Sex Discrimination Act 1984 (Cth), ss.28A(1)(b), 28B(1), (2), 106

Djokic v Sinclair [1994] HREOCA 16; (1994) EOC 92-643

Brigginshaw v Briggingshaw [1938] HCA 34; (1938) 60 CLR 336

Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517

NSW GREYHOUND BREEDERS, OWNERS AND TRAINERS ASSOCIATION

(2) Applicant to pay respondents costs pursuant to Part 21, Rule 21.10 of the Federal Magistrates Court Rules.

NSW GREYHOUND BREEDERS, OWNERS AND TRAINERS ASSOCIATION

1. In this matter the applicant has brought proceedings pursuant to s.46PO of the Human Rights and Equal Opportunity Commission Act 1986 ("the HREOC Act") seeking a declaration that the respondents have committed unlawful discrimination and an order requiring them to pay her damages under s.46PO(4)(a) and (d). The discrimination about which the applicant complains is sexual harassment in employment which is prohibited on the part of an employer by s.28B(1) and by an employee by s.28B(2) of the Sex Discrimination Act 1984 (Cth) ("the SDA").

2. Sexual harassment is defined in s.28A of the SDA in the following way:

For the purpose of this division, a person sexually harasses another person (the "person harassed") if:

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

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

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

3. The applicant was an employee of the third respondent at its Gosford dog track. Her employment commenced in about December 2000. She earned approximately $170.00 per week at the track. Her husband, Wayne, also worked at the track. The applicant and her husband resigned on or around 14 February 2002. The applicant claims that her resignation was brought about by sexual harassment on the part of the first and second respondents for whom the third respondent is vicariously liable pursuant to s.106 of the SDA. The respondents deny that the incidents about which the applicant complains occurred.

4. The applicant swore two affidavits dated 20 December 2002 and 5 December 2002. At [2] of her affidavit of 20 September she states:

"On 4 December 2001 the first respondent whom was employed in the kennel block rubbed and massaged my neck, played with my hair and was singing in my ear "Can't get you out of my head". This action by the first respondent continued on a regular basis over the next three weeks. I estimate it happened at least three times."

At [4] the applicant's second allegation is made:

"On 29 January 2002 at approximately 5.00pm the second respondent said to me in the presence of work colleagues Billy, Steve and Bob that he had a "donkey dick" and for me to come over to the horse stall and he would show me what a real man could do."

"On that same evening whilst I was in the office a colleague, John, squeezed past me and took hold of my hips and said "she didn't even flinch"."

"In the working environment of the third defendant at Gosford there was a significant amount of sexual related activity which included sexual activity between other co-workers. This activity made me feel uncomfortable."

5. Sexual activity which makes a person feel uncomfortable could fall within the definition of "sexual harassment" found in 28A(1)(b). Evidence was called concerning the general atmosphere in the workplace, which was the subject of allegation and denial. I sought clarification from the advocate for the applicant as to whether this evidence was being led to support a claim under s.28A(1)(b) or whether it was being led to indicate that there were no proper procedures in place within the workplace so that the third respondent would be vicariously liable for the activities of the first and second respondents. I was told that this was the purpose of the evidence.

6. The sexual behaviour referred to above was detailed in the applicant's affidavit of 5 December 2002 at paragraph 12. Much of it centres around the conduct of one Debbie Shepherd, the kennel supervisor. The applicant also makes a further complaint of an action directed at herself when she states at [12(xii)]:

"Paul Greentree said to me on one occasion "What perfume are you wearing you smell good." I told him what it was and to go and buy his wife some."

7. One of the incidents complained of to illustrate the type of activity that the applicant alleged went on at the Gosford dogs concerned Ms Shepherd. It is articulated in [4(b)] of the affidavit of Kylie Schloeffel, the sister of the applicant.

"One Tuesday at a greyhound meeting my nephew (Karen's son) ran up the ramp to the kennel block to find his mother. He came out looking very white so therefore being responsible for him I went to see what affected him. I observed the kennel supervisor, Debbie Shepherd at the time, on top of a male co-worker on the dog ID table - this being totally inappropriate for a child of six to observe."

8. In evidence the applicant said that she complained about the incident of the neck massage to Mr Greentree, the racing secretary. She claimed to have made two complaints to him on that night about the incident, the first time around 6.30p.m. and the second around 7.00p.m. When she told him that she could not work in an environment like that and was putting in her resignation, she said that Mr Greentree told her not to resign because he was going to look into the matter. She did not resign at that time. Under cross-examination the applicant stated that the first incident could have taken place on 4 December or the week before. She did not accept that she was sticking her neck out and that Mr Barrington said to "put your head forward" and then massaged her neck for approximately 45 seconds. She said that she told Mr Barrington to stop and did not say to him "that's good". She insisted that he both played with her hair and sung. She said that her husband had told Mr Barrington to stop but he massaged her neck on another occasion.

9. The applicant stated that on 29 January 2002 at about 5.30p.m. five employees were standing around outside the kennel block. One of the employees, Ron Wright, turned to her and said:

"I have a donkey dick, if you come over to the horse stalls I will show you what a real man can do."

She gave evidence that she responded to this remark with the words "you are sick". Under cross examination the applicant agreed that she did not report the incident until 13 February, she said this was because she had three children and didn't want to get sacked. She told Mr Greentree about the incident on 13 February when she resigned.

10. Under cross examination the applicant also said that she saw Ms Shepherd on top of the other employee (the incident her son witnessed) but admitted that she hadn't put it in her affidavit.

11. When the applicant did resign she telephoned Mr Brendan Scott, a senior official of the third respondent. He told her to put her complaints in writing so that he could investigate them, she did this. Her letter of 17 February 2002 is Exhibit "1". In the fourth paragraph she states:

"On Tuesday 12.02.02 after the last race I went to the office to hand in my paperwork, there was a sexual harassment poster there, I asked Paul could I have a look, he handed it to me and both he and Mr John Varly said "it was going to be put in the kennel block for Debbie, our kennel supervisor".

At the end of the letter in which she makes no other reference to any sexual activity or any harassment she says:

(i) Incidents reported should be actioned asap after they arise."

12. The applicant's letter was not the only correspondence, however. Her husband also resigned on that night and he wrote a letter on the same day. That letter refers to incidents reported to Mr Greentree over the past twelve months and yet to be resolved and contains a number of references to the alleged conduct of Ms Shepherd. It does not make any reference at all to the neck massaging incident or the "donkey dick" remark incident.

13. Mr Daley gave evidence in his affidavit. He makes reference to two remarks made by Ms Shepherd. He said in evidence that he resigned because of the sexual incidents at the track which he felt were objectionable. He said that he reported the third hair incident to Mr Greentree after his wife had told him about it and that he had told another worker, Mr Davis, to keep an eye out for Mr Barrington stroking his wife's hair. He said that he saw Mr Barrington play with his wife's hair and massaging her shoulder areas. He was behind some glass partitioning when this occurred and he tapped on the glass to warn Mr Barrington off. He was upset that although the incident never happened again no investigation took place and no-one asked his wife to write down what had occurred and this led to his resignation.

14. Kylie Schloeffel, the applicant's sister, gave evidence. She worked for the third respondent at Gosford for about three or four months. She gave evidence about remarks being made by Ms Shepherd of a sexual nature, which she found offensive. In regard to the alleged incident witnessed by the applicant's son she said that the young lad ran into the kennel block and came back looking white and horrified. She looked in and she saw Ms Shepherd on top of Aaron Barrington. She said she didn't think it was right and told the applicant's husband. She agreed that Ms Shepherd and Mr Barrington were clothed but says that she saw Ms Shepherd rub herself up against Mr Barrington which she felt was embarrassing.

15. The applicant called a Mr William John Davis. Mr Davis had declined to give a statement to the applicant's solicitors and gave his evidence under subpoena. He stated that he had worked at the Gosford track for many years up to approximately eighteen months ago and that he knew both the applicant and Mr Ron Wright. He stated that he was at the track on 29 January 2002 and was part of the group of which Mr Wright and the applicant were members standing around outside the kennel block. There were general discussions going on which he was not really listening to. He stated that he heard something about "horse stalls" and began to listen and he heard Ron Wright say to the applicant "I can show you what a man can do." They were about two feet away from him. He said that Mr Wright put one hand around the applicant and she put a hand around him and said "No we won't go there." Mr Davis indicated that he thought Mr Wright's arm gesture was just a friendly gesture and he had never seen Mr Wright make any other gestures towards Ms Daley. He could not recall any conversations with Mr Wright of a sexual nature and he did not believe that there was a sexual atmosphere at the racetrack. Mr Davis was asked about Ms Shepherd who worked under him when he was running the kennels at Gosford. He said there was no sexual activity or conversations to his knowledge and he didn't hear anything rude or sexual from anyone.

16. Under cross examination by the advocate for the respondent Mr Davis said he had never seen Mr Barrington massaging the neck of the applicant and he denied that the applicant's husband had asked him to keep a look out for that type of activity.

17. One of the incidents complained about as indicating the type of thing, which took place at Gosford, occurred at a Christmas party. The applicant alleged that Ms Shepherd had sat on the lap of Mr Davis, gave him a passionate kiss and placed his hands on her breasts. Mr Davis stated that this did not happen, that he was a 58 year old happily married man and was "too old for that sort of thing." He did agree that he had put his hands on Mr Shepherd's thigh.

18. Mr Barrington was called. He had sworn an affidavit on 9 January 2003. He admitted that on one occasion he had massaged the applicant's neck. He said that the incident occurred about three weeks before the date alleged by the applicant. He said that the applicant and he were sitting at the card table handing out kennel passes when he noticed that the applicant was stretching her neck. When there was break in the work he told her to put her head forward which she did. He then massaged her shoulders and lower neck for about 45 seconds. He said that the applicant did not complain but stated she said words to the effect "That's good." He denied that he ever played with her hair or sung in her ear. At [7] of his affidavit he states:

"The next night that I was at work Debbie Shepherd said to me:

Paul has received a complaint about you from Karen's husband. He says that you sexually harassed his wife.

I was very upset that I might have upset Karen and her husband. I said:

All I did was massage her neck. I will apologise to them both. I didn't even know they were married."

I wouldn't say anything, just keep your distance.

I took her advice and I had no further contact with either of them other than to say hello and goodbye."

Mr Barrington denied that there was a culture of sexual activity in the workplace. Mr Barrington's evidence was repeated under cross examination. He was asked a number of questions about incidents relating to Ms Shepherd, which he did not have any knowledge of.

19. Mr Ron Wright gave evidence in his affidavit of 9 January 2003. He denied the allegation concerning the conversation with the applicant and he denied another allegation concerning a certain activity between himself and Mr Shepherd that had been alleged by the applicant. Under cross examination Mr Wright stated that he wouldn't say that he had never put his arm around the applicant but he did not make a practice of putting his arm around her waist and he did not remember her putting her arm around his waist. He also denied there was an atmosphere of sexual activity at the Gosford dog track. He was not aware of any relationship between Aaron Barrington and Ms Shepherd and believed the allegations made against them were false. He repeated that he had never said the words attributed to him, ever.

20. Mr Greentree, the secretary, swore an affidavit of 17 January 2003. He said that he had not heard any direct complaint from the applicant about sexual harassment prior to her resignation on 13 February. He accepted that Mr Daley had complained to him about incidents relating to Ms Shepherd and stated that he had investigated them. He said that he was advised by Ms Shepherd in relation to the kennel table incident that she and the other person were merely mucking around. He said that as the identification table was in clear view of the public and that the kennel block is very busy he didn't believe that the type of activity suggested had been going on. At [10] of the affidavit he says:

"After the last race I met with her (the applicant) at the bar.

I said to her why are you resigning. She replied "Wayne told me to. I have to obey him."

21. Under cross examination Mr Greentree agreed that Mr Daley had complained to him about his wife having her neck massaged. He didn't recall Mr Daley speaking to him twice about it but he said it could have happened. He did not believe that what Mr Daley was complaining about was sexual harassment. He said that Mr Daley had told him that he wasn't happy that a member of his staff was rubbing the neck of his wife. He said that he had asked Ms Shepherd to look into the matter and she had reported to him that Mr Barrington had merely rubbed the back of Ms Daley's neck. Mr Greentree thought nothing of it and did not get back to Mr Daley.

22. Mr Greentree admitted that he had asked the applicant what perfume she was wearing once. He agreed that the applicant had told him the name and suggested that he buy his wife some. He said it was a passing gesture and had no sexual overtones. He did not believe there were any sexual overtones or activity between the staff. He confirmed the incident of Ms Shepherd sitting on the knee of Mr Davis at the Christmas party but said that he did not see them do anything more than give each other a kiss at the end of the night. He did not recall any sexual references in Ms Shepherd's conversation.

23. The final witness for the respondent was Ms Shepherd herself. In her affidavit of 7 January 2003 she denied that she at any time lay on the top of Aaron Barrington in the kennel block and denied the other allegations that were made against her. In cross examination she agreed that at the Christmas party she had sat on Mr Davis' lap facing him and that he put his hands on her hips. She denied there was any kiss or embrace and she did not put his hand on her breast.

24. There are three incidents of sexual harassment alleged. The first relates to the neck massaging which the applicant states happened on three occasions. Her husband says that he witnessed it on one occasion and Mr Barrington agrees that it took place on one occasion. The applicant's evidence is that she told Mr Barrington to stop but that he continued on two other separate occasions. Mr Barrington's evidence is that the applicant said she enjoyed the experience but that because her husband had complained about it he never repeated it. The second is the "donkey dick" remark incident. The applicant says that this occurred and the offensive words were used to her by Mr Wright. Mr Wright denies saying any of the words alleged including the words relating to the horse stall. Mr Davis did not hear the words "donkey dick", did hear words about the horse stall and did hear him say "I can show you what a man can do" but states that then the applicant and Mr Wright put a hand around each other and the applicant said to Mr Wright "No we won't go there" in a friendly manner. The applicant stated that she said to Mr Wright "You're sick."

25. The third incident, that Mr Greentree made a remark about the applicant's perfume, was admitted by him.

26. There was then a very considerable amount of evidence about the behaviour of Ms Debbie Shepherd. Ms Shepherd is not on trial in this case. It is unfortunate that the applicant has sought to establish the existence of an atmosphere of a sexual nature within the workplace by reference to the activities of one particular person. Suffice to say that apart from the corroboration provided by Ms Schloeffel in respect of the incident on the kennel identification table the gravamen of all the other incidents is denied by all the other witnesses.

27. The incident referred to concerning "John" in [4] of these reasons was not further pressed at the hearing.

28. The responsibility for proving the case to the required standard falls upon the applicant. The required standard in a civil matter is on the balance of probabilities; but as Sir Ronald Wilson sitting as a hearing commissioner under the SDA in Djokic v Sinclair [1994] HREOCA 16; (1994) EOC 92-643 said:

"It is a serious allegation and in considering the evidence I have borne in mind principles relating to the standard of proof enunciated in Brigginshaw v Briggingshaw [1938] HCA 34; (1938) 60 CLR 336 I have required persuasive proof of the complainant's allegation."

This is the correct test in these matters (Gauldridge v Booth AT ALR1) but the strictures of Barwick CJ in Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517 at 521-2 should also be borne in mind:

"But the standard of proof to be applied in a case and the relationship between the degree of persuasion of the mind according to the balance of probabilities and the gravity or otherwise of the fact of whose existence the mind is to be persuaded are not to be confused. The difference between the criminal standard of proof and the civil standard of proof is no mere matter of words: it is a matter of critical substance. No matter how grave the fact which is to be found in a civil case, the mind has only to be reasonably satisfied and has not with respect to any matter in issue in such proceeding to obtain that degree of certainty which is indispensable to the support of a conviction upon a criminal charge."

29. In other words, I do not have to be certain that the case has been made out but I must have a comfortable degree of satisfaction that it has been. It is important when considering whether the evidence does so satisfy me that I deal with just the evidence relating to the impugned incidents. I should not be diverted by the evidence concerning Ms Shepherd. If this evidence was true it might be indicative of a lax attitude in the workplace to matters of a sexual nature which might well make the third respondent vicariously liable for any breaches of the SDA by its employees. But what it does not do is establish that the incidents complained about and which were instigated by three other people took place or were more likely to have taken place than not.

30. With these matters in mind I find that Mr Barrington on one occasion massaged the applicant's neck. In the face of Mr Barrington's denials, the rather confused evidence of the applicant in relation to the alleged two other occasions and the unlikelihood of Mr Barrington having repeated the action after being told to stop by Mrs Daley and being advised about Mr Daley's concern at the incident by Ms Shepherd, I am not able to reach the required degree of satisfaction concerning the two other alleged incidents.

31. I find that in a conversation Mr Wright said to the applicant words to the effect "Lets go over to the horse stalls I'll show you what a man can do." I am not prepared to make the finding in respect of the "donkey dick" remark in the face of Mr Wright's denials and the lack of corroboration from Mr Davis. If his attention had been attracted by the words "horse stalls" I am sure it would have been attracted by the words "donkey dick".

32. I find that Mr Greentree made the remark about the perfume.

33. In relation to the first two incidents I now have to consider whether or not they constituted unwelcome conduct of a sexual nature. This is not one of those cases where an applicant alleges that she put up in silence with actions that others may well have complained about earlier. The applicant says that in respect of both incidents she made it quite plain to the other party his action had been unwelcome. In the case of the hair incident Mr Barrington says that the applicant allowed him to massage her neck and said words to the effect "That's good." He did not consider it to be conduct of a "sexual nature". I am not satisfied to the required standard that the conduct was unwelcome. I saw both witnesses in the witness box. The applicant was tearful throughout her evidence. I have no doubt that it was all very distressing for her. Mr Barrington gave his evidence evenly. It did not strike me that he was dissembling. I would have found it easier to accept the evidence of the applicant if she had only referred to one incident. I find it difficult to accept that three incidents occurred unless she did not indicate to Mr Wright at the end of the first incident that this massaging was unwelcome. She said that she did. But she also says that the other two incidents occurred. There are logical explanations as to why this complaint against Mr Barrington has been made. Mr Daley alleges that he saw one incident of his wife being massaged by him. That may have upset Mr Daley. The applicant may have indicated to her husband that the action was unwelcome. The fact is I am unable to say, and in those circumstances I cannot find that the conduct was unwelcome.

34. The second incident concerns Mr Wright. I saw him in the witness box. His evidence was not as satisfactory as Mr Barrington's. He denied using words that Mr Davis had overheard. I preferred the evidence of Mr Davis. That is why I made the finding that I did. This leaves me with a dispute between Mr Davis and the applicant concerning whether or not the remark was unwelcome. The effect of Mr Davis' evidence is that it may not have appeared so to an outsider. But this is not the test, the test is set out in s.28A(1), however, Mr Davis, whose evidence is relied on by the applicant to prove that the words were spoken, did not recall the applicant saying to Mr Wright "You are sick." It is difficult for me to find that some of the evidence of Mr Davis is correct and some is not when it is directed at and does substantially establish what the applicant says was said. Again the applicant is not saying that she hid her feelings when Mr Wright made the remark, she says that she reacted strongly to it. I prefer the evidence of Mr Davis. He says that her reaction was friendly and included putting an arm around Mr Wright. I am not satisfied that the remark made was unwelcome to this applicant even if I would otherwise have found that a reasonable person would be offended, humiliated or intimidated by it.

35. The third remark relating to the perfume has been admitted. I saw Mr Greentree in the witness box. He made it clear that the remark had no sexual overtones. I accept his assurance. It was made in a passing moment between two people who had known each other for some time. Even if it could be considered unwelcome conduct of a sexual nature, it does not strike me as the type of remark which a reasonable person, having regard to all the circumstances, would have anticipated might offend.

36. In coming to the findings which I have in relation to the facts alleged, I am not saying that the applicant's version of events is untrue. I am saying that she has not established their truth to the required standard. This means that the applicant has failed to satisfy me that either the first or second respondent has engaged in conduct or committed an act, which is unlawful under the SDA. There is no separate allegation against the third respondent. It follows that I must dismiss the application, which I do. I order that the applicant pay the respondent's costs pursuant to Part 21, Rule 21.10 of the Federal Magistrates Court Rules. I certify that the matter is one suitable for an advocate pursuant to Part 21 Rule 21.15.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Raphael FM