hearing, counsel for the Respondent submitted that the Tribunal should require the Complainant to tender settlement deeds that had been reached with the Complainant. One was with Mr Buttigieg in this matter; the other with Food Services in relation to her victimisation complaint. The thrust of the submission by counsel for the Respondent was that settlement with Mr Buttigieg meant she had been fully compensated for the wrong done to her and, to that extent, further claims against the Respondent would be tantamount to double-dipping.

On the other hand, counsel for the Complainant submitted that the Respondent may not avoid liability by relying upon that Deed of Settlement. The arguments may be summed up as follows. Firstly, the Deed had no provision for the benefit of the Respondent. Second, Food Services was not in any way acting for or authorised by the Respondent to settle the proceeding. Third, the Respondent's liability under section 102 of the Act was not jointly with Mr Buttigieg and/or Food Services but a separate cause of action for the Complainant. Fourth, in any event, the Deed was only an agreement by the Complainant not to proceed with the complaint against Mr Buttigieg and Food Services; it was not a release of the Respondent's liability to the Complainant.

Having considered the submissions, we ruled that they be tendered. That was for purposes of our determining quantum in the event that the Respondent be held liable. In so ruling, we were guided by two main considerations.

First, a general principle of damages is that damages should be reduced by any compensation already received in respect of the same loss or damage. In our view, it should be applicable to these proceedings in respect of the assessment of compensation payable under the Act. If the settlement sum received by the Complainant were not taken into consideration an anomaly could arise - the Complainant could indeed be awarded much more than what she might be regarded as being entitled to as compensation for the wrong done to her: Carlo Capodicasa v Herald and Weekly Times Ltd & Ors, VCAT, Anti-Discrimination List, 11 September 1998. It could even result in the Respondent being compelled to pay compensation twice and such payment may not be properly regarded as compensation for the loss suffered by the Complainant.

Second, the compromise payment by Mr Buttigieg was in respect of the same circumstances and thus the same cause of action under the Act for which the Respondent is now being held liable.

Counsel for the Respondent submitted to the effect that payment received by the Complainant from this settlement discharged it from further liability to pay compensation to the Complainant. He specifically made clear it was not a submission to the effect that the Deed operated to release it from liability. This was presumably in recognition of the common law rule to the effect that a course of action against joint tortfeasors is one and indivisible had effectively been abolished by the provisions of Part IV of the Wrongs Act 1958. One important implication of that abolition is that the release of one joint wrongdoer does not release all others: Thompson v Australian Capital Television Pty Ltd [1996] HCA 38; (1996) 186 CLR 574.

Counsel's submission was thus in respect of quantum. However, that depends on what quantum is being assessed as appropriate compensation payable to the Complainant by the Respondent. In that regard, we are guided by two observations. The settlement deed does not show the head of damage for which the settlement sum was to be paid to her. It might have been, for instance, paid as compensation for her estimated loss of future income and/or for medical expenses. Further, there is no evidence the settlement sum had been apportioned - evenly or otherwise - amongst the heads of claim by the Complainant. It not being indicated in the settlement deed, or submitted by either counsel, that the sum received by the Complainant was for any particular head of damage, it is not appropriate for us to make any specific assumption to any such effect.

Accordingly, we proceed on a two-fold basis. The first is that the sum paid to the Complainant was simply a compromise payment of a compensation sum for the sexual harassment incident of 1st June 1998 without any liability being admitted by the payer. The second is the general presumption that, regardless of the actual sum paid, the sum received may nevertheless be taken into account in determining the complainant's entitlement to general damages.

We thus take account of the amount paid in settlement with Mr Buttigieg. The deed detailing the amount was filed in confidence and is marked as a confidential exhibit. The amount is known to the Tribunal, to the parties and their legal advisers.

Evidence of damage suffered by the Complainant and which we have relied upon for our conclusion as to the Complainant's total entitlement to compensation for loss and injury may be summarised as follows.

On 29th June 1998, through a Victims Referral Assistance Scheme, the Complainant saw Ms Jean Barnes, a Registered Psychologist at the Kingsley Counselling Service. She later saw Ms Barnes on four other occasions, the last being 7th September 1998. In her report dated 22nd September 1999, Ms Barnes diagnosed the Complainant's condition as a Post Traumatic Stress Disorder which became exacerbated by the later employment conditions she endured after the initial triggering incident. She believed further counselling for a minimum of six months would be required to deal with the Disorder suffered by the Complainant.

The Complainant saw Dr Mustafa Ahmet in respect of her traumatic experience arising from the incident of 1st June 1998. Dr Ahmet, a medical practitioner, was somewhat confused about the actual dates he actually saw her in respect of her condition after 1st June 1998. However, it seems clear that he saw her a number of times in respect of her anxiety, insomnia and lowered moods in relation to the sexual harassment incident. He described her as being in a very upset, anxious and depressed state. He prescribed her anti-depressant drugs. In his witness statement, he indicated she suffered anxiety and depression which lasted several months and which required ongoing use of sedatives for "a persistent sleep problem which seems to have developed out of the work place incident."

The Complainant also saw Mr Rod Jepson on 11 occasions (including a phone consultation) from 27th July 1998 to 18th December 1998. Mr Jepson is an Associate Psychologist with Occupational Services of Australia. In his report dated 20th September 1999, he diagnosed her as suffering from "high levels of psychological distress" arising from "a traumatic event at her work place". That event, which we understand is a reference to the incident of 1st June 1998, was described as "perceived by her to be a threat to her physical integrity" and which "elicited response of intense fear and helplessness." He also indicated her symptoms of acute stress disorder had been exacerbated by the events occurring thereafter leading up to a threatened boycott of the canteen and the proposal to transfer her to another work place, a proposal she found to be "extremely distressing." In his opinion, the Complainant would again experience distress at the Tribunal hearing when the traumatic events would be raised. He indicated she would benefit from some further counselling thereafter.

On 21st September 1998 the Complainant was examined by the now late Dr David Sime, a consultant forensic psychiatrist. In his report dated 16th October 1998, Dr Sime reported she had an "appreciable raised anxiety level" with a "phobic component developing." We note that the thrust of his report is consistent with those of Ms Barnes and Mr Jepson.

The medical evidence is consistent with what we heard as the Complainant's version of what she suffered. We are satisfied she suffered from a significant psychological injury as a result of the sexual harassment by Mr Buttigieg on 1st June 1998. We have come to that conclusion on the totality of the evidence which we found to be generally consistent.

As the complaint has been proven, the Complainant is entitled to claim compensation under s136(a)(ii) of the Act. In determining whether we ought to order the payment of a compensation sum and, if so, what that sum ought to be, the following considerations are relevant :

(1) Under s136(a)(ii) of the Act, a complainant is entitled to seek payment of "an amount" which the Tribunal thinks fit "to compensate the complainant for loss, damage or injury suffered in consequence of" the contravention of the Act.

(2) The term "loss damage or injury" in s136(a)(ii) of the Act may be taken as a major basis of the cause of action. For the purposes of this proceeding, we respectfully adopt the following observations of Gummow J in the Federal Court in Elna Australia Pty Ltd v International Computers (Australia) Pty Ltd [1987] FCA 230; 75 ALR 271 at 279:

It is the suffering by a complainant of loss or damage which translates into a cause of action what otherwise would be no more than a contravention of the statute: Brown v Jam Factory Pty Ltd [1981] FCA 35; (1981) 35 ALR 79 at 86-8; [1981] FCA 35; 53 FLR 340 at 348-51. The "loss or damage" is the gist of the action.

The above passage was expressed in the context of his Honour's construction of section 82(1), the damages provisions of the Trade Practices Act 1974 (Cwth). However, given the similar provisions, context and remedial nature of s82(1) of that legislation and of s136 of the Equal Opportunity Act 1995, it is in our view, and with one reservation, applicable to the construction of the latter Act. The one reservation is that a cause of action may arise under the Equal Opportunity Act 1995 without any loss or damage suffered by a complainant; it may suffice that there has been a contravention of the Act.

(3) The term "loss, damage or injury" in section 136(a)(ii) of the Act is a wide expression. It includes, amongst other things, the hurt, humiliation and loss of dignity suffered by a complainant. In this regard, we note that in De Simone v Bevacqua (1994) 7 VAR 246 at 268, McDonald J expressed the view, with regards to s46(2)(b) of the Equal Opportunity Act 1984 - the predecessor to s136 of the present Act - that the term "damage" in that section should include the hurt, humiliation and loss of dignity suffered by a complainant.

(4) Such "loss, damage or injury" must have been "in consequence of" the contravention. In effect, there must be a causative link between the conduct in contravention of the Act and the "loss, damage or injury" suffered by the complainant.

(5) The recoverable measure of compensation is also embodied in s136 of the Act. This is in the phrase "an amount ... to compensate" which may be construed to be a reference to what at common law would be the concepts of "causation", "remoteness" and "measure of damages": see Gummow J in Elna's case, above, 279.

(6) Under s136 of the Act, the Tribunal can only award damages to compensate - ie, make good or make up for - the loss or damage suffered by a complainant. One way to do it is to compare the Complainant's position after the sexual harassment had occurred with the position that she would have been in if the sexual harassment had not occurred: see Hall & Ors v A & A Sheiban Pty Ltd & Ors (1988-89) 85 ALT 503 (FC).

(7) The Complainant bears the burden of establishing her entitlement to the award of compensation.

In the present application, the Complainant claims $35,000 as general damages. That sum is claimed as representing her pain and suffering arising from the incident of 1st June 1998. As we have found the evidence supported the Complainant's claim she suffered from a significant psychological injury, we find the Complainant is entitled to compensation under this heading. Compensation under this head is inclusive of the Complainant's claim for six months of psychological counselling the need for which we find to be substantially traceable to the incident of 1st June 1998.

The sum payable is for hurt, humiliation, trauma, embarrassment and other psychological injury suffered by t he Complainant and arising from the sexual harassment.

Taking into account the settlement with Mr Buttigieg, we find that the Complainant is entitled to compensation from the Respondent in the sum of $3500.00.

The next head of claim is for $15,000 as aggravated damages. Counsel for the Complainant submitted that aggravation of the Complainant's injured feelings arose from various incidents after 1st June 1998. These were identified as the "hostile work environment" that she was subjected to and comprising five incidents. There were two incidents of wharfies pinning on a "memo board" in the canteen vulgar posters; allegations that the Complainant on occasions experiencing intimidating stares and leering by Mr Buttigieg and wharfies; a threatened boycott of the canteen allegedly as a retaliatory measure against the Complainant and the return of Mr Buttigieg to his normal shift some three to four months after the incident of 1st June 1998. These were said to have caused the Complainant hurt, humiliation, embarrassment and fear.

The Respondent submitted that aggravated damages do not constitute a part of the compensation structure in the Act. In the alternative, it was submitted that aggravated damages were not payable by the Respondent as it could only be liable for the incident itself and not for the existence of a hostile work environment after the incident. Further, it was submitted there was no reliable evidence the incidents constituting a hostile work environment were directed at the Complainant or that the threatened boycott existed or that in allowing Mr Buttigieg to get back his normal shift the Respondent had caused the injury suffered by the Complainant.

We do not accept the submission that aggravated damages are not part of the compensation scheme in the Act. Section 136 of the Act provides that the Tribunal may order a respondent to pay compensatory damages. This is "an amount the Tribunal thinks fit to compensate the complainant for loss, damage or injury suffered in consequence" of the contravention of the Act. The section does not spell out how damages may be measured. For this purpose, it is noted that aggravated damages are not punitive damages; they are but a part of compensatory damages. At common law, they are "awarded for injury to the plaintiff's feelings caused by insult, humiliation and the like": Lamb v Cotogno [1987] HCA 47; (1987) 164 CLR 1 at 8; Myer Stores Ltd v Soo [1991] VicRp 97; [1991] 2 VR 597. It seems quite established that aggravated damages are available in some circumstances for contravention of the Act: see Hall v Sheiban [1989] FCA 72; (1988-89) 85 ALR 503 (Full Court); Spencer v Dowling [1996] VSC 51; [1997] 2 VR 127.

In Spencer v Dowling [1996] VSC 51; [1997] 2 VR 127, Winneke P of the Victorian Court of Appeal gave an indication of when aggravated damages would be available under s46(2) of the Equal Opportunity Act 1984, the predecessor to the present legislation (It is noted that Callaway JA agreed with his Honour's decision and reasons in that case). At p 144 of that case, Winneke P observed as follows:

Because it is the Act's intention to provide a sum of damages to "compensate" the complainant for her loss, it seems clear to me that the damages have to be compensatory, as distinct from punitive, in nature ... Because aggravated damages have emerged over the years as an aspect of the measure of compensatory damages for some torts, it has been held in certain jurisdictions that, by analogy, it is appropriate to award such damages, where the circumstances demand it, in claims made under the equal opportunity legislation.

Because the analogy to such torts has been drawn it has been suggested that, in an appropriate case, an award of compensatory damages can be swollen by an amount of aggravated damages where the conduct of the respondent has added to the hurt or humiliation on account of its malice or high handed nature: see Hall v Sheiban, at 239; De Simone v Bevacqua, at 269; Alexander v Home Office [1988] 1 WLR 968 at 875-6 per May L.J.

After further observing that the analogy drawn between the measure of damages in torts law and that in an award of damage under the Equal Opportunity Act is imperfect because of the different underlying bases, his Honour went on to say as follows (at pp 144-145):

Because, however, an award of compensation under the Act will often comprehend an award for hurt, humiliation and injured feelings caused by the discriminatory conduct of the respondent, there is little doubt that, contained within the board's power, is a capacity to aggravate such compensation where the conduct, in committing the discriminatory act, has been high handed, malicious or oppressive (see Alexander v Home Office, at 975), and has been calculated to increase the hurt suffered by the Complainant.

Thus it seems clear to us that the Tribunal may, in exercising its jurisdiction under the Act, find that circumstances exist which, having regard to the conduct of the offending party, would render it appropriate that aggravated damages be payable as a component of compensatory damages: see De Simone v Bevacqua (1994) 7 VAR 246 at 269 (McDonald J).

If we were to find that the threatened boycott existed and that it affected the Complainant's sense of job security, it arose some time after the sexual harassment incident of 1st June 1998. As such, although it may causally spring from the incident, we do not find that the complainant's sense of fear and insecurity is part of her injury arising from the sexual harassment which occurred on 1st June 1998. It would be more a consequence of a work environment as the Complainant perceived it.

Next were the alleged intimidating stares by Mr Buttigieg. In themselves, we are not satisfied that they would be of a character sufficient in the circumstances to constitute sexual harassment of the Complainant. Given management's chastisement of him for the incident, such stares would be more indicative of his being angry or upset with her for the sanctions that management had imposed on him. The Complainant's own evidence had shown she herself expected he would negatively respond to her complaint. Further and more to the point, the stares could not in our view be sufficiently causally linked to, as to form part of, the sexual harassment incident of 1st June 1998.

With regards to the poster incidents, we accept the complainant suffered further sense of hurt and humiliation from her awareness of the posters being put up. However, there are the following difficulties :

v Firstly, the incidents do not form part of the complaint.

v Secondly, there is no allegation that Mr Buttigieg was the person responsible for the posters and no other employee had been identified as being the offending person responsible for such conduct.

v Thirdly, we are not satisfied that, on the evidence, they were clearly directed at the Complainant in the sense of being in furtherance of the sexual harassment incident of 1st June 1998. They arose some time after that incident but at a point of time where they cannot be said to be sufficiently causally related to it. Accordingly, in our view, they are not clearly to be regarded as causing her injury arising from the incident of 1st June 1998 and we fail to see how the Respondent could be held vicariously liable for such incidents.

v Fourthly, we accept that the hurt on the Complainant arising from these incidents probably had a cumulative effect on her. However, it seems to us the cause-effect relationship is an issue. The incident of 1st June 1998 should have but had not been separated from the cause-effect relationship of what is effectively victimisation of the Complainant by some other employee(s) of the Respondent. On the evidence before us, nothing could allow us to embark upon the exercise of attempting to distinguish these different aspects of the Complainant's injury. Thus, we are unable to assess whether, if at all, these incidents may be said to have substantially contributed to her compensible injuries.

The preceding considerations apply equally to the fact that Mr Buttigieg was allowed to return to his normal shift some three to four months after the incident of 1st June 1998. On one view, this could be seen as evidence of a lack of sensitivity to the hurt feelings experienced by the Complainant. But, in our view, it is not sufficiently connected with the incident of 1st June 1998 and cannot support the claim for aggravated damages.

In summary, the Complainant's further hurt feelings related to matters arising after the incident and were not matters for which the Respondent is liable. The incidents do not in the circumstances support the claim for aggravated damages.

The Complainant claims for loss of earnings. This is in the form of the following three components and sums:

It is necessary to bear in mind the circumstances leading to the Complainant's resignation when dealing with this head of claim. The Complainant had resigned from her job. It was in circumstances where she felt she was effectively being asked to transfer. She felt that since Mr Buttigieg was the wrong-doer, it should have been him who should be transferred. Besides, she felt she had been targeted for dismissal, having been given a warning about her work performance.

In the circumstances, the causus nexus of her termination of employment requires close consideration. Her resignation on 13th February 1999 was some seven and a half months after the incident of 1st June 1998. She resigned she said because she felt the Respondent's management staff had been "outrageous" in suggesting she should consider accepting a transfer to another work shift. In her view, Mr Buttigieg was the wrongdoer; he should have been the person required to transfer from the shift. The management decision to offer her a transfer at best showed some insensitivity to the Complainant's feelings.

We are not satisfied that her resignation was plainly caused by the incident of 1st June 1998; the causus nexus is missing. Further, we note the lack of evidence and submissions that the loss of income was due to that incident.

We do not believe we are properly entitled to draw inferences to the effect that the Complainant's resignation was due to the further incidents she described. The evidence of such incidents was raised in the context of satisfying the Tribunal that the Respondent had no defence to the claim of vicarious liability. This was even though, as referred to below, these incidents were submitted as evidence in support of the claim for aggravated damages. To put it simply, evidence of the occurrence of such incidents was partly to show circumstances aggravating the injury suffered by the Complainant. It was also partly to show the Respondent did not have in place any sexual harassment policy or any education and/or monitoring programme to promote awareness and compliance with the law against sexual harassment. Further, these incidents were not a separate head of claim of sexual harassment; nor were they conduct by Mr Buttigieg in furtherance of his sexual harassment of the Complainant on 1st June 1998, they being conduct by various other employees of the Respondent. Finally, no submission was made by counsel for the Complainant that the Complainant's resignation was attributable to any particular incident, or a combination of the various incidents occurring after 1st June 1998.

Accordingly, we are not satisfied that the claim in respect of loss of earnings is made out.

This complaint coming on for hearing on 15-18 November 1999 and on hearing Ms Bonney of Counsel for the Complainant, and Mr Murdoch of Counsel for the Second Respondent, and on considering the submissions filed, the Tribunal finds that the complaint against the Second Respondent is proven and makes the following orders :

1. Pursuant to s.136(a)(ii) the Second Respondent is to pay the Complainant, within 30 days from the date of this order, the sum of $3500.00.

2. The complaint against the First Respondent is withdrawn.

3. Any application for costs between the Complainant and the Second Respondent must be made in writing to the Principal Registrar and lodged within 10 days of the date of this Order.