Golding v Sippel and The Laundry Chute Pty Ltd [2021] QIRC 74

• [37] Ms Golding's contentions are that Mr Sippel refused to let her work and sent her home ('the detriment') because she rejected the acts of sexual harassment. In the alternate, that Mr Sippel caused the detriment because he believed she intended to make an allegation or commence a proceeding against him.

• [38] Section 133 of the Act deals with vicarious liability. It states:

(1) If any of a person's workers or agents contravenes the Act in the course of work or while acting as agent, both the person and the worker or agent, as the case may be, are jointly and severally civilly liable for the contravention, and a proceeding under the Act may be taken against either or both.

(2) It is a defence to a proceeding for a contravention of the Act arising under subsection (1) if the respondent proves, on the balance of probabilities, that the respondent took reasonable steps to prevent the worker or agent contravening the Act.

• [39] Pursuant to s 133 of the Act, Ms Golding has elected to name both Mr Sippel and The Laundry Chute Pty Ltd as Respondents. Mr Sippel represented both Respondents in this matter.

• [40] As I have decided in favour of Ms Golding, subsection (1) above is satisfied.

• [41] With respect to subsection (2), Mr Sippel led no evidence in these proceedings as to whether or what policies and practices may have been in place to prevent the conduct occurring.

• [42] Given his position as both owner and manager of the laundromat, I find The Laundry Chute Pty Ltd is vicariously liable for the acts of Mr Sippel.

• [43] The effect of s 204 of the Act is that it is for Ms Golding to prove, on the balance of probabilities, that the Respondents contravened the Act.

• [44] The standard of evidence is summarised in Briginshaw v Briginshaw, where the High Court stated that:[7]

In determining whether evidence allows that degree of persuasion that amounts to proof of an allegation on the balance of probabilities, the Tribunal of fact must bear in mind the gravity of the allegation made and the seriousness of the consequences to a party against whose interest any adverse finding might be made. The decision maker must be reasonably satisfied or feel an actual persuasion or feel comfortably satisfied that they have reached the right decision.

• [45] In a Directions Order dated 14 October 2020, written closing submissions were directed in the order Complainant - Respondents - Complainant (in reply, on issues of law only).

• [46] The Complainant's written closing submissions were filed on 12 January 2021.

• [47] The Respondents' written closing submissions were filed on 12 February 2021.

• [48] The Complainant's written closing submissions in reply were filed on 26 February 2021.

• [49] The evidence of the three witnesses and 5 Exhibits tendered at the Hearing, together with the written closing submissions of each Party, were considered in this Decision.

• [50] This case turns on the following five questions:

• [51] The first question is 'whether or not sexual harassment occurred?'

• [52] Next, there are three questions to be decided on 'direct discrimination', relating to the attribute of 'sex':

1. Was Ms Golding treated, or proposed to be treated, less favourably than another person (either a real or hypothetical comparator) without the attribute of 'being female', in circumstances that are the same or not materially different?

1. If it is decided that a 'less favourable' treatment occurred, was a substantial reason discriminatory?

• [53] That Ms Golding is 'female' is not in dispute.

• [54] Finally, 'whether or not Ms Golding was victimised under s 130 of the Act?'

• [55] Vice President O'Connor recently observed in Motlap that:[8]

In assessing the evidence, let me respectfully adopt the approach of MacKenna J who described his fact-finding process in a paper delivered at the University College, Dublin in 1973:

This is how I go about the business of finding facts. I start from the undisputed facts which both sides accept. I add to them such other facts as seem very likely to be true, as, for example, those recorded in contemporary documents or spoken to by independent witnesses like the policeman giving evidence in a running down case about the marks on the road. I judge a witness to be unreliable if his evidence is, in any serious respect, inconsistent with these undisputed or indisputable facts, or of course if he contradicts himself on important points. I rely as little as possible on such deceptive matters as his demeanour. When I have done my best to separate the true from the false by these more or less objective tests, I say which story seems to be the more probable, the plaintiff's or the defendant's?

• [56] I find that Ms Golding was sexually harassed. Mr Sippel engaged in a series of sexual behaviours towards Ms Golding in circumstances where, at least, a reasonable person would have anticipated the possibility that Ms Golding would be offended, humiliated or intimidated by that conduct.

• [57] I find that Ms Golding was discriminated against for being female. Ms Golding has demonstrated that, on the balance of probabilities, she was treated less favourably than another person without the attribute of 'sex' would have been, in circumstances that are the same or not materially different. Further, that a substantial reason for the less favourable treatment was discriminatory.

• [58] I do not find that Ms Golding was victimised, within the parameters of s 130 of the Act. Victimisation happens when the detriment is done because Mr Sippel believed Ms Golding would make allegations or commence proceedings. I do not believe that was the case. Rather, on the evidence before me, it seems more likely that Mr Sippel withheld work from Ms Golding because she rejected his sexual advances and he applied that tactic to leverage her compliance. That approach was ultimately unsuccessful, and Mr Sippel gave the 'proper job' to someone else.[9] Ms Golding then complained to the police, who advised her not to return to the workplace for her own safety. The chronology of events simply does not support the victimisation claim.

• [60] There were two witnesses for the Complainant's case:

• [61] Mr Ian Sippel (First Respondent) was the sole witness for the Respondents' case.

• [62] In terms of her presentation as a witness, Ms Golding was simply falling over herself to give her account of events. So eager was she, that I had to repeatedly remind her to wait until she had heard the entirety of the question before beginning to answer through the interpreter.[10]

• [63] That said, the content of her responses were clearly unrehearsed, although expressively delivered. For instance, I had to remind Ms Golding to address Counsel asking the questions and not Mr Sippel directly.[11]

• [64] I found Ms Golding's recall of specific dates less reliable, with Dr Relan also having observed that she "was somewhat of a vague historian".[12] Ultimately, while those things were noted, they did not derail the overall credibility of the witness and the plausibility of her account.

• [65] Dr Pankaj Relan is a Consultant Psychiatrist. The Independent Medico-Legal Report prepared by Dr Relan following his examination of Ms Golding on 2 January 2019 was affirmed as his Evidence-in-Chief.[13] As is typical for expert witnesses in this jurisdiction, Dr Relan gave his evidence by telephone.

• [66] Dr Relan's report was also a useful touchstone to compare Ms Golding's accounts of incidents she gave to him in January 2019, with her Hearing evidence. There were some inconsistencies between these accounts, such as Dr Relan's report that Ms Golding "...has not been involved in any relationships" since divorcing her ex-husband in December 2017.[14] In light of both her and Mr Sippel's evidence at the Hearing about Ms Golding's relationship status, the information she had earlier provided to Dr Relan cannot be true on that particular point.

• [67] Mr Sippel was in the difficult position of being self-represented in this matter. His demeanour was calm, measured and courteous throughout the proceedings.

• [68] Mr Sippel seemed to be well prepared for the Hearing, although I note that he had already experienced the criminal proceeding in February 2020. Mr Sippel had no doubt been fully immersed in, and absorbed by, the task of responding to these allegations since well before then.

• [69] Some synergy is apparent between the line of questioning of Ms Golding adopted by Mr Tony Glynn QC earlier representing Mr Sippel in the District Court matter and the questions asked by Mr Sippel in these proceedings. Although understandable, that was somewhat unfortunate due to the quite different legal questions to be determined at this Hearing. While both Mr Sippel's Statement of Facts and Contentions and his cross-examination of Ms Golding invited me to view the case through the prism of a "lifestyle" construct, I was not of a mind to do so. The ventilation of issues such as whether or not Ms Golding had a penchant for gambling and cosmetic procedures, her choice of work attire and whether she sometimes danced along to the radio, were not given any weight as they were simply not relevant to the questions to be decided at Hearing.

• [70] With respect to Mr Sippel's own Evidence-in-Chief, he chose to read in a prepared statement that bore close resemblance to his filed Statement of Facts and Contentions. As a self-represented litigant, no objection was made to that approach.

• [71] My impression was that Mr Sippel was evasive in his responses to questions about the physical incidents alleged.

• [72] Throughout the proceeding, Mr Sippel asserted that Ms Golding herself initiated the various physical incidents, reflective of their mutual "banter".[15]

• [73] Mr Sippel's testimony that the text message exchange was "banter" revealed a failure to make sensible concessions where appropriate.[16]

• [74] Ms Golding made numerous allegations about Mr Sippel's conduct towards her, that she claimed constituted sexual harassment, direct discrimination and victimisation.[17] In the interests of simplicity, I will address each of her allegations below.

• [75] Ms Golding stated that she started work at the laundromat in January 2017,[18] but that she first met Mr Sippel in September 2016 behind his shop.

• [76] Her evidence was that Mr Sippel had said to her "I want to fuck you" at their first meeting but that she had thought he must have been joking.[19]

• [77] Mr Sippel concurred that Ms Golding had approached him on several occasions looking for work from September 2016. The two differed in their recollections of her actual start date.

• [78] Mr Sippel said that both she and one of her friends actually commenced work at the laundromat in June 2017, some months later. He specifically recalled the timing of workflow associated with a sporting carnival and music festival.[20]

• [79] In light of those details, I prefer Mr Sippel's account of the commencement date and find it more probable.

• [80] Mr Sippel vehemently denied saying "I want to fuck you" to Ms Golding when they first met.

• [81] Indeed, Ms Golding's recount to Dr Relan seemed to also support Mr Sippel's recall, as the report stated that "...over time Ian started to proposition her and make comments of a sexual nature."[21] The choice of the words "over time" simply does not align with Ms Golding's testimony at the Hearing.

• [82] Dr Relan's report further states "She noted that from early on she trusted her supervisor and she would discuss with him about her physical health issues as well as family difficulties that she had been facing in context of the domestic violence from her ex-husband."[22] It would be unusual to trust someone and openly discuss personal problems with them in the first meeting scenario as described by Ms Golding at the Hearing.

• [83] As Dr Relan's report was prepared on the basis of what Ms Golding had told him in the examination on 2 January 2019, I prefer the evidence of that more contemporaneous account.

• [84] While Mr Sippel acknowledged that he said those words to Ms Golding at some time, I accept that he did not do so on the occasion of their first meeting.[23] It does not ring true that Ms Golding actively sought (and ultimately accepted) work with Mr Sippel, if he had said this to her prior to her commencement at the laundromat.

• [85] Ms Golding stated that Mr Sippel touched her bottom with his hands and that he also did this to other female employees. She says this occurred on numerous occasions, from January 2017 onwards.

• [86] When Ms Golding objected to the conduct, she asserts that Mr Sippel "...laughed and said words to the effect of, 'La La La La'." [24]

• [87] Mr Sippel's recollection differed. He stated that "When folding over tables (Ms Golding) would often put her backside out as I was about to walk past (due to limited space of thorough fare) this would lead to physical contact. It became a game where I would say if you don't move it I will slap it."[25]

• [88] Both Ms Golding and Mr Sippel each invoke a different assumed view of other female colleagues.[26] I have not attributed any weight to the different evidence as to what other female employees may have seen, experienced or thought about this. As they were not called as witnesses in this matter, I cannot know whose assertion is correct on this basis alone.

• [89] In the absence of any other witnesses called to corroborate whether it was Mr Sippel who touched Ms Golding's bottom and laughed off her protestations - or whether it was instead Ms Golding who stuck her bottom out when Mr Sippel passed her - I rely on the relative credibility of the two witnesses' evidence and the plausibility of their accounts.

• [90] Dr Relan's report seemed to support Ms Golding's account, where it stated that "She noted that over time Ian started to proposition her and make comments of sexual nature. Also he would often show gestures that he had been interested in her. She noted that over time these gestures and his advances increased."[27] Although I have acknowledged at [83] above that the medical report could only be prepared on the basis of what Ms Golding told Dr Relan, this recount aligns with both her Statement of Facts and Contentions, her testimony in the separate criminal proceedings and her evidence before me.

• [91] I am also mindful that in the course of just 14 months, the interactions between Ms Golding and Mr Sippel escalated to the point where Ms Golding had expressed her discomfort with the direct genital touching that had already occurred and firmly rejected Mr Sippel's repeated transactional propositions for sex. He does not query any of her statements in the text message exchange.[28] Had Ms Golding's statements not been true, one may have expected him to query it in the reply text.[29] Whilst the text message exchange catalogues the most recent and serious of the incidents, it is more plausible than not that Mr Sippel had to start somewhere to reach it.

• [92] His minimisation of the text messages was that they were mere "banter". His categorisation of the events at the folding tables was markedly similar; nothing more than horseplay. Mr Sippel's inability to recognise the inappropriateness of the overtly transactional texts weighs in favour of a finding that he also mischaracterised the interactions at the folding tables.

• [93] As I have earlier found at [79] that Ms Golding started work at the laundromat in June 2017 (and not January), I accept that Mr Sippel began touching her bottom and laughing off her protestations from that time.

• [94] Towards the end of 2017, Ms Golding said that Mr Sippel began to ask her to massage him in exchange for $50, telling her "I want to fuck you".

• [95] Ms Golding's evidence was that Mr Sippel also offered to pay for her to undertake a massage course and give her $500. She understood Mr Sippel's offer was contingent upon her having sex with him and so declined the proposition.[30]

• [96] However, Ms Golding recalled the incident differently at the Hearing:[31]

Ms Golding On May 2018, Bosing said "I have a bad back," and I said, "Bosing, I will massage you. You have to pay me $50." I said, "I am studying massage therapy." "I do not need - I won't give you $50, but I'll give you $500" - but - but he wants to have sex with me.

Mr O'Brien What were the words he used when he said that?

Ms Golding Yeah, that massage, because I know how to massage. The thing is I have no certificate [indistinct] I can do massage, you know? He - he - maybe he thinking about - about happy ending. I don't like it. I don't want like that. But he wanted sex. I don't want it. I - I ignore it, about that word.

• [97] Mr Sippel's account was that:[32]

At times due to heavy lifting I would stretch my back. The Complainant would often comment "do you have a sore back, I can give you good massage". The Complainant would frequently ask me could I organise any additional employment with some of the Thai massage business's we serviced. I contacted 2 business's however because The Complainant was not properly trained that would not consider her for employment. The Complainant repeatedly requested could I pay for her to have a massage course. I declined. The Complainant would then say then I can give you a "really good Massage"

• [98] In weighing which version of events to believe, I accept that Ms Golding first offered to massage Mr Sippel for $50, given that is consistent with both his statement and her oral evidence. However, I am persuaded that Mr Sippel took her suggestion further and did offer Ms Golding $500 on those terms.

• [99] The foundationally transactional nature of Mr Sippel's propositions evinces a clear mindset. That mindset is entirely consistent with my finding of fact on this point and the unequivocal evidence of the text messages.[33]

• [100] Ms Golding stated that Mr Sippel offered her his lawn mower in exchange for sex in March 2018.

• [101] Ms Golding relayed that she had requested to borrow Mr Sippel's lawn mower and that he had "...replied with words to the effect of, "I'll give you my mower for free, it is worth $500.00, if you give me sex."[34] She declined the transaction proposed.

• [102] At Hearing, Ms Golding's evidence was:[35]

I told Mr Sippel that my - the lawn mower that my husband gave me was damaged and I cannot afford to buy another lawn mower. So I asked if I could borrow a lawn mower from him, and he said, "I have four lawn mowers. I have one lawn mower to give you worth 500, but I want to have sex." I said, "No. I cannot - I cannot afford to have sex, because I'm not a slag to go to use and I'm not a slut" - sorry - "to go to you to work. I'm not like that."

• [103] Mr Sippel disputed this account of the incident, instead he claimed that:[36]

In late April 2018 The Complainant asked me if I would be able to bring my lawn mower around to assist with the clean-up of the yard. This was the 3rd time The Complainant had requested my assistance over the previous 6 months, I declined.

• [104] Faced with diametrically opposed accounts of 'who said what to whom' in this incident, I have considered the parties' clear intentions and respective appetites, as demonstrated in the text message exchange;[37] together with my observations regarding the credibility and demeanour of the two witnesses.[38]

• [105] Ms Golding recalled the lawn mower event occurred in March 2018, while Mr Sippel's alternative testimony was that it occurred in late April 2018. Ms Golding had told Dr Relan that Mr Sippel began "...seeking her out to have sex with him" in April - May 2018.[39]

• [106] I note also the repeated figure of $500. In Ms Golding's evidence, this figure is once again attributed to Mr Sippel - as a consistent suggestion of what may be an appropriate payment for such services.

• [107] In light of all of the above, I find it more probable than not that the lawn mower incident occurred in late April 2018[40] and in that way Ms Golding said it did.

• [108] Ms Golding stated that Mr Sippel led her toward the rear of the laundromat. She contended that he rubbed her leg and groin area through her clothes, before grabbing her hand and pushing it down the front of his shorts onto his erect penis.[41] Ms Golding's evidence was that Mr Sippel then wrapped her hand around his penis, holding his hand over hers and using it to then masturbate himself.[42]

• [109] Ms Golding stated that she "...was afraid and said words to the effect of, 'I have to go' to which [Mr Sippel] replied, 'wait, can I touch yours' before putting his right hand down [her] pants and into contact with her vagina."[43]

• [110] The timely arrival of a delivery of dirty clothes enabled her to extract herself from Mr Sippel.[44]

• [111] Ms Golding's evidence was that she recalled the date clearly, as it was her birthday.

• [112] Mr Sippel's evidence was instead that:[45]

On leaving on one occasion The Complainant put her arms around me and hugged me as she often did, The Complainant then grabbed my penis through my shorts. I said what do you want, The Complainant replied along the lines of "one day but not today".

• [113] I prefer Ms Golding's version of this event. Her evidence at the Hearing both aligned with her earlier statement to Dr Relan[46] and was broadly consistent with her testimony in the separate criminal proceeding.[47] There is also the clarity provided by the text messages between the pair on 8 August 2018 that directly speak to Mr Sippel touching Ms Golding's vagina and she holding his penis. Despite Mr Sippel's prolific text exchanges over those days, he did not ask her what she meant by those texts.

• [114] Ms Golding had a boyfriend and was herself approximately 20 years younger than Mr Sippel. She had a job at the laundromat that she could not afford to jeopardise, in order to provide for her children. It seems unlikely that Ms Golding would potentially risk all that by grabbing her employer's penis, in a random act and on her own initiative. All of which would have occurred after she had repeatedly rejected his propositions, as I have found to be the case. It cannot be true.

• [115] I find that the most probable version of events, that best fits the evidence and other facts I have found, is Ms Golding's account.

• [116] Subsequent to the genital contact incident, Ms Golding reported that Mr Sippel's demands became more frequent. He increased her working hours and now regularly asked her for sex.

• [117] When Ms Golding refused his proposition, Mr Sippel would eject her from the laundromat. Desperate to earn an income, Ms Golding "...would then need to return to the shop and beg for more work."[48]

• [118] At the Hearing, Ms Golding explained this pattern of withholding paid work:

He was giving me - at first, he was giving me successive days to work, and when I could not give him sex, he gave me a hard time to go to work.

• [119] Mr Sippel does not address this particular allegation in his Statement of Facts and Contentions. When questioned at the Hearing about this, Mr Sippel denied that he stopped offering Ms Golding work at times because she refused to have sex with him. Rather he stated that "There might have been a couple of times when there was down time" and that it was only "On a seasonal basis, if there was no work required."[49]

• [120] In considering the evidence to determine whether or not, on the balance of probabilities, Ms Golding's claim is likely to be true, I again return to the text message exchange.[50] In a similar pattern to this particular allegation, the texts outlined that Ms Golding had asked Mr Sippel for work, he suggested that she was not reliable and she asked for a chance. He then demanded "Give me your pussy". Ms Golding had attempted to side-step his advance by her suggestion, hours later, that he was joking, to which Mr Sippel further elaborated his intentions and stated that Ms Golding should "...give (him) incentive to give you job". Mr Sippel pursued Ms Golding for a response to his proposition in the days that followed. By his own admission, he later gave an available job to someone else.[51]

• [121] The evidence of the text message exchange demonstrated Mr Sippel had withheld work from Ms Golding when she rebuffed his advances. Therefore, I find it more likely than not that it also occurred on this occasion.

• [122] Ms Golding recounts another occasion in which Mr Sippel touched "...his penis through his pants whilst leering at [Ms Golding]. He then pushed his tongue inside of his cheek making it bulge..."[52].

• [123] Ms Golding's evidence was that:[53]

He was passing me by and holding his penis, and he put his tongue inside his cheek, producing a bulge on the outside right cheek. He said that every time he sees me, his penis gets stiff, and that's how he showed his expression...

...What I understand is he wanted to have sex with me, because he always say, "When do you want to fuck me?"

• [124] Mr Sippel does not address this particular allegation in his Statement of Facts and Contentions.

• [125] When questioned at the Hearing, Mr Sippel admitted saying things such as "You make me horny" to Ms Golding and had explained this as typical 'banter' at the laundromat.[54]

• [126] Ms Golding's filed material[55] and her evidence at the Hearing appears to be broadly consistent with her recount to Dr Relan; although I note that this specific incident was not recorded. His report stated "Also (Mr Sippel) would often show gestures that he had been interested in her. She noted that over time these gestures and his advances increased."[56]

• [127] The clear evidence of the text message exchange is that there had been direct genital touching between the pair. As a prelude to this later activity, I find it more probable that this incident occurred as Ms Golding described.

• [128] Around 17 May 2018, Ms Golding stated that she changed her clothes before leaving to collect her boyfriend from the airport. Mr Sippel "...said words to the effect of, "you're sexy" and began to grab and touch the inside of her upper leg. As [Ms Golding] moved away from him, [Mr Sippel] said words to the effect of, "one day, I'm going to fuck you."[57]

• [129] Mr Sippel does not address this particular allegation in his Statement of Facts and Contentions.

• [130] Ms Golding's evidence was that Mr Sippel said "I want to fuck you", as he touched the inside of her upper leg.[58]

• [131] When questioned at the Hearing about this, Mr Sippel admitted to making such statements to Ms Golding, though he explained this as typical 'banter' between them.[59] He did not admit to touching the inside of her leg.

• [132] Ms Golding's filed material[60] and her evidence at the Hearing[61] appears to be broadly consistent with her earlier recount to Dr Relan as outlined in paragraph [126] above.

• [133] For the same reasons explained at paragraphs [126] - [127] above, on the balance of probabilities, I find it more probable that this incident occurred as Ms Golding described.

• [134] Around early July 2018, Ms Golding stated she was hanging clothes on the line when Mr Sippel asked if he could touch her breast. He reached down the top of Ms Golding's dress to touch her left breast.[62]

• [135] Ms Golding's account of this incident varied in her oral testimony, however. This time, Ms Golding states she was wearing a jumper and that the act occurred in the laundry.[63]

• [136] Mr Sippel did not address this allegation in his Statement of Facts and Contentions. Neither did his evidence at the Hearing specifically refer to it.

• [137] The variations in Ms Golding's account of this event means I cannot be satisfied to the required standard that this incident occurred as she said it did.

• [138] On 29 July 2018, Ms Golding alleges that Mr Sippel texted "Hey r u pregnant?"[64]

• [139] Mr Sippel did not respond to this particular allegation in his Statement of Facts and Contentions.

• [140] This allegation was not pressed in evidence at the Hearing.

• [141] In considering the different accounts of Ms Golding and Mr Sippel, I again note the proximity of this particular allegation to the text message series between 3 - 9 August 2018. The evidence of those text messages show that Mr Sippel pursued Ms Golding to reply to his questions. It therefore seems unlikely that Mr Sippel would ask a question and not insist that Ms Golding answer it, given his very different approach only a few days later. Further, I find it curious that while Ms Golding produced screen shots of the text message exchange with Mr Sippel between 3 - 9 August 2018,[65] she did not provide such evidence to support this claim.

• [142] For those reasons, I am not satisfied to the required standard that Ms Golding's version of this event is correct.

• [143] Between 3 - 9 August 2018, a series of text messages were exchanged between Ms Golding and Mr Sippel.[66]

• [144] Mr Sippel's escalating and persistent pressure, Ms Golding's rejection of the advances and entreaty for work, his overtly transactional proposal and later admission of conduct, were all well demonstrated in this text exchange.

• [145] Whilst two very different accounts of various other allegations were provided by Ms Golding and Mr Sippel at the Hearing, there was no other cogent explanation for Mr Sippel's transactional proposition contained in the text message exchange. Although Mr Sippel claimed it was "just banter" and that he said such things to Ms Golding in the shop "all the time", the respective positions of the parties was apparent.

• [146] As Ms Golding's Counsel observed,[67] there was only one thing the text message "as i can I have ur pussy and in turn give u job" could mean. Notwithstanding the length of time Mr Sippel had to consider any other interpretation of the words, no plausible alternative was proffered.

• [147] The significance of this piece of evidence warrants its reproduction in full:[68]

Ms Golding: Bossing can I do the work of mommy Charmaine cleaning Saturday

Ms Golding: She told me someone working to you already

Mr Sippel: I going by what Charmy say She not think u reliable She bring othe lady to work with

Mr Sippel: Maybe you give me incentive to give u job

Mr Sippel: as i can I have ur pussy and in turn give u job

Ms Golding: Are Charmaine wants give her self not me

Mr Sippel: I may have a proper job for u on Tuesday and Thursday 12 30 to 5 30 every week But u have to commit to No fucking around You must turn up I behave myself and leave u alone But u have to be reliable and work I let u know on Sat

• [148] Ultimately, Mr Sippel decided to give the available 'proper job' to someone else.[69]

• [149] I find that Ms Golding's account is most likely to be true. I do not accept Mr Sippel's suggestion that this text message exchange constituted 'banter' that was mutually enjoyed and entered into. Ms Golding's replies indicated otherwise.

• [150] Following the text messages and numerous incidents at work, Ms Golding stated that she reported her situation to the police in August 2020.[70]

• [151] Ms Golding said police advised her "...not to return to the workplace, due to fears for her safety."[71]

• [152] The status of her employment is that she has not returned to the workplace (and it has now ceased operation) but remains technically employed by the (laundromat) and is presently in receipt of workers' compensation benefits from WorkCover Queensland.

• [153] Mr Sippel offered a different account of Ms Golding's departure. He stated that she became unreliable and had caused tension with other staff, especially Ms Gunhold. Whilst Mr Sippel said that he "...potentially did have a job coming up that may have suited her skill level and would be consistent work for her", he instead decided to give the job to another former employee who had contacted him for work.[72]

• [154] Against the backdrop of evidence presented, and with respect to the various findings of fact explained above, I believe it is most probable that Mr Sippel understood that his demands for sex in exchange for a job were rejected by Ms Golding.[73] As he had done in the past,[74] Mr Sippel then punished her by withholding the opportunity for paid work. Shortly thereafter, Ms Golding sought police assistance with her complaint. The police advised her not to return to the workplace. She then lodged a successful claim for workers' compensation.

• [155] Of the 12 allegations made by Ms Golding, I have found nine of those to have broadly occurred as she claimed. For ease of reference, these are:

• Bottom touching
• Massage requests (in part)
• The lawn mower
• Genital touching
• Working hours
• Cheek bulge
• Inside leg touching
• Text messages
• Cessation of work at the laundromat

• [156] I have not found in Ms Golding's favour on three of the allegations. That is, the account of her first meeting with Mr Sippel, the allegation of breast touching and Mr Sippel's later text inquiry as to whether she was pregnant.

• [157] This Decision now turns to the consideration of the above nine substantiated allegations, with respect to the Act criteria prescribed for Ms Golding's claims of sexual harassment, direct discrimination and victimisation.

• [158] Determining this question requires me to first establish the facts of the incidents alleged.[75] Put another way, has Ms Golding proved - on the balance of probabilities - that the incidents actually occurred the way she claims they did? If so proven, do the particular incidents constitute sexual harassment? If so, was it Mr Sippel's intention to offend, humiliate or intimidate Ms Golding? Alternatively, would a reasonable person have anticipated the possibility that Ms Golding would be offended, humiliated or intimidated by it, in the circumstances?

• [159] This test includes consideration of "the circumstances", including indices such as sex, age, relationship between the parties, and "any other circumstance".[76]

• [160] In opening Ms Golding's case, Mr O'Brien argued that "... power imbalance goes beyond the ordinary power imbalance that exists between employer and employee. Of particular note in that regard, you will hear evidence, I expect, that the applicant had previously been a victim of domestic violence, and that the second respondent was aware of that. I expect you'll hear evidence that she had sole care of her four school-aged children at the relevant time, and that the second respondent was aware of that."[77] Further, Ms Golding is significantly younger than Mr Sippel by some twenty years, English is her second language and she was casually employed at the relevant time.

• [161] This combination of factors have informed my consideration of "the circumstances" in this case.

• [162] I have found that Mr Sippel was touching Ms Golding's bottom repeatedly and laughing off her protestations from the time she commenced at the laundromat in June 2017.

• [163] This action is consistent with "an unsolicited act of physical intimacy", under the Act.[78]

• [164] I have accepted Ms Golding's account that she objected to the bottom touching conduct at the time that it occurred - and that Mr Sippel laughed off her protestations and said words to the effect of "La La La La."

• [165] In light of Ms Golding's contemporaneous and verbal objections to the conduct, it is clear that she did not welcome it. That Mr Sippel persisted with the conduct regardless demonstrates an intention to offend. In the alternate, I believe a reasonable person would have anticipated the possibility that Ms Golding would be offended, humiliated or intimidated by it, in the circumstances.[79]

• [166] For those reasons, this conduct meets the test for sexual harassment under the Act.

• [167] I have found that Ms Golding offered to massage Mr Sippel in exchange for $50. Further, I have accepted that Mr Sippel then proposed to pay her $500, contingent upon her agreement to have sex with him.

• [168] This action is consistent with "an unsolicited demand or request...for sexual favours" and "a remark with sexual connotations relating to the other person, under the Act.[80]

• [169] I have accepted that Ms Golding declined Mr Sippel's propositions.

• [170] In light of Ms Golding's contemporaneous and verbal rejection of the conduct, it is clear that she did not welcome it. That Mr Sippel persisted with the conduct regardless demonstrates an intention to offend. In the alternate, I believe a reasonable person would have anticipated the possibility that Ms Golding would be offended, humiliated or intimidated by it, in the circumstances.[81]

• [171] For those reasons, this conduct meets the test for sexual harassment under the Act.

• [172] I have earlier accepted that Mr Sippel offered Ms Golding his lawn mower in exchange for sex in April 2018.

• [173] This action is consistent with "an unsolicited demand or request...for sexual favours", under the Act.[82]

• [174] Ms Golding declined the transaction proposed.

• [175] In light of Ms Golding's contemporaneous and verbal refusal of the proposition, it is clear that she did not welcome it. That Mr Sippel made this suggestion to Ms Golding, despite her earlier rebuff of both his bottom touching conduct and massage transaction, demonstrates an intention to offend. In the alternate, I believe a reasonable person would have anticipated the possibility that Ms Golding would be offended, humiliated or intimidated by it, in the circumstances.

• [176] For those reasons, this conduct meets the test for sexual harassment under the Act.

• [177] I have found that Mr Sippel rubbed Ms Golding's leg and groin area through her clothes, before grabbing her hand and pushing it down the front of his shorts onto his erect penis. He then wrapped her hand around his penis, held his hand over hers and used it to then masturbate himself.

• [178] I have also accepted Ms Golding's account that when she tried to extract herself from the situation and said words to the effect of "I have to go", Mr Sippel replied "wait, can I touch yours" before putting his hand down her pants and into contact with her vagina.

• [179] This action is consistent with "an unsolicited act of physical intimacy" and "an unsolicited demand or request...for sexual favours", under the Act.[83]

• [180] In light of Ms Golding's contemporaneous and verbal attempts to halt the conduct, it is clear that she did not welcome it. Against the backdrop of his persistent advances and her constant refusals, Mr Sippel demonstrated an intention to offend, humiliate or intimidate Ms Golding. In the alternate, I believe a reasonable person would have anticipated the possibility that Ms Golding would be offended, humiliated or intimidated by it, in the circumstances.[84]

• [181] For those reasons, this conduct meets the test for sexual harassment under the Act.

• [182] I have found that Mr Sippel's demands became more frequent, subsequent to the direct genital contact incident. He increased Ms Golding's working hours and now regularly asked her for sex.

• [183] This action is consistent with "an unsolicited demand or request...for sexual favours", under the Act.

• [184] I have also accepted that when Ms Golding refused his proposition, Mr Sippel would eject her from the laundromat. Desperate to earn an income, Ms Golding "...would then need to return to the shop and beg for more work."

• [185] In light of Ms Golding's contemporaneous and verbal refusal of his repeated demands, it is clear that she did not welcome it. That Mr Sippel made this suggestion to Ms Golding, despite her earlier rebuff of his bottom touching conduct, massage proposals and direct genital touching, demonstrates an intention to offend. Further, when considering his reprisal action of denying her opportunity for paid working hours as a result of her refusal of his propositions, I consider an intention to intimidate is also demonstrated. In the alternate, I believe a reasonable person would have anticipated the possibility that Ms Golding would be offended, humiliated or intimidated by it, in the circumstances.

• [186] For those reasons, this conduct meets the test for sexual harassment under the Act.

• [187] I have found that Mr Sippel touched his penis through his pants whilst leering at Ms Golding. He then pushed his tongue inside of his cheek making it bulge. Further, Mr Sippel asked Ms Golding "When do you want to fuck me?"[85]

• [188] This action is consistent with "an unsolicited demand or request...for sexual favours" and "any other unwelcome conduct of a sexual nature in relation to the other person", under the Act.

• [189] In light of Ms Golding's consistent rebuff of similar conduct over an extended period, it is clear that she did not welcome it. That Mr Sippel persisted with the conduct regardless demonstrates an intention to offend. In the alternate, I believe a reasonable person would have anticipated the possibility that Ms Golding would be offended, humiliated or intimidated by it, in the circumstances.

• [190] For those reasons, this conduct meets the test for sexual harassment under the Act.

• [191] I have found that Mr Sippel said words to the effect of, "you're sexy" and "I want to fuck you" to Ms Golding as he grabbed and touched the inside of her upper leg around 17 May 2018.

• [192] This action is consistent with "an unsolicited act of physical intimacy" and "an unsolicited demand or request...for sexual favours", under the Act.

• [193] In light of Ms Golding's consistent rebuff of similar conduct over an extended period, it is clear that she did not welcome it. That Mr Sippel persisted with the conduct, saying words to the effect of "one day I'm going to fuck you" even after Ms Golding had physically moved away from him, demonstrates an intention to offend. In the alternate, I believe a reasonable person would have anticipated the possibility that Ms Golding would be offended, humiliated or intimidated by it, in the circumstances.

• [194] For those reasons, this conduct meets the test for sexual harassment under the Act.

• [195] A series of text messages were exchanged between Ms Golding and Mr Sippel between 3 - 9 August 2018.[86] The written exchange reveals Mr Sippel's escalating pressure, Ms Golding's rejection of the advances and entreaty for work, his overtly transactional proposal and later admission of conduct.

• [196] This action is consistent with "an unsolicited demand or request...for sexual favours", under the Act.

• [197] In light of Ms Golding's contemporaneous and verbal refusal of his repeated demands - in writing and over a number of days - it is clear that she did not welcome it. That Mr Sippel persisted with the conduct, demonstrates an intention to intimidate. In the alternate, I believe a reasonable person would have anticipated the possibility that Ms Golding would be offended, humiliated or intimidated by it, in the circumstances.

• [198] For those reasons, this conduct meets the test for sexual harassment under the Act.

• [199] While I have accepted Ms Golding's account of the circumstances leading to the cessation of her work at the laundromat, this conduct does not meet the text for sexual harassment under the Act.

b) Was Ms Golding directly discriminated against?

• [200] It is not in dispute between the parties that Ms Golding has the attribute of 'being female'.

(ii) Was Ms Golding treated, or proposed to be treated, less favourably than another person without the attribute of 'sex', in circumstances that are the same or not materially different?

• [201] Under s 10 of the Act, Ms Golding is required to identify an appropriate real or hypothetical comparator without the attribute of sex in circumstances that are otherwise 'the same or not materially different'.

• [202] In considering 'circumstances that are the same or not materially different', it has been said that: [87]

...the test for direct discrimination requires a comparison with a person without the particular disability (or 'attribute' more broadly in this case) but otherwise in the same position in all material respects as the complainant.

• [203] The Complainant's Statement of Facts and Contentions posits a hypothetical comparator:[88]

The Complainant contends that the comparator is a person:

a. in their late thirties and having a young family;

b. having migrated to Australia and having difficulty with the English language; and

• [204] The Complainant's written closing submissions described a hypothetical comparator of a person:[89]

• [205] In the absence of an appropriate real comparator, my consideration will proceed on the basis of a hypothetical one.

• [206] The relevant attribute is Ms Golding's 'sex'. Therefore, incorporating the circumstances that are the same or not materially different, the hypothetical comparator is:

1. employed by the laundromat, doing laundering, folding and cleaning work;

1. having migrated to Australia from the Philippines, with some limitations in their use of the English language;

vii. who had been subject of domestic violence in their previous marriage.

• [207] The question then becomes whether Mr Sippel would have treated the hypothetical comparator differently than Ms Golding, and then whether any difference in treatment can properly be categorised as less favourable.

• [208] The treatment said to be different was Mr Sippel's escalating series of unwelcome sexual advances, both verbal and physical, towards Ms Golding. The eight accepted claims of sexual harassment cover the entire range envisaged under the Act at s 119 (a) - (d). Specifically, these are:

• Bottom touching
• Massage requests
• The lawn mower
• Genital touching
• Working hours
• Cheek bulge
• Inside leg touching
• Text messages

• [209] Mr Sippel's own evidence was that he was heterosexual and would not have engaged in such 'banter' with a male employee. In cross examination, Mr Sippel agreed that:[90]

Mr O'Brien I see. Would you tell a man at work that you wanted to fuck him?

• [210] By his own admission, Mr Sippel would not have sexually harassed a male employee in circumstances that are the same or not materially different. It would be quite inexplicable for a heterosexual male to engage in persistent sexual conduct with the hypothetical comparator - and I find that Mr Sippel would not have done so.

• [211] I conclude that Mr Sippel treated Ms Golding differently than how he would have treated the hypothetical comparator.

• [212] The meaning of less favourable treatment was considered in Haines v Leves:[91]

The words "less favourably" ... requires a comparison of the treatment in the actual and in an hypothesised case... A "detriment" concept of discrimination has hitherto been adopted... The motives, reasons or suggested justifications of the detriment are irrelevant, if it can be shown that there is differentiation of treatment, which results in detriment to the person affected.

• [213] The different treatment was less favourable to Ms Golding. It is sufficient to say that sexual harassment is manifestly detrimental to the recipient, because it necessarily involves conduct that is unwelcome.

(iii) Was Ms Golding's sex a substantial reason for the less favourable treatment?

• [214] The reason for that less favourable treatment was quite clearly Ms Golding's sex. In accordance with Mr Sippel's admissions that he would not have engaged in such 'banter' with a male employee, I conclude that Ms Golding would not have been subjected to sexual harassment from Mr Sippel if she were a male.

• [215] As such, I find that Ms Golding was directly discriminated against by Mr Sippel on the basis of her sex.

• [216] While Ms Golding certainly had cause to feel 'victimised' by what occurred at the laundromat, I am not satisfied to the required standard that what happened to her constituted 'victimisation' within the precise meaning of s 130 of the Act. My reasoning lies in the chronology of events: the text exchange, Mr Sippel's suggestion that he may have a 'proper job' for Ms Golding, Ms Golding's rejection of those advances, Mr Sippel's decision to give that job to someone else, and finally Ms Golding's complaint to police and their advice not to return to the workplace.

• [217] I believe that Mr Sippel withheld paid work from Ms Golding due to her rejection of his advances, not because he thought that she had made, or intended to make, allegations or commence or be involved in proceedings against him. Mr Sippel supposed he could deny Ms Golding paid employment and would hear nothing more about it. That specific conduct does not constitute victimisation within the meaning of the Act. The Act at s 130 provides that victimisation occurs when a Respondent does, or threatens to do, a detrimental act to the Complainant because the Complainant refused to contravene the Act, or because the Complainant is involved in some capacity in complaining about the Respondent's behaviour under the Act. That particular claim is not borne out on the facts of this case.

• [218] As such, I find that victimisation did not occur.

• [219] The Commission is empowered, by s 209 of the Act, to make a variety of orders, both monetary and non-monetary, if a complaint is proven.

• [220] In the Statement of Facts and Contentions, the Complainant sought an order that the contravening conduct not continue, damages, a private apology, and that the Respondent implement programs to eliminate unlawful discrimination and sexual harassment.

• [221] In closing written submissions, it appears that only the remedy of damages was pressed. In any event, I am mindful that the Respondent's business is no longer operating. That renders orders regarding the implementation of programs, and cessation of the contravening conduct, somewhat nugatory in any event. I am also not minded to order that the Respondent provide a private apology, in circumstances where such an apology may be contrived.

• [222] The matter of discerning an appropriate award of damages in a discrimination matter is not straightforward. The Act at s 209(1)(b) provides the Commission the power to award compensation for loss or damage caused by a contravention. That involves several considerations.

• [223] First, a contravention must have occurred. Second, it must be evidenced that the Complainant has actually suffered loss or damage. Third, that loss or damage must have been caused by the contravention. It follows that, where a Complainant has evidenced loss but has not sufficiently evidenced that such loss was caused by the contravention, that loss is not compensable. Similarly, where a contravention has occurred, but the Complainant has not sufficiently evidenced any loss or damage arising from it, there is no basis for financial compensation. In such an instance, non-monetary remedies may be more appropriate.

• [224] Several heads of damages are potentially accessible to a Complainant under the Act. Special damages for economic loss, and general damages for non-economic loss such as the factors set out in s 209(5), certainly fall within the ambit of compensation for loss or damages caused by the contravention.

• [225] The Complainant has sought compensation for both economic and non-economic loss, and has also sought exemplary damages.

• [226] In closing written submissions, the Complainant refers to the contravening conduct in several cases decided under the Federal and State discrimination Acts, to which I also refer below. However, the Complainant's attention seems to be primarily placed upon the seriousness of the contravening conduct, rather than upon the loss suffered by the Complainant. In closing their submissions about general damages, for example, the Complainant submits:

The Applicant submits that the community would be quite rightly appalled at the conduct of the Second Respondent, and such conduct deserves the significant sanction of an award of damages of not less than $120,000.

• [227] Foundationally, damages are not awarded to punish a Respondent.[92] Rather, they are awarded as compensation for a Complainant's loss; to place a Complainant, insofar as money can, in the position they would have been in but for the act of unlawful discrimination.[93] As is addressed below, the relevance of community standards is with regard to the monetary value attaching to the intangible losses suffered by a Complainant.

• [228] In her Statement of Facts and Contentions, Ms Golding sought "a sum of $100,000 for economic loss". Given that Ms Golding was employed by the Respondent for a relatively short period on a casual basis to undertake laundering work, that figure seems excessive on its face.

• [229] In her closing written submissions, Ms Golding amended that figure to $35,980.10. Her approach in arriving at that figure can be summarised as follows:

• Ms Golding's work for the Respondents was governed by the Dry Cleaning and Laundry Industry Award 2020, and the relevant pre-cursors to that award.

• At the end of her employment with the Respondents, she was regularly working four hours each Tuesday, Thursday and Saturday.

• The rate under that award is $19.77 per hour on weekdays, and $24.71 per hour on Saturdays. As a casual, Ms Golding was also entitled to 25% loading on all hours worked.

• That rate should be applied from 5 August 2018 to date of judgement, summing to 78 weeks to 1 February 2021 as $35,980.10.

• [230] I have accepted that Ms Golding ended her employment with the Respondent because of the sexual harassment she was subjected to. That was a reasonable course, and indeed her evidence was that the police advised her not to return to work. I am therefore satisfied that some economic loss has occurred by virtue of the contravening conduct. In particular, the cessation of Ms Golding's employment occurred on or about 5 August 2018 where, upon her rebuffing Mr Sippel's advances, she no longer undertook work for the Respondents and indeed attended upon the police in the following days.

• [231] The questions are then, what position would Ms Golding have been in but for the contravening conduct, and what amount of money would be appropriate to compensate that loss? Answering those questions requires considering all of the relevant circumstances of the case.

• [232] I have accepted Ms Golding's evidence that, towards the end of her time with the Respondent, she was working three days per week, being two weekdays and Saturday.

• [233] The Complainant submits that the hourly rate should be applied for the entire period spanning 5 August 2018 to date of judgment. I believe there are several issues with that.

• [234] It is foundationally the Complainant's case to prove her entitlement to damages. There is no evidence before me that the business has continued to operate since Ms Golding's departure. It appears to me that the Respondent's business ceased to operate well before the hearing of this matter. At the time of the mention of this matter on 25 June 2020 Mr Sippel reported that the business had been sold in September 2019, closed due to a fire, and had not reopened. It was not in evidence as to precisely when that business closed. At the least, it can be said that it would be inappropriate to include the period since the business closure to now because, irrespective of the contravening conduct, Ms Golding would not have been working for the Respondent during that period since closure.

• [235] Further, Ms Golding was employed on a casual basis. That is a precarious form of employment. A person employed casually may be dismissed without notice or cause, and their employment is often tightly bound to the ebb and flow of the employer's business. In this case, Mr Sippel's evidence was that he brought Ms Golding into the business because of an increase in work related to a sports carnival. From there, he engaged her for somewhat fluctuating numbers of hours per week. She was employed from June 2017 until August 2018; not an extensive period of time but neither was it an insubstantial period.

• [236] In some instances, where a Complainant leaves their employment and takes up another commensurate position immediately, economic loss can be calculated by noting the difference in salary between the positions and setting a reasonable period for which that difference will be compensated. Principles such as remoteness and mitigation would also be relevant. In this case, there was minimal documentary evidence which would allow the Commission to more precisely identify the economic loss suffered.

• [237] It would be unreasonably speculative to find that Ms Golding would have remained employed by the Respondents for an extensive period of several years, had the contravening conduct not occurred. Her work was insecure, subject to fluctuations in hours, and had been going on for only a moderate period. Even so, I am conscious that it is unfortunately common for some persons to remain casually employed for extended durations. I have also borne in mind that Mr Sippel sold his business in September 2019, and that may well have ended or affected Ms Golding's employment. I find that if the sexual harassment had not occurred, the employment arrangement would have continued for a period of 12 months, between 5 August 2018 to 5 August 2019.

• [238] I would also note that the Complainant's submissions regarding economic loss cite the rate of pay in the 2020 Award. In the period between August 2018 and August 2019, there were several iterations of the Award, and the rates of pay applicable to Ms Golding changed over that time, which need to be taken into account.

• [239] I have calculated Ms Golding's economic loss as follows.[94]

• [240] From 5 August 2018 to 19 June 2019 (approximately 45 weeks), Ms Golding would have been covered by the Dry Cleaning and Industry Award 2010, which commenced on 27 July 2018. Under that Award, Ms Golding would have earned $19.19 per weekday hour. For two four-hour shifts, over 45 weeks, Ms Golding would have earned $6,908.40. Ms Golding would have earned $23.99 per Saturday hour. For a four-hour shift, over 45 weeks, Ms Golding would have earned $4,318.20. As such, for the period 5 August 2018 to 19 June 2019, Ms Golding would have earned $11,226.60.

• [241] From 20 June 2019 to 5 August 2019 (approximately six weeks), Ms Golding would have been covered by the Dry Cleaning and Industry Award 2010, which commenced on 20 June 2019. Under that Award, Ms Golding would have earned $19.77 per weekday hour. For two four-hour shifts, for six weeks, Ms Golding would have earned $948.96. Ms Golding would have earned $24.71 per Saturday hour. For a four-hour shift, for six weeks, Ms Golding would have earned $593.04. As such, for the period 20 June 2019 to 5 August 2019, Ms Golding would have earned $1,542.00.

• [242] Because she was employed as a casual, 25% loading also applies under those awards.

• [243] As such, I have determined Ms Golding's economic loss to be $15,960.75. That amount is gross of tax, and so must be subject to the appropriate taxation rate.

• [244] It should be said that there is no calculus or formula whereby factual circumstances may be input and a dollar figure for general damages output. The monetary value of the factors set out in s 209(5) is particularly difficult to assess. Nevertheless, there is a clear value in a consistent and proportionate approach to such awards. Some relevant principles as to the appropriate quantum of damages may be distilled from decisions in other jurisdictions which considered that same issue.

• [245] The Sex Discrimination Act 1984 (Cth) prohibits sexual harassment in employment,[95] in distinctly similar terms to the Act. If satisfied that unlawful discrimination has occurred, the Federal Court and Federal Circuit Court are empowered by the Australian Human Rights Commission Act 1986 (Cth) to make a variety of orders, including "an order requiring a respondent to pay to an applicant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent".[96]

• [246] The wording of 46PO(d) requires the Federal Court to ask itself a similar question as posed by s 209(1)(b) of the Act. In deciding an appropriate award of damages in this case, I am mindful of the range of damages awarded in that jurisdiction and the principles said to underpin those awards. Such decisions are informative and persuasive, though not binding.

• [247] In Richardson v Oracle,[97] the Full Court of the Federal Court considered an award of damages arising from sexual harassment in the workplace. In that case, the Complainant was subjected to a humiliating series of slurs, interposed with sexual advances, from the Respondent. These built into an almost constant barrage of sexual harassment. There were 11 incidents, each said to constitute sexual harassment and together evidencing a pattern of unlawful conduct. The trial judge summarised the allegations in that matter in this way:[98]

Ms Richardson was sexually harassed by Mr Tucker over a period of some months; when she eventually brought her concerns to the attention of her manager she was forced to make a formal complaint against her wishes; Oracle's Human Resources ("HR") staff mishandled the investigation; Ms Richardson was forced to keep working with Mr Tucker during the investigation; when the investigation was over Ms Richardson was demoted (or had her responsibilities reduced) by being withheld from projects in Victoria which would otherwise have been within her sphere of responsibility; to protect her own career Ms Richardson was compelled to seek other employment; she suffered economic loss as a result; she also suffered physical and psychological injury as a result of both Mr Tucker's sexual harassment of her and as a result of the need to change employment, which resulted in a punishing travel schedule that disrupted her personal life and her personal relationships.

• [248] The trial judge described the offending behavior as being "persistent and ultimately callous" and said that:[99]

... A repeated pattern in [these] encounters was behaviour by Mr Tucker consistent with the thesis that he was trying to get the upper hand in his relationship with Ms Richardson. Some of those attempts were at least smutty, some were offensive and some (expressed more privately) involved initiatives representing a more direct interest of a sexual kind. When they occurred in the hearing of others they seemed consistently humiliating.

When the remaining incidents ... are taken into account I am satisfied that Mr Tucker embarked on a systematic course of conduct that is fairly described as sexual harassment within its statutory meaning. Some of the individual remarks and suggestions constituted sexual harassment in their own right. The first incident fell into that category. Overall, the whole course of conduct did also.

It was, I am satisfied, intended at least to demean Ms Richardson and perhaps to humiliate her. Perhaps it was Mr Tucker's way of attempting to get the upper hand in their disagreements, or before their colleagues and representatives of the ANZ Bank. If so, it was an offensive way of doing so, and ultimately cruel ... The explanations he proffered exposed clearly the falsity of his earlier denials to Oracle. They were insufficient to excuse his conduct. They afford no reason to question the elements and essentials of Ms Richardson's complaints against him.

• [249] The trial judge awarded $18,000 for general damages. On appeal, the Full Court found that such an award was within the accepted range of damages, but it was nevertheless manifestly inadequate, and substituted an award of $100,000 for general damages. In arriving at that conclusion, the Full Court made several salient points.

• [250] Kenny J cautioned against slavish compliance to the existing range of damages awarded in similar matters and explained that "it can be dangerous to rely too heavily on such a range in assessing the quantum of damages."[100] Those cautions were made in the context of uplifting the appropriate range, to more accurately reflect awards for similar injuries awarded outside anti-discrimination matters, in combination with an acknowledgement of prevailing community expectations.

• [251] It was noted that an award of damages under s 46PO(4)(d) is to compensate for the injury suffered by the person harassed, and that in making such an award it is necessary to consider the general standards prevailing in the community.

• [252] Her Honour then went on to explain that other awards of general damages for injury of the kind suffered by the Complainant in that case may provide some guidance as to what other courts have discerned as proper compensation for such an injury, according to those community standards. In particular, her Honour noted that cases in the field of personal injury may be particularly useful because the object of an award of damages for non-pecuniary loss in such cases is much the same as an award of damages under the s 46PO(4)(d).

• [253] In support of that point, her Honour observed that in O'Brien v Dunsdon (1965) 39 ALJR 78 it was said:[101] (emphasis added)

Each case must be considered in the light of its own facts and an assessment made of the amount which can fairly be regarded as reasonable compensation for the injuries and disabilities which a plaintiff has sustained. It is true, as has been observed on other occasions, that it is impossible precisely to translate pain and suffering and the loss of enjoyment of life into money values. But, nevertheless, some attempt must be made to assess a reasonable sum, remembering, whilst attempting to do so, that it is not possible by payment of an amount of compensation to effect a restitutio in integrum and that the assessment should be made having regard, as far as possible, to the general standards prevailing in the community.

• [254] Her Honour went on to consider several cases of workplace bullying and harassment where general damages were awarded, to indicate that such awards in contemporary decisions place a significant value on the loss of enjoyment of life and the experience of pain and suffering.[102] In concluding that point, her Honour observed that awards for loss of enjoyment of life outside the anti-discrimination field had previously, and inexplicably, far outstripped awards within it.

• [255] That proposition finds support in the decision of Tan v Xenos (No 3) where Harbison J explained: [103]

In my view, there should not be a perception that awards of damages in this jurisdiction should be set at some lower rate than awards for comparable cases in the Courts. The purpose of the award of damages is to attempt to measure, in monetary terms, the hurt that has been done to the Complainant by the Respondent's act of harassment. My approach should mirror the approach that would be taken if this case were to be heard in a Court, instead of a Tribunal.

• [256] I would also note that the Full Court agreed with the primary trial judge's approach, in that tortious principles may inform, but not define or supersede, how the statutory test is to be applied in assessing damages.[104]

• [257] The conclusion of the Full Court was that the previous range of awards for general damages in anti-discrimination matters was manifestly inadequate. It follows that decisions prior to Richardson are of limited assistance in determining the appropriate range of general damages.

• [258] In Hill v Hughes,[105] his Honour Judge Vasta considered a sexual harassment matter brought under the Sex Discrimination Act 1984 (Cth). There, the approach espoused in Richardson was followed. In brief, the matter involved "a very grave example of sexual harassment",[106] which involved significant non-financial losses being incurred. An award of general damages in the amount of $120,000 was made to reflect those very significant losses.

• [259] On appeal, that award was upheld by the Full Court, with Perram J finding: [107]

It is convenient to observe that the Appellant's misconduct has occasioned her very considerable stress, anxiety, worry and unhappiness. Ultimately, the Respondent thought it had made her sick. As it happens, that is the view of the medical practitioners who have examined her. Both her treating psychologist and the psychiatrist diagnosed her as having had in 2016 (when she resigned in the face of the Appellant's sexual harassment) an adjustment disorder with mixed anxious and depressed mood. The psychiatrist also thought her symptoms were consistent with a major depressive episode of moderate severity and noted that at one point that her symptoms were so bad that she felt unable to care for her children. She continues to lack confidence and has poor self-esteem in the work environment. She has been left with a chronic adjustment disorder. Both practitioners agreed that these symptoms were caused by the Appellant's harassment.

What is the ruin of a person's quality of life worth? I flatly reject the Appellant's contention that it was not worth $120,000 and the allied submission that such a finding was not open on the evidence. It seems to me to have been entirely within the range of available awards for general damages in a case of this seriousness where actual psychological harm was occasioned to the Respondent by the Appellant's repeated and self-indulgent actions.

• [260] The Full Court in that matter reiterated that a cookie-cutter approach from other cases is not typically a useful exercise. Most matters will turn on the precise circumstances of the discrimination and the antecedents of the Complainant. As his Honour Justice Perram explained (citations removed):[108]

In any event, one does not assess general damages by performing arithmetic adjustments to prior determinations ...

• [261] The key value of Richardson, and indeed Hughes and other contemporary decisions, is the explanation of the principles upon which those awards were made. They are also valuable as touchstones for assessing prevailing community standards with respect to the monetary value attributed to intangible losses.

• [262] In my view, the question 'what is an appropriate award of general damages?' is answered by undertaking several steps.

• [263] First, it is necessary to determine the loss suffered by the Complainant, which was caused by the contravention. That may involve considering medical evidence, but also requires turning one's mind to factors broader than diagnosable injury, such as embarrassment or humiliation. That may also involve considering the purposes and objects of the Act. Causation must be established. It may also be necessary to consider principles of tort, such as remoteness or mitigation.

• [264] Second, it is necessary to bear in mind the prevailing community standards as to the value of intangibles such as enjoyment of life, and the right to a safe workplace. Ascertaining those community standards and expectations would necessarily require considering decisions which dealt with comparable circumstances and losses.

• [265] Finally, it is necessary to set an award which ameliorates, insofar as money can, the relevant loss identified in the first step. That is a quintessential exercise of discretion.

What was the loss suffered by the Complainant, which was caused by the contraventions?

• [266] Dr Relan's report as to Ms Golding's psychological health is highly pertinent.

• [267] I have found some of the facts underpinning that report to be inaccurate. For example, on page 1 Dr Relan reports that Ms Golding has not had any relationships since her divorce. In evidence before me, Ms Golding reported having a boyfriend. However, it appears to me that those differences were immaterial with respect to Ms Golding's losses. The substance and colour of the facts before Dr Relan were effectively the same as those which I have found in this decision.

• [268] In his report, Dr Relan noted that Ms Golding had previously suffered from depression, as a result of domestic violence from a previous relationship.[109] In her report to Dr Relan, Ms Golding noted that once she left that relationship, her emotional state had settled.[110]

• [269] Ms Golding's account of her symptoms is contained primarily in pages 5, 6, 11 and 12 of Dr Relan's report. Ms Golding reported that she began experiencing anxiety early in 2018, following the sexual conduct in the workplace. She explained that she would be on guard at work, and watch out for Mr Sippel's movements, so as to not be too close to him. She felt unsettled and easily agitated. She also became short-tempered, particularly at home. She would also become tearful, remain continually distressed, scared and worried about the effect of the sexual advances on her ability to continue working. She reported dreading losing her job. Over time, she reported experiencing negative and anxious thoughts, including feeling useless and suffering detriments to her self-esteem and confidence. She felt frustrated and angry at Mr Sippel, and would get easily overwhelmed. Her sleep became erratic, and she reported ruminating during the night. In October 2018, upon attending a psychologist, Ms Golding commenced a course of antidepressant medication, after experiencing dysphoric and unsettled moods.

• [270] Dr Relan's report goes on to note that, over the three months preceding the report, Ms Golding reported feeling fatigue. However, that was said to be attributed to an iron deficiency Ms Golding suffers from. She reported that her mood remains erratic at times, and occasionally dysphoric. She reports continuing anxiety, particularly arising from concerns Ms Golding has about the impact of the workplace incidents upon her. She reports experiencing frequent distressing memories of the workplace issues, and often feels upset in the context of the way she has been dealt with in the workplace. She reports that her anxiety manifests in the form of being quick to worry and lacking confidence. She also reports that she tends to have poor concentration and experiences frequent panic-like symptoms.

• [271] Dr Relan diagnosed Ms Golding with Adjustment Disorder with Mixed Anxiety and Depressed Moods, arising as a consequence of workplace sexual harassment. Noting that Ms Golding had previously experienced psychological symptoms arising from the domestic violence in her earlier relationship, I asked Dr Relan whether he had separately considered the impacts of each as contributors to Ms Golding's current mental health diagnosis. At the Hearing, Dr Relan observed:[111]

I have, Commissioner. In all psychiatry assessments that I do and I think that is part of specifically in situations like workplace situations I always have to consider the impact of the workplace factors that have caused or contributed to work injury and I've done exactly the same in Ms Golding's condition as well. So if you look at my report...I describe about her marriage - marital difficulty that she was going through and the emotional and psychiatric impact of that, and I, in fact, diagnosed her to have suffered from depression...in context of long-term domestic violence. I think further I noted that over time as the relationship ended her situation had, in fact, improved even without the treatment as well. I considered that - that when I saw her and assessed her in early 2019 for the purpose of this assessment her predominant psychological difficulties were in context of the workplace difficulties that she had faced.

• [272] In that way, Dr Relan suggests those previous psychological symptoms can be delineated, and he found that Ms Golding's more recent symptoms "have been more in the context of"[112] the workplace sexual harassment and concerns regarding reporting that issue to the police.

• [273] Dr Relan's report evidences that despite those symptoms, Ms Golding continues to engage with most of the usual aspects of life, albeit with some difficulty. Her appetite remains reasonable. She has been trying to socialise more with friends, and has been seeking to engage in more relaxing activities such as exercising and attending a sauna. She reported that she was able to engage in her studies, though noted she had some unrelated physical constraints affecting placements on that course. She reports keeping herself busy with household chores and looking after her children. Ms Golding does not report any drug or alcohol abuse. She continued to experience mild anxiety and depressive features in the three months preceding the report, and Dr Relan noted that those seemed to be improving. Dr Relan found that Ms Golding appears to have a reasonable prognosis and chance of further recovery. He noted that she was contemplating engaging in work placements associated with a course she was undertaking, and found that she was psychologically able to do so. Even so, he noted that her previous psychological history could affect that recovery and so could not express certainty on the issue without further attendances.

• [274] I have accepted Ms Golding's report of her symptoms and feelings to Dr Relan. True enough, as I noted previously, some of the peripheral details she reported to Dr Relan such as engaging in other relationships were not entirely accurate. However, those have little or no relevance to her report of her emotional state. Further, at no stage was it put to Ms Golding that she was being untruthful in her account to Dr Relan regarding her emotional condition.

• [275] As for non-medical intangible losses, Ms Golding has described feeling humiliated and "cheapened" by the Respondent's bluntly transactional approaches. Given my earlier findings and bearing in mind the nature of the Respondent's conduct, that was an entirely reasonable and understandable reaction.

• [276] In my view of the evidence before the Commission, Ms Golding's losses arising from her medical condition are demonstrable and entirely relevant. Bearing in mind my earlier findings of fact, it is evident that her medical condition has impacted upon her enjoyment and quality of life. Even so, Dr Relan's report expresses a cautiously positive prognosis. Dr Relan described her symptoms at the time of the report to be of mild severity, and those were improving, albeit slowly. The report also evidences that the symptoms suffered by Ms Golding were over a period of time, but may be distinguished somewhat from a person experiencing severe symptoms for an extended period of many years.

• [277] Further, I have accepted Ms Golding's evidence about her other non-tangible impacts. As I have noted in my findings above, some of Mr Sippel's conduct set out to intimidate Ms Golding into having sex with him. It was clear to me that she felt intimidated, "cheapened", and deeply offended by the contravening conduct. Attending at work became fraught with difficulty for Ms Golding. She was required to walk the perilous tightrope of protecting herself from repeated sexual advances, while also not too abruptly rebuffing Mr Sippel and risking losing her employment. I have found that would take a personal toll which caused Ms Golding compensable loss.

• [278] There were no submissions from the Respondents about issues of mitigation, remoteness or the like. In any event, as explained above, it is my view that the intangible losses were the result of the Respondent's contraventions. They were not too remote. Neither do issues of failure to mitigate loss arise. The evidence before me was that Ms Golding is in receipt of workers' compensation, and her injury prevented her from working and mitigating her loss.

• [279] Community expectations and standards as to sexual harassment and discrimination have changed dramatically in recent years. So too has the monetary value attributed to the loss of dignity suffered by victims. Mental health impact holds a place of increasing significance amongst the community.

• [280] Despite that, in Queensland the monetary value attached to psychological and other nontangible losses arising from discrimination has been slightly less than in the Federal jurisdiction.

• [281] At first blush, there is no reason why a person in Queensland ought to receive less compensation for an identical injury suffered interstate. On the other hand, community standards are nuanced, and espoused in part by other decisions. I would be remiss to ignore the monetary values attributed to similar losses in previous Queensland cases.

• [282] I have borne in mind the significant intangible losses suffered by the Complainants in Hughes and Richardson. As a result, as set out above, these decisions involved some of the highest awards of general damages. I have also noted several other matters.

• [283] In Green v State of Queensland, Member Gordon of QCAT awarded $70,000 in damages for non-financial losses. There:[113]

In a nutshell, Mr Green was subjected to a sexually explicit prank in the school where he was employed by the State of Queensland as a cleaner. Mr Brooker the groundsman, with some prior assistance from one of the cleaners Ms Keating, prepared the staff room so that it portrayed the aftermath of a sex romp. The portrayal was intended to prank Mr Green who was one of a team of three cleaners who would be responsible for cleaning the room. Mr Green was led to believe that the sex romp really happened and that two named staff members at the school had been involved.

It is said that in these circumstances, the preparation of the room together with certain things said to Mr Green and the disclosure of the prank to others, were things intended to humiliate Mr Green or would reasonably have that effect, and therefore amount to sexual harassment towards him.

It is said that as a result of these events Mr Green suffered psychological consequences. After he complained to the Anti-Discrimination Commission Queensland about these events, it is alleged that because he had made the complaint, Mr Brooker victimised Mr Green by certain detrimental actions towards him, and his family.

• [284] The tribunal was afforded an array of detailed medical information and other evidence regarding the effect of the contravening conduct. The tribunal found that:

The Respondents correctly submit that an award to Mr Green of substantially more than $100,000 for non-financial loss (which would be inevitable if Richardson were followed because the impact upon him of the unlawful conduct was substantially worse than it was on Ms Richardson) would take it well outside the range of awards for a comparable personal injury case heard in Queensland.

• [285] In brief, the award of damages in Green was aimed to reflect extremely significant intangible losses, which the Member there considered were worse even than those suffered in Richardson. That decision was based upon a somewhat different approach to assessing general damages. Nevertheless, I believe it is relevant to note that decision, because it serves to indicate community expectations and standards in Queensland, in light of Richardson and other contemporary decisions.

• [286] Following in that vein, I have also noted the decision of STU v JKL (Qld) Pty Ltd AND Ors.[114] There, a 21-year-old Complainant was sexually assaulted in her bedroom. Her losses were extremely significant, and categorised that way by the Member hearing the matter. The contravening conduct caused her to suffer PTSD and depression for many years, and also prevented her from working during that time. The Complainant also developed issues with alcohol. The tribunal in that case awarded $70,000 for non-economic losses.

• [287] In cases such as Green, Richardson, STU, Hughes and others, intangible losses have included intensive courses of medication, the onset of drug and alcohol addiction, significant damage to personal relationships the Complainant may have with their spouse or children, and the like. In cases such as that, it has been said that the losses arising from the contravening conduct amounted to the destruction or ruination of the Complainant's life.

• [288] I have accepted the evidence that Ms Golding suffered a psychological injury as a result of the contraventions, and felt humiliated and intimidated by the contravening conduct. Those intangible affects have had a detrimental impact on Ms Golding's quality and enjoyment of life.
• [289] In my view, Ms Golding's losses arising from her medical condition are not of the highest levels of severity. Her personal resilience seems to have aided her in avoiding or resisting many of the harsher effects which may arise from such conduct. She has continued to engage in courses of study, sought to socialise with friends, engaged with her children, and the like.

• [290] Nevertheless, the conduct was over an extended period of time and resulted in a diagnosed medical injury which caused Ms Golding's quality of life to suffer appreciably. In my view, her intangible losses fall within the moderate range. The intangible losses suffered by Ms Golding, significant as they were, do not in my view lie within the categories of cases where the most significant non-financial losses have occurred. The medical evidence explains that the psychological impact of the contraventions at the time of the report included mild symptoms, and a cautiously optimistic prognosis of continued recovery.

• [291] I have borne in mind the intangible losses which I have found Ms Golding has suffered, including the evidence of Dr Relan. In considering the prevailing community standards as to the monetary value attached to such losses, I have also noted where those losses fall in comparison to some other previous decisions. I have subsequently determined that the appropriate award of general damages to address those losses is $30,000.

• [292] The Complainant has sought an award of aggravated damages. Their submissions to that effect can be summarised as follows:

• The Civil Liability Act 2003 (Qld) provides at s 52 that exemplary, punitive or

aggravated damages can only be awarded where the conduct was an unlawful intentional act done with intent to cause personal injury, or was an unlawful sexual assault or other unlawful sexual misconduct.

• While that act does not apply to this matter, the Commission can take guidance

from it in assessing an award of non-financial damages.

• Mr Sippel's conduct was tantamount to a crime, namely procuring engagement in

prostitution under s 229G of the Criminal Code Act 1899 (Qld).

• Further, Mr Sippel's sexual harassment, insofar as it involved physically touching Ms Golding, was also sexual assault.

• There was an immense power imbalance between the parties.

• Mr Sippel has failed to acknowledge the intent of his conduct, the seriousness of his conduct and its impact upon Ms Golding.

• Mr Sippel's previous work involved managing a large number of employees, and ensuring they complied with standards of workplace behaviour.

• Taken together, those matters warrant an award of exemplary damages.

• In support of that proposition, the Complainant relies upon Collins v Smith (Human Rights).[115]

• The Complainant goes on to submit that "the gravity, depravity and recalcitrance displayed by the Second Respondent", an award of at least $50,000 in aggravated damages is warranted. Such an award is said to be consistent with the approach in Hughes where, as occurred in this case, the Respondent sought to blame the Complainant for the offending behaviour.

• [293] Aggravated damages have been considered in several decisions in the Federal jurisdiction. In Hall v A & A Sheiban Pty Ltd,[116] it was noted that aggravated damages could be awarded under s 46PO(4) of the Human Rights Commission Act 1986 (Cth), because they were foundationally compensatory in nature.[117]

• [294] In Wotton v State of Queensland (No 5),[118] the principles applying to aggravated damages were considered (emphasis added):

Aggravated damages were described by Lord Diplock in Cassell & Co Ltd v Broome [1972] UKHL 3; [1972] AC 1027 at 1124 (citing with approval the description given by Lord Devlin in Rookes v Barnard [1964] UKHL 1; [1964] AC 1129) as "[a]dditional compensation for the injured feelings of the plaintiff where his sense of injury resulting from the wrongful physical act is justifiably heightened by the manner in which or the motive for which the defendant did it." That formulation was applied with approval by Clarke JA in the New South Wales Court of Appeal in Spautz v Butterworth [1996] NSWSC 614; 41 NSWLR 1 at 15-18, although it should be noted that the High Court has acknowledged criticism of Rookes v Barnard on other issues, notably that case's approach to exemplary damages: see Gray v Motor Accident Commission [1998] HCA 70; 196 CLR 1 at [18]- [19] (Gleeson CJ, McHugh, Gummow and Hayne JJ) and the authorities there cited, especially Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; 117 CLR 118.

Another description of the function of aggravated damages was given by Windeyer J in Uren at 149, where his Honour said that aggravated damages "compensate the plaintiff where the harm done to him by a wrongful act was aggravated by the manner in which the act was done". This passage was cited with apparent approval in Gray v Motor Accident Commission at [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ). The plurality opinion in Gray emphasises that exemplary damages are punitive, by finding that once a person has been convicted and sentenced for conduct she or he has been punished and exemplary damages for substantially the same conduct are not available: at [40]. The character of the conduct necessary for an award of aggravated damages was described by the High Court in Triggell v Pheeney [1951] HCA 23; 82 CLR 497 at 514 as lacking bona fides, or being improper or unjustifiable.

In some cases, the aggravation comes not from conduct directly associated with or following on from the contravening conduct, but from subsequent conduct that has the same effect. In Elliott v Nanda [2001] FCA 418; 111 FCR 240 at [179]- [185], Moore J set out the kinds of additional circumstances which might justify such an award. All concerned the manner in which a respondent or defendant conducted proceedings brought against her, him or it. An example is Houda v New South Wales [2005] NSWSC 1053, in which aggravated damages of $20,000 were awarded for the way the defendant conducted its defence of the proceedings against the plaintiff.

Neither party referred the Court to any anti-discrimination cases (whether under s 46PO(4) of the AHRC Act or otherwise) in which aggravated damages had been awarded for acts of unlawful discrimination, although clearly Elliott v Nanda is such a case. In Hall v Sheiban Lockhart J (at 239-40) and French J (at 282) were prepared to assume, without deciding, that aggravated damages may be available under s 81(1)(b)(iv) of the Sex Discrimination Act.

In McIntyre v Tully (1999) 90 IR 9, an age discrimination case, Atkinson J upheld an award of aggravated damages for the way the complainant was cross-examined, saying at [25]-[26]:

It has been recognised that in those category of cases where damages are awarded for hurt and humiliation, aggravated damages may be awarded because of the defendant's conduct of the case. Aggravated damages are compensatory in nature being 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; Mafo v Adams [1970] 1 QB 548 at 558). Such injury may be exacerbated by the defendant's conduct of the case. In John v MGN Ltd [1997] QB 586 at 608, Bingham MR held that the fact that the plaintiff had been cross-examined in a wounding and insulting way could be taken into account in the assessment of damages. In false imprisonment cases, damages for an initial false imprisonment may be aggravated by persistence with the assertion of facts alleged to justify the imprisonment up to the moment when damages are assessed which continue the slur on the plaintiff's reputation ... .

There is no reason in principle why this head of damages should not be awarded in appropriate cases for unlawful discrimination when damages are awarded for distress, loss of dignity and injury to feelings ... .

The weight of authority therefore favours the view that aggravated damages may be awarded under s 46PO(4).

• [295] In my view, bearing in mind that the purpose of s 209(1)(b) is compensatory and in virtually identical terms to s 46PO(4), I am minded to adopt a similar approach. I am wary, however, of awarding aggravated damages with respect to how a party responds to a case. The purpose of damages is to compensate for loss, not to punish. That is particularly relevant in circumstances where a Respondent is self-represented.

• [296] The Complainant's submissions about "the gravity, depravity and recalcitrance displayed by the Second Respondent" are relevant in the sense of establishing that a person could reasonably be expected to suffer greater loss as a result of that conduct. Again, the question is about an appropriate award of compensation. The award of $50,000 in aggravated damages in Hughes can be distinguished in several key ways from the present case. In that matter, his Honour Judge Vasta said:

The Applicant has submitted that there should be an award for aggravated damages. There are two aspects to this matter that I would consider significantly aggravate the damages to a point where there should be a separate award for that aggravation.

The first aspect is the threats that the Respondent made to this stop the Applicant from making a complaint. Despite his protestations to the contrary, it is clear that the Respondent knew that his conduct was unlawful to the extent that a complaint about it would be justified.

He wrote, on a number of occasions that he was "very careful not to harass you" and even had, in block letters, in the subject line of his emails "expressing my feelings is not harassment".

As detailed earlier, the Respondent made a condition of his continuing to train the Applicant that she must "assure me you will not make a complaint or sue me". And then to tell her "I always fight the good fight btw", as if to tell her that she would be not only wrong to make a complaint against him but that he would fight.

This factor is quite a separate factor from that which I have considered in the assessment of general damages. It is behaviour that is akin to, but just falls short of, perverting the course of justice.

The second aspect that aggravates these damages, is the manner in which the Respondent has conducted these proceedings. In the rough-and-tumble of litigation, there are occasions where litigants simply tell lies. In my view, the Respondent has told many lies in this litigation. Examples of this are the contentions of the Respondent that the Applicant told him "I expect to be loving towards you by the end of the week" or that the Applicant propositioned the Respondent at the Lions curry night in 2016.

As appalling as that conduct is, it is not conduct that would warrant an aggravation in the damages. But there are other aspects of the way in which the Respondent has conducted himself in these proceedings that would be immensely distressing to the Applicant.

One of the more despicable acts in which the Respondent has indulged, is that he has used information that he gleaned whilst acting as her "legal representative" for the sole purpose of blackening the name of the Applicant in these proceedings.

• [297] Here, I have not found that Ms Golding was victimised or threatened about making a complaint. Further, there was no special relationship of trust, such as between a lawyer and client, which was breached here in the conduct of the proceedings.

• [298] As the Complainant submits, and I agree, there was an immense power imbalance between the parties and that is relevant. However, I am not minded to adopt the Complainant's submissions regarding the Civil Liability Act 2003 (Qld), beyond the suggestion that aggravated damages can and should be awarded. That Act simply does not apply to these proceedings, and so it is unnecessary to embark upon a process of considering whether the award of aggravated damages should be made with respect to allegations tantamount to a crime.

• [299] General damages deal with the vast majority of intangible losses, but in this instance the Respondent's contraventions were beyond unwelcome sexual advances or comments. They were transactional; either Ms Golding would accede to the advances or she would not be offered further work. As it happened, she did not accede, and her employment ended upon her making a complaint to the police. Ms Golding's sense of injury resulting from that contravention was justifiably higher because of those additional circumstances.

• [300] I am mindful of the way Mr Sippel progressed his case. On several occasions, he made comments about Ms Golding regularly going to the gym, wearing makeup, dancing at work and the like, in the context of her having engaged with him in a flirtatious way. The Complainant submits that the manner in which Mr Sippel conducted his case was effectively blaming Ms Golding for his own conduct. I did not perceive his case to be progressed in quite that manner. I am conscious that Mr Sippel was self-represented, and his points were not advanced with nuance. It is legitimate for a Respondent to a sexual harassment complaint to argue that the Complainant was a willing participant in the relationship, and that is broadly the case I understood Mr Sippel sought to run. Certain aspects of his case were regrettable but, given all of the circumstances, the manner in which he conducted his case does not in my opinion rise to the level of attracting aggravated damages.

• [301] In those circumstances, and bearing in mind the compensation for intangible losses Ms Golding has been compensated for by general damages, I am minded to award $5,000 in aggravated damages to accurately reflect the increased loss Ms Golding suffered as a result of the callously transactional contravening conduct.

• [302] In Mulholland v State of Queensland and Anor, I said:[119]

Further, there is nothing within section 209, sch 2 of the IR Act, or within the AD Act more broadly, which would expressly empower this Commission to apportion an award of damages, or to order that one respondent should pay an amount to another. This Commission is empowered to order that the respondent pay an amount considered appropriate to compensate the Complainant for loss or damage caused by the contravention. The purpose of any award of damages must therefore be to compensate for loss or damage caused to the complainant, not between any of the respondents. The words 'caused by the contravention' do not appear to invite apportionment between each of the respondents, but rather to establish causation between the contravention and the loss. I acknowledge that such a view certainly presents some oddities in how an award of damages is to be made, particularly where one respondent's conduct caused more loss to the complainant. Nevertheless, there simply does not appear any power to make such an apportionment.

Hopper v Mount Isa Mines Ltd, insofar as his Honour Justice Moynihan considered apportionment, provided: [120]

At first blush it seems extraordinary that the third, fourth and fifth appellants, whose harassment was constituted by a single incident, should be treated as equally responsible with the second appellant who was in a supervisory position and whose relations with the respondent continued over a period of time. The more so with respect to the first appellant which is vicariously responsible for both the harassment and discrimination by the other appellants which it was open to the Tribunal to find.

The Act, however, makes no provision for apportionment. Apportionment of damages in accordance with the various parties' degree of fault is a creature of statute. It was first introduced into English maritime law in 1911 in lieu of a rule of equal division and more generally in Queensland by the Law Reform Act 1995. See the discussion in Fleming, The Law of Torts (9th ed., 1998) p. 306. Absent an applicable statutory provision there does not seem to have been any power to apportion.

While that decision may be distinguished insofar as it deals with a previous iteration of the power to join parties to a proceeding under the AD Act, the legislation underpinning an award of damages has not been altered in any relevant sense since his Honour's decision. It is therefore binding upon this Commission.

I find that there is no basis for this Commission to apportion damages in a proceeding under the AD Act.

• [303] That is an inconvenient outcome, as observed by Moynihan J, but nonetheless I believe it remains the correct view.

• [304] Ms Golding indicated her intention to seek a costs order against the Respondents.[121] I am minded to entertain that application for costs in this matter.

• [305] In making this decision, I note the relevant legislative provisions. Section 2 of Sch 2 of the Industrial Relations Act 2016 (Qld) provides that, for proceedings brought under the Anti-Discrimination Act 1991 (Qld), the default position is for each party to bear its own costs.

• [306] However, a departure from this practice may be exercised at my discretion, having regard to circumstances where "the interests of justice" would require an order for costs to be made.[122] Schedule 2, at s 4,[123] lists circumstances that may inform any decision as to whether an order for costs may be made.

• [307] Having considered those relevant legislative provisions, together with the circumstances of this case, I am persuaded to disturb the usual practice so prescribed. The clear evidence of the overtly transactional text exchange was frankly so compelling that a reasonable person, self-represented or otherwise, ought to have known they had no prospects of defending the complaint. Those circumstances warrant the exercise of my discretion in this matter to award costs.

• [308] The Complainant has not provided any evidence of their costs incurred, or what their costs would be against the Magistrates or District Court scales, beyond seeking costs fixed in the amount of $60,000. That is unfortunate, because it does not allow me to easily fix an award of costs, which is espoused to be the preferred process under Sch 2, at s 9.[124]

• [309] The Respondents are to bear Ms Golding's costs of and incidental to these proceedings, to be agreed or, failing agreement, assessed at the Magistrates Court scale.

• [310] I have found that the complaints of sexual harassment and direct discrimination are upheld.

• [311] The complaint of victimisation is dismissed.

• [312] The appropriate remedy is an award of damages for economic loss for $15,960.75 (subject to appropriate taxation), and non-economic loss of $30,000. I have also awarded aggravated damages of $5,000.

• [313] I have also found that the Respondents ought to bear the Complainant's costs, to be agreed or assessed at the Magistrates Court scale.

1. That the complaint of sexual harassment is substantiated.

1. That the complaint of direct discrimination is substantiated.

1. That the complaint of victimisation is dismissed.

1. That the Respondents pay to the Complainant, within 28 days:

1. $15,960.75 for economic loss, which must be subject to appropriate taxation;

1. That the Respondents are to bear the Complainant's costs, to be agreed or assessed at the Magistrates Court scale. That is to occur either within 28 days after agreement, or 28 days after assessment.

[1] Exhibit 2; Dr Relan's Independent Medico-Legal Report, 19 January 2019, page 7, [224].

[6] Anti-Discrimination Act 1991, s 15(1)(a) and s 15(1)(f).

[7] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.

[8] Motlap v Workers' Compensation Regulator [2020] QIRC 196, pages 8 - 9, [36].

[9] Exhibit 1; First Respondent's Statement of Facts and Contentions, filed 17 July 2020, page 3, [19].

[10] Transcript, page 1-19, lines 30 - 35; Transcript page 1-24, lines 10 - 47; and Transcript page 1-46, lines 31 - 35.

[11] Transcript, page 1-19, lines 1 - 5.

[12] Exhibit 2; Dr Relan's Independent Medico-Legal Report, 19 January 2019, page 3, [77].

[13] Exhibit 2; and Transcript page 1-68, lines 20 - 45.

[14] Exhibit 2; Dr Relan's Independent Medico-Legal Report, 19 January 2019, page 2, [59].

[15] First Respondent's Statement of Facts and Contentions, filed 17 July 2020, pages 2 and 3, [17]; Transcript page 2-2, lines 46 - 47; and Transcript page 2-5, lines 5 - 35.

[16] Transcript, page 2-25, lines 1-46.

[17] Complainant's Statement of Facts and Contentions, filed 3 July 2020.

[18] Complainant's Statement of Facts and Contentions, filed 3 July 2020, page 1, [6].

[19] Transcript, page 1-10, lines 1 - 45.

[20] First Respondent's Statement of Facts and Contentions, filed 17 July 2020, pages 1 and 4, [1] and [25].

[21] Exhibit 2; Dr Relan's Independent Medico-Legal Report, 19 January 2019, page 3, [93].

[22] Exhibit 2; Dr Relan's Independent Medico-Legal Report, 19 January 2019, page 3, [83].

[23] Transcript page 2-11, lines 39 - 47.

[24] Complainant's Statement of Facts and Contentions, filed 3 July 2020, page 1, [7] - [8].

[25] First Respondent's Statement of Facts and Contentions, filed 17 July 2020, page 2, [17].

[26] First Respondent's Statement of Facts and Contentions, filed 17 July 2020, page 4, [29]; Complainant's Statement of Facts and Contentions, filed 3 July 2020, pages 1 and 2, [7] - [8].

[27] Exhibit 2; Dr Relan's Independent Medico-Legal Report, 19 January 2019, page 3, [91] - [94].

[29] Transcript, page 2-14, lines 25 - 30.

[30] Complainant's Statement of Facts and Contentions, filed 3 July 2020, page 2, [9].

[31] Transcript, page 1-12, lines 15-24; and Transcript, page 1-13, lines 1-19.

[32] First Respondent's Statement of Facts and Contentions, filed 17 July 2020, page 3, [17].

[34] Complainant's Statement of Facts and Contentions, filed 3 July 2020, page 2, [10].

[35] Transcript, page 1-26, lines 1 - 6.

[36] Respondent's Statement of Facts and Contentions, page 2, [14].

[38] As described in detail at paragraphs [62] - [73] of this Decision.

[39] Exhibit 2; Dr Relan's Independent Medico-Legal Report, 19 January 2019, page 3, [97].

[41] Complainant's Statement of Facts and Contentions, filed 3 July 2020, page 1, [11] - [13].

[42] Transcript, page 1-17, lines 10 - 47.

[43] Complainant's Statement of Facts and Contentions, filed 3 July 2020, page 2, [12].

[44] Complainant's Statement of Facts and Contentions, filed 3 July 2020, page 2, [13].

[45] First Respondent's Statement of Facts and Contentions, filed 17 July 2020, page 3, [17].

[46] Exhibit 2; Dr Relan's Independent Medico-Legal Report, 19 January 2019, pages 3 and 4, [97] - [102].

[47] Exhibit 3, pages 3-14 [5] - 3-18, [15]

[48] Complainant's Statement of Facts and Contentions, filed 3 July 2020, page 2, [14] - [15].

[49] Transcript page 2-24, lines 17 - 34.

[51] Transcript, page 2-7, lines 9-14; and First Respondent's Statement of Facts and Contentions, filed 17 July 2020, page 3, [19].

[52] Complainant's Statement of Facts and Contentions, filed 3 July 2020, page 2, [16].

[53] Transcript, page 1-18, lines 15 - 24.

[54] Transcript, page 2-11, lines 39 - 47.

[55] Complainant's Statement of Facts and Contentions, filed 3 July 2020.

[56] Exhibit 2; Dr Relan's Independent Medico-Legal Report, 19 January 2019, page 3, [93] - [94].

[57] Complainant's Statement of Facts and Contentions, filed 3 July 2020, page 2, [17].

[58] Transcript, page 1-13, lines 34 - 46.

[59] Transcript, page 2-11, lines 39-47.

[60] Complainant's Statement of Facts and Contentions, filed 3 July 2020.

[61] Transcript, page 1-13, lines 32-46.

[62] Complainant's Statement of Facts and Contentions, filed 3 July 2020, page 3, [19].

[63] Transcript, page 1-14, lines 19-30.

[64] Complainant's Statement of Facts and Contentions, filed 3 July 2020, page 3, [20].

[67] Mr Travis O'Brien, Counsel for Ms Golding.

[69] Transcript, page 2-7, lines 9 - 14.

[70] Complainant's Statement of Facts and Contentions, filed 3 July 2020, page 3, [24].

[71] Complainant's Statement of Facts and Contentions, filed 3 July 2020, page 4, [25].

[72] First Respondent's Statement of Facts and Contentions, filed 17 July 2020, page 3, [18].

[74] Findings of Fact, f) Working Hours, paragraphs [116] - [121].

[75] As I have done in the section above, 'Findings of Fact', paragraphs [74] - [157] of this Decision.

[77] Transcript, page 1-4, lines 41 - 47.

[79] I have described the particular circumstances at paragraph [160] above.

[81] I have described the particular circumstances at paragraph [160] above.

[84] I have described the particular circumstances at paragraph [160] above.

[85] Transcript, page 1-18, lines 15-24.

[87] Anti-Discrimination Act 1991 (Qld), s 10; Ronalds, C and Raper, E, 'Discrimination Law and Practice', The Federation Press, 2012, page 38.

[88] Complainant's Statement of Facts and Contentions, filed 3 July 2020, page 8, [10].

[89] Complainant's closing submissions, filed 12 January 2021, page 11, [16].

[90] Transcript, page 2-23, lines 20 - 46.

[91] Haines v Leves (1987) 8 NSWLR 442, 471.

[92] Commonwealth v Evans (2004) 81 ALD 408, [80].

[93] Haines v Bendall [1991] HCA 15; (1991) 172 CLR 60, 63.

[94] Note that the figures used are gross of tax.

[95] Sex Discrimination Act 1984 (Cth) ss 28A, 28B.

[96] Australian Human Rights Commission Act 1986 (Cth) s 46PO(4)(d).

[97] Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82; (2014) 312 ALR 285 ('Richardson').

[98] Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82; (2014) 312 ALR 285, [3].

[99] Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82; (2014) 312 ALR 285, [126] - [127], [148].

[100] Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82; (2014) 312 ALR 285, [90].

[101] O'Brien v Dunsdon (1965) 39 ALJR 78, 78.

[102] Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82; (2014) 312 ALR 285, [102].

[103] Tan v Xenos (No 3) [2008] VCAT 584, [556].

[104] Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82; (2014) 312 ALR 285, [28], [30] - [31]; Hall v A & A Sheiban Pty Ltd [1989] FCA 72; (1989) 20 FCR 217, 238, 281

[105] Hill v Hughes [2019] FCCA 1267.

[106] Hill v Hughes [2019] FCCA 1267, [251].

[107] Hughes trading as Beesley and Hughes Lawyers v Hill [2020] FCAFC 126, [45] - [47].

[108] Hughes trading as Beesley and Hughes Lawyers v Hill [2020] FCAFC 126, [48]. See also Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; (1968) 119 CLR 118, 124; Richardson v Oracle Corporation Australia Pty Ltd [2013] FCA 102, [82], [102].

[109] Exhibit 2; Dr Relan's Independent Medico-Legal Report, 19 January 2019, page 4 -5.

[110] Exhibit 2; Dr Relan's Independent Medico-Legal Report, 19 January 2019.

[111] Transcript, page 1-70, lines 21 - 34.

[112] Exhibit 2; Dr Relan's Independent Medico-Legal Report, 19 January 2019, page 12.

[113] Green v State of Queensland, Brooker and Keating [2017] QCAT 008, [2] - [4].

[114] STU v JKL (Qld) Pty Ltd AND Ors [2016] QCAT 505

[115] Collins v Smith (Human Rights) [2015] VCAT 1992, [184] - [187].

[116] Hall v A & A Sheiban Pty Ltd [1989] FCA 72; (1989) 20 FCR 217.

[117] Hall v A & A Sheiban Pty Ltd [1989] FCA 72; (1989) 20 FCR 217, 239-240. See also Wotton v State of Queensland (No 5) [2016] FCA 1457.

[118] Wotton v State of Queensland (No 5) [2016] FCA 1457.

[119] Mulholland v State of Queensland and Anor [2020] QIRC 192, [40] - [44].

[120] Hopper v Mount Isa Mines Ltd [1998] QSC 287; [1999] 2 Qd R 496, [60]-[61].

[121] Transcript, page 1-5, lines 43 - 47.

[122] Industrial Relations Act 2016 (Qld), Sch 2, s 4(1).

[123] Industrial Relations Act 2016 (Qld)

[124] Industrial Relations Act 2016 (Qld)