ELG v Trustee for the Sommers Freedom Fund trading as National Construction Cleaners

Issues to be determined

1. In order to establish her sexual harassment complaint, ELG must establish on the balance of probabilities: 1. That she was sexually harassed and that the sexual harassment was unlawful; and 2. That the respondent permitted the sexual harassment to occur contrary to s 52.
2. A person will "permit" sexual harassment to occur where the person: 1. knows or has reason to anticipate or to suspect that the particular act is to be or is likely to be done, 2. has the power to prevent it, 3. defaults in their duty to control or interfere in the act, and 4. thereby fails to prevent it. (Goldsteen v TCI Bondi Junction Pty Ltd [2018] NSWCATAD 135 at [26-28] per Senior Member Britton, following Dixon v RNJ Sicame Pty Ltd [2002] James v Wild Food Highlands Pty Ltd NSW ADT 154 at [54] and at [39].) This can include altering a situation so that the unlawful conduct will not continue (Elliott v Nanda [2001] FCA 418).
3. In order for sexual harassment to be unlawful, it must occur in connection with one of the circumstances in any of s 22B to 22J of the ADA. ELG submitted that s 22F(a) applied as the patient had sexually harassed her in the course of receiving, or seeking to receive, cleaning services.
4. In order to determine her sex discrimination claim under s 24, ELG must establish on the balance of probabilities that the respondent treated her less favourably than in the same circumstances, or in circumstances which are not materially different, it treated a person of the opposite sex.
5. In order to establish her victimisation claim under s 50, ELG must establish on the balance of probabilities that the respondent subjected her to a detriment on the ground that she had alleged that the patient or the respondent or any other person had committed an act which would amount to a contravention of the Act.

Evidence

1. ELG's evidence was that she was employed by the respondent from 16 November 2018 to 25 February 2019 as a casual "Clean Up Crew Member". She stated that on 20 February 2019 she and two other staff were tasked with cleaning at an aged care facility at Byron Bay. She went there on 20 February and 21 February 2019 with Mr Graeme Sommers and two other employees, referred to in the evidence as Emma and Zac.
2. She stated that she received no induction from the operator of the home or her employer but on 20 February 2019 was provided with a tour of the site by Graeme Sommers, who was her supervisor on the job. The tour included the dementia ward, where a representative of the facility stated that there were buttons to use if there were any "instances" of conduct by residents but she stated that this briefing lasted less than 30 seconds.
3. On 21 February they returned to the facility and commenced cleaning windows. She said that she was told by Mr Sommers: "Not sure what we will encounter but remember we are just here to do a job." She said that she witnessed patients having incontinence pads changed and felt she should not have been subjected to this while working.
4. She stated that they then entered a dementia ward and while they were working a man started masturbating in the presence of Emma and Mr Sommers. She said that Mr Sommers saw this behaviour.
5. She stated "His genitals were out of his pants and he was clearly masturbating" and that this conduct was within view of Emma and Mr Sommers. The man followed them as they moved from room to room. She said that at one point she said "Are you seeing this Graeme?" but Mr Sommers ignored her.
6. They proceeded to clean windows in the common room, at which time according to her statement the man followed in full view of other patients and staff and his pants were slipping down on him. Later she said a nurse came and covered the man's genitalia with a towel. ELG said she could see ejaculate on the man's body.
7. An email was in evidence containing a complaint about this event from ELG to the respondent which was dated the following day. In the email ELG stated the man stood outside the room she and Emma were cleaning, began masturbating and then walked next to her, again masturbating, until they reached the common room. In the email ELG did not claim that she informed Mr Sommers of what had happened but stated she believed Emma informed him about it but he did nothing.
8. As a result of her email complaint she had a meeting with two representatives of the respondent, Leonie Sommers and Samantha Gramza, on 26 February 2019.
9. She said that she had suffered nightmares since the incident. Furthermore on 26 February her shift for 6 March was cancelled by the respondent. Later all her shifts were cancelled and she had been given no further work since the meeting.
10. Under cross-examination ELG said that: 1. The male patient was wearing shorts but they were unzipped and she could see his genitalia. He was always about a metre away from her while she was working. 2. Mr Sommers was training the two staff members, and he was near them all the time unless he was moving the buckets used for cleaning to the next room. 3. She was not in the room when the man ejaculated. She did not recall where Mr Sommers was. She saw the patient later from outside, through a window. 4. It was put to her that she did not speak to Mr Sommers about the conduct while she was at the facility but she denied this. She said she spoke to Mr Sommers about the resident's conduct three times while they were working together. The first occasion was when she said "Are you seeing this Graeme?" Mr Sommers did not acknowledge her. The second occasion was when she and Emma were sitting outside and Graeme came up to them. ELG did not provide details of what was said but she said that she and Emma communicated to Mr Sommers that the man was present and engaging in masturbation. It was unclear from the evidence whether any conduct which ELG viewed as sexual occurred after this. The third occasion was when they were waiting for Emma to finish working and ELG told Mr Sommers she felt sick after she had seen what she assumed was ejaculate and she stated that Mr Sommers said: "Keep doing your job." 5. She also claimed that Emma spoke directly to Mr Sommers but there was no direct evidence of this. 6. She was informed by Leonie Sommers and Samantha Sommers at the meeting on 26 February that Mr Sommers was disturbed by the events as well. 7. About one hour after the meeting she received notice of cancellation of a number of her shifts. No reasons were given for the cancellation. She agreed she had not asked for any further shifts. She denied that she had said she never wanted to work with Mr Sommers again. 8. The male employee, Zac, was outside the building cleaning windows so was not exposed to the patient's behaviour. 9. She received an email advising her of the outcome of the respondent's investigation into the matter.
11. On 4 March 2019 Leonie Sommers replied to ELG advising that the employer had conducted an investigation into her complaint. The letter stated: "During the site briefing and orientation all NCC staff were instructed by RSL Life Care staff, prior to entering the Dementia ward, to press the red buttons located around the building if they become uncomfortable or feel threatened in any way. You did not follow these instructions nor did you raise your concern immediately or directly with Graeme or the RSL staff at the time of the incident which denied them the opportunity to clarify the situation for you. RSL Life Care management have confirmed, the patient you are describing is suffering from an aggravated rash to his groin area that compels him to rub the affected area incessantly. As part of his care plan, he receives treatment of topically applied creams by care staff several times a day. … We apologise that this event has effected (sic) you so deeply. Your allegations have also caused great distress to the other parties involved… We are looking for ways to encourage and develop better communication skills from staff and opportunities to grow as an organisation so that this situation is not repeated in the future."
12. Samantha Gramza on behalf of the respondent provided a statement in which she stated that the cleaning job was allocated to employees Zac, Emma and ELG.
13. She said she received complaints from Emma and ELG on 22 February 2019 regarding the incident. On 25 February she offered ELG a shift for the following day which was accepted. On 26 February she had a meeting with Ms Leonie Sommers and ELG. Emma, who had also complained, resigned prior to the meeting. Emma's complaint was not in evidence and Emma did not give evidence at the hearing.
14. Ms Gramza stated that during the meeting ELG described the incident and said that she did not say anything to Mr Sommers on the day as "he should have known this was an unacceptable situation without her saying it." ELG also reportedly said that she never wanted to work with Mr Sommers again and would be happy to never have another shift with the company again.
15. Ms Sommers said she offered ELG counselling to which ELG said that nothing would fix it and the damage was done.
16. Subsequently all booked work for the next 2 weeks was cancelled by the company except for one job, to allow them time to investigate the matter.
17. Mr Sommers provided a statement in which he said that he met Emma, ELG and Zac on the site on 20 February 2019 and informed them that they would be cleaning windows in an aged care facility with a dementia ward, and walked them through the facility. He said: "When we entered the dementia ward one of the nursing staff approached us and gave us a briefing on what to do if anyone of us felt threatened or in danger. He also explained the use and location of emergency call buttons. All staff were present at this briefing."
18. The next day he stated that they entered the dementia ward and while they were there he observed a patient enter the room. He said that the patient "appeared in some distress" but "at no time did I see him expose himself or did I observe him to be masturbating." He said he observed him wandering around the ward but neither Emma nor the applicant said that they felt in danger or distress. He denied having any concerns or complaints raised with him by any of the three employees.
19. We note that in its response to the complaint, the respondent stated: 'It is not disputed that Mr A touched his genitals in front of Mr Sommers, Ms Baird and the complainant on Thursday 21 February 2019. Mr Sommers commented that Mr A's behaviour was not unusual in the Dementia Ward (noting that he has been cleaning windows in the Dementia Ward for at least a five year period)."
20. The respondent disputed, however, that the conduct of the patient was of a sexual nature. It relied on hearsay evidence which it stated came from a member of staff from the aged care facility named "William" whom they interviewed as part of the investigation conducted by the respondent. "William" had stated that the patient in question was suffering from a severe rash and was in extreme discomfort and he was treated by staff with a topical cream. The facility staff would not intervene if they saw him with his hand down his pants unless they considered he was acting in a sexually inappropriate way. "William" also denied that anyone had expressed any concern to him.
21. There were emails in evidence recording that a number of jobs were cancelled after the meeting by the respondent. It was not disputed that ELG had not been offered further jobs.
22. Neither Ms Sommers nor Mr Sommers were required for cross-examination by the applicant, who was unrepresented. The respondent was also unrepresented. There was no other witness evidence as to the conduct.

Whether the conduct was of a sexual nature

1. There is a dispute between the parties about the nature of the conduct of the patient in the dementia ward while ELG was cleaning in the facility. ELG portrays it as active and repeated masturbation within the sight of her and Emma, as well as Mr Sommers. The respondent contended that the patient was suffering discomfort in the genital area which was later treated by a nurse and there was no ejaculation, rather what ELG saw was the patient being treated with a topical cream.
2. To be sexual harassment, the conduct must be conduct of a sexual nature. This must be determined objectively. "The characterisation of conduct as sexual harassment cannot depend upon the subjective response of its object except insofar as the section requires it to be unwelcome": Hall v A & A Sheiban Pty Ltd [1989] 20 FCR 217 at 277 per French J. It follows that it is not ELG's own view of the conduct which determines whether it is of a sexual nature.
3. In Yelda v Sydney Water Corporation; Yelda v Vitality Works Australia Pty Limited [2019] NSWCATAD 203, the Tribunal held that conduct may be of a sexual nature if it was not intended to have a sexual connotation but if it is likely to be, or if it is reasonably capable of being, sexual in nature, such as wording in a poster which could be interpreted by a reasonable person to have a sexual meaning (Yelda v Sydney Water Corporation).
4. As noted by Raphael FM in Font v Paspaley Pearls & Ors [2002] FMCA 142 at [134] with regard to the Sex Discrimination Act, the ADA is: "…designed to protect people from the type of behaviour which other members of the community would consider inappropriate by reason of its sexual connotation. It is the actions themselves that have to be assessed, not the person who is carrying them out."
5. It also has been held in relation to the Sex Discrimination Act 1984 (Cth) that it does not matter whether the perpetrator intended to act in a sexual way or was aware that he or she was acting in a sexual way, and sexual harassment can occur by accident. The cases where this has been applied, however, were where the conduct was clearly of a sexual nature but was not addressed at the person who complained about it, or there was accidental exposure to sexual material (Johanson v Michael Blackledge Meats [2001] FMCA 6 and the cases cited there at [84-89]).
6. Accordingly the test we have applied in determining whether the conduct was of a sexual nature is whether the actions of the patient, viewed objectively, were sexual in nature or reasonably capable of conveying a sexual meaning.
7. Based on the available evidence we are satisfied that the patient was touching his genital area repeatedly under his clothing and that at times he was near ELG, Emma and Mr Sommers while they were working. We are satisfied that at one point while they moved from one room to another his arm touched ELG's. She also said he was never much more than a metre away from her, however that would mean he was also close to Emma and Mr Sommers as well as they were working as a team and Mr Sommers was supervising. We also accept ELG's evidence that at some point his genitalia were exposed.
8. ELG did not witness the man ejaculate. She said that she was outside looking through a window when she saw him covered with a towel by a nurse and what she thought was ejaculate. The alternative explanation put forward by the respondent is that it was the cream applied by the nursing staff. There was mutual evidence that nursing staff were present in the room at that time. We find this interpretation of the evidence more probable.
9. In some circumstances the act of touching one's genital area, or exposing one's genitalia when following another person, even if not masturbating, would be reasonably capable of conveying a sexual meaning. The conduct in this case, however, was committed by a patient in a dementia ward. ELG was aware that she might witness confronting behaviour in the facility and had already witnessed conduct which would be regarded as inappropriate in another context. A reasonable person in those circumstances would expect inappropriate conduct of some kind. The question is whether the conduct went beyond that and had a sexual connotation.
10. In the absence of any evidence of sexual gratification or sexual meaning, in our view the conduct of the patient which is established on the evidence, in the context of a dementia ward, is not reasonably capable of having a sexual connotation. In saying this we do not dispute that the behaviour was confronting to the female employees. We are not persuaded, however, that the conduct was reasonably capable of conveying a sexual meaning in the circumstances.
11. Given this finding it is not necessary for us to determine whether the conduct was unlawful under the ADA or whether it was permitted by the respondent in contravention of s 52. We note, however, in relation to whether the respondent permitted the conduct, that the evidence of what the applicant and Emma told Mr Sommers about the conduct and what he saw was sparse and lacked detail. To succeed on this point the applicant had to prove that the respondent had knowledge that the "particular act" of sexual harassment could occur or was occurring, at a point where it could act to prevent it or stop it from continuing (Goldsteen at [26-28]). Given the uncertain state of the evidence about what was said to Mr Sommers and what he saw, we could not be satisfied on this point.
12. Accordingly the claim that the respondent contravened s 52 by permitting unlawful sexual harassment must fail.

The sex discrimination claim

1. This part of the applicant's case was not clearly formulated but appeared to be that she and her fellow female employee who were cleaning windows inside the building were treated less favourably than the other male employee named Zac because he was cleaning outside the building and was not subjected to the behaviour of the resident, who was inside. She said the resident's behaviour was "directed at us", meaning herself and the other female employee.
2. In order to establish a contravention of s24(1)(a) she must establish that she was treated less favourably by the employer on the ground of her sex than in the same circumstances, or in circumstances which are not materially different, her employer treated a person of the opposite sex.
3. The less favourable treatment must fall into one of the following categories: 1. in the arrangements the employer makes for the purpose of determining who should be offered employment, 2. in determining who should be offered employment, 3. in the terms on which the employer offers employment, 4. in the terms or conditions of employment which the employer affords the employee, 5. by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or 6. by dismissing the employee or subjecting the employee to any other detriment.
4. It is not evident that the way that the work was arranged on that day amounted to terms or conditions of employment under (d). Even if it were, there was no evidence that her employer arranged the work in this way because of the sex of the applicant and her co-worker. While the resident's behaviour may have targeted her, this cannot be attributed to the employer in our view.
5. It could be said that the applicant was subjected to a detriment by working in an area where she was exposed to the patient's unwelcome behaviour. However again there is no evidence that the respondent placed her in that area because of her sex. There was evidence that she worked both inside and outside the building.
6. Accordingly we find this claim is not substantiated.

The victimisation claim

1. The applicant claims that the respondent took action contrary to s 50. Section 50 provides that it is unlawful to subject a person to a detriment in any circumstances on the ground that the person victimised has - 1. brought proceedings against the person or any other person under the ADA; 2. given evidence or information in connection with proceedings brought by any person under the ADA; 3. alleged that any person has committed an act which, whether or not the allegation so states, would amount to a contravention of the ADA; or 4. otherwise done anything under or by reference to the ADA in relation to the discriminator or any other person, 5. or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.
2. The approach to be taken by the Tribunal to a claim of victimisation has been set out in Dutt v Central Coast Area Health Service [2002] NSWADT 133 at 235: "The approach taken by this Tribunal to assessing evidence in victimisation complaints is set out in Shaikh v Commissioner, NSW Fire Brigades (1996) EOC 92-808 at p 78,986 (see D -v- Berkeley Challenge and the decisions cited there at para 99). We see the steps as logically proceeding in this order: a Tribunal will ask whether an Applicant did or was suspected of doing one of the acts in s50(1), and whether the Respondent did anything which caused detriment to the Applicant. If the answer to both is `yes', the Tribunal will then ask whether there is a causal link between the two: did Respondent do that thing on the ground that the Applicant did or was suspected of doing one of the acts in s50(1)."
3. The applicant must establish that she suffered loss or damage that was real and not trivial; and that one of the "real", "genuine" or "true" reasons she was subjected to that detriment was because she did one of the things listed in s 50(1) of the Act: Nicholls & Nicholls v Director-General Department of Education and Training (No 2) [2009] NSWADTAP 20 at [28].
4. The applicant's written complaint does not refer to proceedings but it alleges that the respondent and Mr Sommers allowed the applicant to be subjected to the conduct which she alleges occurred, described above. In our view that is sufficient to come within s 50(1)(c) of the ADA. It is not a requirement that the complaint refer to the ADA.
5. There is evidence that the respondent met with the applicant and subsequently the respondent cancelled shifts allocated to the applicant following the meeting. The applicant claims this was because of her complaint. The respondent says that at the time it was a very small business and it cancelled all jobs but one for two weeks to allow it to investigate the allegations. There is evidence that it did investigate and the applicant received its findings.
6. There was also evidence from Ms Samantha Gramza that the applicant said she did not want to work with Mr Sommers or the company any more and the applicant agrees she did not request any shifts after receiving the investigation findings.
7. On the available evidence, we are not satisfied that the applicant has established to the required standard that the real, genuine or true reason for the respondent to cancel her shifts was the fact that she had alleged that the respondent had committed an act which would amount to a contravention of the ADA.
8. Accordingly we find this complaint is not substantiated.

Conclusion

1. The applicant's complaints are not substantiated in whole or in part, therefore the complaints should be dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar

Amendments 30 September 2020 - Non publication DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 September 2020