GrainCorp Operations Limited and another re S Markham v GrainCorp Operations Limited - PR924103 [2002] AIRC 1318; (29 October 2002)

Workplace Relations Act 1996

s.45 appeal against decision [PR918699]

s.170CE application for relief in respect of termination of employment

[1] This is an appeal by GrainCorp Operations Limited (GrainCorp) against a decision and order of Blair C given at Melbourne on 12 June 2002 in which he upheld an application by Mr Stephen Markham (the respondent) for relief in respect of his termination of employment. Blair C held that the termination was harsh, unjust or unreasonable and ordered the reinstatement of the respondent, with a final warning, to the position he occupied prior to termination, together with the re-crediting of all prior service to the date of termination and reimbursement for lost income except for monies already earned since the termination. GrainCorp seeks leave to appeal against that decision and we think it convenient to deal with both the application for leave to appeal and the substantive appeal together.

[2] As Blair C noted at paragraph [4] of his decision there is a degree of agreement on the basic elements that led to the termination of the respondent. However, there is a dispute as to whether the actions of the respondent warranted termination. Blair C recorded the version of events alleged in favour of the respondent at paragraphs [5] and [6] of his decision as follows:

"[5] Mr Markham alleges as follows: In May of 2001 he was asked by Mr Mark Hogan to attend a training course in Bendigo from 29-31 May 2001. Mr Hogan said that the applicant should travel with a Miss Naomi Barton and Mr Brett Williams as they all lived on the same side of Geelong. There were two hire cars that were arranged to travel to the training course. Miss Barton was to drive one vehicle and the other vehicle was to be filled by three workers who apparently lived on the Grovedale side of Geelong. Mr Markham alleges that Mr Hogan, who was Mr Markham's foreman, advised Mr Markham that Ms Barton would not pick up the applicant at his residence at Lara. Mr Markham found this difficult to understand given that this was a normal procedure. Mr Markham alleges that he offered to drive the hire car himself and pick up Mr Williams and Ms Barton. Mr Markham alleges that Ms Barton rejected such a proposal. Mr Markham got offended by this and is alleged to have advised Mr Ken Scully, the Terminal Manager at Geelong, that in the circumstances he did not wish to attend the course. Mr Markham was also upset that Ms Barton wanted Mr Markham to travel to the Grain Corp depot to travel to Marong in the hire car. Mr Markham felt that this placed a great inconvenience on his family. Grain Corp eventually arranged for a taxi to take Mr Markham to the Grain Corp depot to meet with Mr Williams and Ms Barton. Mr Markham was eventually convinced to go to the course which was to be conducted at Marong, near Bendigo, with the participants in the course staying at the National Hotel in Bendigo.

[6] During the course of the evening of 30 May 2002 a fair amount of alcohol was consumed. Mr Markham along with Mr Brett Williams occupied Room 8. Ms Barton occupied Room 7 with Mr Gleeson, another Graincorp employee occupying Room 6. Rooms 7 and 8 had interconnecting doors. A Mr Mark Vecoli, another Grain Corp employee, indicated that he left the bar at 12.30am and went to the motel across the road to collect his bags as he had decided to stay in Stephen Markham and Brett Williams' room on the spare bed. He says that he returned to the room at approximately 1.00am. At approximately somewhere between 12.45am and 1.30 am, whilst Mr Markham was in his room along with Mr Williams, Mr Vecoli and Mr Degoldi, it is acknowledged by Mr Markham that he was knocking on the internal door, that is, of Room 7, Ms Barton's room. Using phrases such as `fucking bitch', `fuck the bitch', `fucking slut'. It is alleged that Brett Williams asked him a couple of times to stop using such language." [PN918603]

[3] He recorded Ms Barton's evidence (the alleged victim of the respondent's comments) as follows:

"[7] Ms Barton alleges that the incident went further than that. Ms Barton alleges that Mr Markham tried to enter Room 7, her room, by the use of the internal doors and then went to the front door of Room 7 banging on the door. Ms Barton alleges that Mr Markham went further with the use of words such as `she had her chance, fuck her, get the bitch on her back, the only good root she'll get, put your mouth/lips around this.' Ms Barton alleges that the incident took place between 12.45am and 1.30am on Wednesday 30 May 2001. Ms Barton then states that she got dressed in the dark rather than to arouse attention for fear and also that she was petrified, left the hotel room, walked to reception, tried to attract, through the use of the communications system, the attention of the management which she could not do, but saw a garage across the road from the hotel and eventually went to that garage where the operator of the garage contacted the hotel management to advise them that they had a distressed person from the hotel.

[8] It is alleged that Mr Markham was not aware that Ms Barton was in fact in her room whilst the incident of using offensive language occurred.

[9] The comments made by Mr Markham concerning Ms Barton arise from the incident where it is alleged that Ms Barton refused to pick up Mr Markham from his home address. Mr Markham appeared to be extremely aggrieved by this incident and had obviously built up some hostility towards Ms Barton because of the alleged refusal to pick Mr Markham up from his residence to go to the course at Marong." [ibid.,]

· The respondent over dinner appeared to be still aggrieved by the alleged position of Ms Barton in refusing to pick him up from his home address.

· On his way back to his room he had to pass Ms Barton's room (room 7) and he banged on the external door.

· The respondent did not know that Ms Barton was in her room for her vehicle was not parked outside. [paragraph [10]]

[5] He also appeared to accept at paragraph [12] of his decision that the respondent's comments to which we will turn shortly were addressed to Mr Brett Williams because Mr Williams kept saying "you can't do that". At paragraph [13] Blair C, while not making a finding as to the time of Ms Barton's return to the hotel, accepts that the first the respondent and those with him knew that Ms Barton was in the room at the time of the incident was when the hotel manager entered their room and advised them that Ms Barton was then in the manager's residence and had been upset by the actions of room 8. It appears from paragraph [15] that Blair C accepted that there is no door handle on the interconnecting doors between rooms 7 and 8, so the respondent could not have attempted to enter room 7.

[6] At paragraph [17] Blair C accepted that the respondent did apologise to Ms Barton for his actions and decided to leave the course and return to Geelong. Blair C also accepted that the respondent was remorseful for his actions. Blair C then turned to the question of whether or not the actions of the respondent warranted termination. At paragraph [20] Blair C set out GrainCorp's reasons for terminating the respondent as that "he engaged in menacing, bullying, intimidating, harassing (including sexually harassing) and victimising conduct directed towards the sole female employee in attendance at a company sponsored training course" [ibid.,]. At paragraph [21] Blair C recorded that GrainCorp alleged that the respondent's conduct was unlawful in regard to both the Sexual Discrimination Act 1984 and the Equal Opportunity Act 1995 (Victoria) in that a person who sexually harasses another if he/she makes an unwelcome sexual advance or unwelcome request for sexual favours on the person or engages in other unwelcome conduct of a sexual nature in relation to the person harassed and in that situation, a reasonable person having regard to all the circumstances would have anticipated that the person would be offended, humiliated or intimidated. Reference was made to Johanson v. Michael Blackledge Meats [(2001) FMCA 6 (1 March 2001)].

[7] At paragraph [23] Blair C rejected the submission that the respondent's conduct related to sexual harassment. He did so in these terms:

"The Commission would have to accept the applicant's argument that the comments made, although totally unsatisfactory, were about the third person, namely Ms Barton, but were directed towards Mr Williams, who was telling Mr Markham to basically `knock it off'. Mr Markham, for reasons that the Commission does not understand why, became extremely aggravated about Ms Barton refusing to pick him up at his home address in Lara to attend the training course. This obviously was eating away at Mr Markham to the extent that after several drinks Mr Markham vented his spleen at others in Room 8 with him that night, particularly Mr Williams." [PR918603, para 23]

[8] Blair C then went on to hold that he was satisfied that no one else knew that Ms Barton was in room 7. He also held that the effect of the words "fuck the bitch", "fucking bitch" and "fucking slut" was not sexual in nature. He held that they were to be looked at in the same terms as the use of the words "fucking bastard" which is generally directed towards a male. He went on to hold that the conduct can only be unwelcome if it is directed towards the person who may find it unwelcome. In this case he held:

"The person `harassed is, or would be offended, humiliated or intimidated' by the conduct, infers that there is intent to harass the person who would be `offended, humiliated or intimidated' by the conduct. That is not the case in this instance. Finally, for a `reasonable person would have anticipated that the person harassed would have felt this way' assumes in the Commission's view that the person who's making the comments knows that the person whom the comments are about can actually hear them." [ibid., para 23]

[9] Blair C then set out an exchange in transcript between himself and Mr McConaghy, the Employee Relations Manager for GrainCorp, which appeared significant in his reaching the conclusion he did, but we do not propose to repeat that material here. Blair C then went on to hold that there was not a valid reason for termination. While the respondent's conduct was "totally unsatisfactory", he held that it could not be said the actions were directly pointed to Ms Barton. He went on:

"They were actions and words used by Mr Markham with Ms Barton being referred to in the third person. If one were to accept the principle that Graincorp operated on, that is, that in this instance four people, one of them expressing a view, although out loudly, to three other work colleagues about another person in the third person and they happen be heard, that that is grounds for termination." [ibid., para 30]

[10] Blair C held that it would be different if the respondent had known Ms Barton was in the room and refused to cease using the words. Blair C then went on to hold that the respondent was notified of the reasons for the termination and that he was provided with every opportunity to respond to the allegations made against him. Blair C also indicted at paragraph [38] that he had given consideration to two matters:

"(a) arising out of the incident there were two police charges laid against Mr Markham but were subsequently dismissed, and

(b) there was an incident in 1995 where a letter was forwarded to Mr Markham in the terms that Mr Markham was reminded of this responsibilities concerning the maintenance of harmonious relations within the workplace. The letter referred to an incident concerning two outbursts in the foreman's office and an incident in late September 1995 involving a visitor to the site representing an outside organisation. The letter went on:

`. . . behaviour which may be interpreted as insulting, threatening or aggressive will not be condoned or tolerated by myself or any other responsible employer.'

And it is signed by David Macfarquhar, Manager Geelong Terminal." [ibid., para 38]

But at paragraph [41] Blair C indicated that he would not take the two issues into consideration.

[11] Blair C then turned to remedy and at paragraph [43] noted the evidence of Ms Barton:

"On the issue of remedy the Commission notes that Ms Barton, under examination in chief, was asked, `How would you feel if Mr Markham was reinstated in his employment?' Ms Barton, `I would have to resign.' From Mr Johns, `Why do you say that?' Ms Barton, `There is no possible way I could possibly go back there and know I feel safe and be able to work and feel safe because I just don't know if . . . I mean he has done it once, what is to say . . . I mean that place is huge. You might not see someone for hours and not know where they are. I mean what happens if I ran into him and he lost his temper or something and, you know, I don't know what would happen. In my mind there is no possible way I could possibly work there if he ever came back and I said that before.'" [ibid., para 43]

[12] He held that he could not be influenced by those comments and at paragraph [44] found that there was no evidence that indicated that the respondent had tried in any physical way to harm Ms Barton and he reiterated his earlier finding that the comments made by the respondent were not aimed at Ms Barton directly. Blair C also disregarded a redundancy program about to commence at GrainCorp's Geelong Operation, and a submission that the reinstatement of the respondent would not be conducive to a productive working relationship. In this respect Blair C accepted that there was no indication from any witness other than Ms Barton that the return of the respondent would create discontent or not provide a conducive and productive working place with other employees. Blair C also accepted the evidence that the likelihood of Ms Barton and the respondent coming into contact on a regular basis was remote. He therefore proceeded to reinstate the respondent on the terms already indicated.

[13] We should record at this stage that we granted leave to intervene to the Human Rights and Equal Opportunity Commission (HREOC) on the following basis:

"We have considered what has been put. We think that, taking into account section 93 of the Act, we must grant leave to HREOC. We are conscious of the position put by Mr Staindl about costs and we require that there be no repetition of any submissions that are to be made on behalf of the appellant in the matter. Mr Staindl, if you require time to consider HREOCs submission you will be afforded that time." [transcript PN25]

[14] We are of the view that it is appropriate to grant leave to appeal in this case. Having heard the argument, we think the decision of Blair C was, with respect to him, attended by sufficient doubt to warrant reconsideration by a Full Bench. Accordingly, we grant leave to appeal and turn to deal with the grounds of appeal (as developed in the oral submissions) seriatim.

[15] In respect to leave to appeal Ms Richards submitted that leave should be granted for the following reasons:

"(a) The Commissioner's reasoning on the issue of sexual harassment was erroneous in several respects. That matter is of such importance that it is in the public interest to grant leave.

(b) For the reasons set out below, the Commissioner's decision was in error, and substantial injustice would be done to the Appellant, and to Ms Barton, if the error were not corrected." [exhibit MFI 1, p.2]

[16] Ms Richards then in her oral submissions turned to the grounds of appeal and submitted that grounds (1) and (2) of the Notice of Appeal involved Blair C failing to make a relevant finding of fact. She submitted on behalf of GrainCorp that its conclusions as to what the conduct involved included findings that:

"The Respondent was dismissed because of his conduct in the early hours of 30 May 2001. The Appellant's conclusions as to what that conduct involved included findings that the Respondent's loud knocking on the doors to Ms Barton's room was accompanied by him shouting `she's had her chance - fuck her', `get the bitch on her back . . . the only good root she'll get' and `put your mouth/lips around this': Exhibit G10, McConaghy, Attachment R (Tab 23). The Respondent denied using the last two phrases, while admitting using the words `fuck the bitch', `fucking bitch', `fucking slut' and `she's had her chance'." [exhibit MFI 1, p.3]

[17] GrainCorp argued that Blair C did not determine the critical issue of whether the respondent used those words. Secondly, in this respect, it was argued that Blair C did not determine the issue of whether the respondent, while he did not positively know that Ms Barton was in her room, did not know she was not there and was alive to the possibility that she might be.

[18] We turn to deal with these grounds. In relation to the first of them we accept that Blair C recorded at paragraph [7] the allegations of Ms Barton that the respondent said words to the effect of "she had her chance, fuck her, get the bitch on her back, the only good root she'll get" and "put your mouth/lips around this". The contest is whether he did not rule on these allegations on the one hand or that he rejected them on the other. Blair C's finding at paragraph [11] refers only to "fucking bitch", "fuck the bitch" and "fucking slut" and at paragraph [12] "fuck the bitch", "get fucked" and "fucking slut". We accept that Blair C does not appear to have determined this issue and it does seem incumbent on us to determine whether the additional disputed words were used.

[19] We should say that Mr Staindl on behalf of the respondent, argued strongly that by inference Blair C had rejected the fact that the additional words were used and such a rejection was not surprising given the evidence of Messrs Vecoli, Williams and Degoldi as well as the respondent, all who denied that the respondent had used the words. However, we think that we should find that the matter was not determined and this amounts to an error in the decision making process which should be corrected on appeal.

[20] We turn then to determine this issue. Mr Degoldi said in relation to this:

"And you have said that he said words to the effect of fucking bitch. I want to ask you about some other expressions that it was being suggested that he used and I will ask you about them each in turn. Did he say I am the only good root she will get?---No.

And there was one other one, if you would just pardon me a moment. And did he say get the bitch on her back?---No.

From what you can recall, was what he said of a sexual nature?---No, I don't think it was of a sexual nature, no.

And once in the room, did Mr Markham go outside of the room and knock on Ms Barton's door?---No." [transcript PN579-584 before Blair C 30 April 2002]

"Now, I put it to you that during the course of that night, the words I am the only good root she will get were said?---No.

Are you saying they weren't said or you don't recall?---No, I am saying it wasn't said.

And I put it to you that the words she can put her mouth around this were said?---No.

And let me into her bed?---No." [transcript PN613-616 before Blair C 30 April 2002]

"And you say that you cannot recall or he didn't say words to the effect of put your mouth around this and get her on her back and things like that?---Yes.

But you can recall - are you saying that he didn't say it or you can't recall him saying it?---Well, I am saying he didn't say it.

He didn't say it?---No." [transcript PN642-644, before Blair C 30 April 2002]

"Did he say any of the following phrases, `Get the bitch on her back. It is the only good root she will ever get. Get me into her bed', or `get her lips around this'?---No, I don't recall any of that." [transcript PN686, before Blair C 30 April 2002]

"And during the course of that night words to the effect of I am the only good root she will get were used, weren't they?---No.

And words like she can put her mouth around this were used, weren't they, and words like let me into her bed were used, weren't they?---No." [transcript PN724-725, before Blair C 30 April 2002]

"Right. You can't tell me that and you couldn't recall about the certain things that the manager had done or said but you are pretty confident that Mr Markham didn't say, `Get the bitch on her back, the only good root she will ever get. Get me into her bed. Get her lips around this'?---Well, I am sure I would have remembered if any of that was said.

Right?---It is something I don't think you would forget." [transcript PN724-725 and 759-760, before Blair C 30 April 2002]

"Now, I want to ask you about some specific words that is suggested that Mr Markham may have said. Now, did he say, `I am the only good root she will get'?---No.

And did he say, `Get the bitch on her back'?---No." [transcript PN786-790 before Blair C on 30 April 2002]

"And `She can get fucked'?---I don't know if he said that. I recall, `Fuck the bitch', `Fuck the slut'. That is the words I recall.

Right, okay. And `She has had her chance'?---No.

I put it to you that during the course of that night words to the effect of I am the only good root she will get were used?---I don't recall that.

And `She can put her mouth around this', do you recall that?---No.

And `Let me into her bed', do you recall that?---No." [transcript PN809-814 before Blair C on 30 April 2002]

[23] We have also examined the evidence of Mr Holman the proprietor of the National Hotel Motel in Bendigo whose evidence was said by Graincorp to be consistent with that of Ms Barton. Mr Holman was adamant in his cross-examination that the respondent had said to him words to the effect that he (the respondent) had "given her two chances to get into bed with him". However that evidence does not amount to an admission to Mr Holman that the respondent used the words we are considering. It does not amount in our view to sufficient corroboration of the evidence of Ms Barton. We are of the opinion that the evidence does not establish that the words were used. Accordingly, in so far as sexual harassment or sexual insults are concerned this matter turns on the use of the words "fucking bitch", "fuck the bitch", "fucking slut" and "get fucked".

[24] The second issue on which it was alleged that Blair C made no finding was the question of whether the respondent was alive to the possibility that Ms Barton may be in her room and was indifferent as to whether she was there or not. The respondent's evidence was this:

"And as you were walking past, you banged on the door loud, firmly, and you said words to the effect you could have picked me up, you bitch?---Yes.

And you didn't know whether or not Ms Barton was in the room at that time, did you?---No, I definitely didn't know, no.

And you didn't care whether or not she was in the room, did you?---Of course I cared. Yes, I did, your Honour." [transcript PN377-379 before Blair C 30 April 2002]

"So you didn't care, you didn't care that she may have been in the room next door, did you?---When I said that was when - under the assumption she wasn't in the room. If he had said, Joey - sorry, your Honour.

And each time you banged on the door, Mr Williams went off at you, didn't he?---No, only really the once or twice he went off." [transcript PN393-394 before Blair C 30 April 2002]

"Yes, and there was some discussion about the fact that you could have had the interconnecting door open?---Yes.

And there was some discussion about, you know, needing the keys to have the interconnecting door open?---Yes.

Now, do you remember at some stage the proprietor of the hotel coming into the room?---Yes.

And he told you that Naomi Barton was downstairs in tears?---Yes.

And you said fuck the bitch?---I said she had three chances to work this out.

Well, you said she can get fucked, didn't you?---And then I said, yes, well, fuck her. I said she had three chances to work it out.

You had no remorse for the fact, when you found out that she had been in the room next door, did you?---At that stage, no.

Because at that stage you did not care that she was in the room next door, did you?---Yes, I cared.

I am putting it to you that had you known that Ms Barton was in the room next door, you would have engaged in the same conduct?---Definitely not, your Honour.

But when the hotel proprietor told you that she had been in the room next door, you said she can get fucked?---It was too late then, wasn't it? It was done.

So you didn't care that she had been in the room next door?---I did care.

You care now, do you?---Yes, I do, I really care a lot.

Because you have paid a price for it, haven't you?---I care. The next morning when I woke up, I was shattered. I felt for her, I felt for her.

Because you accepted that she would have found your conduct intimidating?---Yes." [transcript PN462-475 before Blair C 30 April 2002]

[25] In respect of the other witnesses Mr Degoldi said:

"You didn't know whether or not Ms Barton was in that room, did you?---Well, as far as we knew, it was vacant.

Who told you it was vacant?---I forget who said it was vacant, but I don't know." [transcript PN628-629 before Blair C 30 April 2002]

[26] Mr Williams suggested in cross-examination:

"And it is fair to say that a young woman alone in a room next door would have found that intimidating?---Yes, but we didn't know she was there until the manager walked in to be truthful.

You didn't know that she was there but you didn't know that she wasn't there either, did you?---That is correct." [transcript PN706-707 before Blair C 30 April 2002]

and at paragraphs 712 and 713 Mr Williams gave the following evidence:

"Yes. And you had some concern that she might be in the room, didn't you?---Well, I never knew if she was or she wasn't. I would have - yes, I don't know. I didn't know if she was there or not.

And Mr Markham said, `She is probably not in there anyway'?---Yes." [transcript PN712-713 before Blair C 30 April 2002]

[27] Mr Vecoli's evidence was to the following effect:

"Yes, all right. What was your understanding of where Ms Barton was?---No-one was too sure. We thought she was either in the room next door or she was at her sister's. No-one was very sure.

Did Mr Markham say anything to indicate where he thought she was?---At one stage when he said, `Fuck the bitch, she is at her sister's anyway', I recall him saying that.

Had there been any discussion about her going to her sister's?---There was some, yes, but no-one was too sure." [transcript PN783-785 before Blair C 30 April 2002]

[28] We conclude on the evidence that the respondent was indifferent as to whether Ms Barton was in her room or not. We shall deal later with the question of whether the words in question which Blair C found the respondent did use were in fact said to Mr Williams but leaving that issue aside we cannot understand why the respondent would keep reiterating the phrases he used for the period of time which he used them, if he was sure that Ms Barton was not in the room. Put shortly, whilst we conclude on the evidence that the respondent did not definitely know Ms Barton was in the room, we find he was indifferent to whether she was or was not. He did not know she was not and moreover he did not care. We are fortified in this conclusion by the evidence of Mr Holman. We have indicated earlier in this decision that while Mr Holman's evidence does not support all the words of a sexual nature alleged by GrainCorp to have been used, it does indicate that the respondent said: "It's all her fault - I've given her two chances to get into bed with me". This provides some support for the fact that the respondent thought Ms Barton must be able to hear him. Otherwise their use makes no sense. Why say he has given her opportunities to go to bed with him if he thought she could not hear him because she was not in the room. At the minimum Mr Holman's evidence provide support for the fact that the respondent was indifferent as to whether Ms Barton heard him or not. We add that we cannot see that Mr Holman who was a stranger to all would not tell the truth to the best of his recollection about the words used.

[29] We turn then to the next attack on the decision raised in appeal grounds 3 - 8, 10(b)-(d) and 11(c)-(f) which essentially attack Blair C's finding that there was no sexual harassment as defined in the Sex Discrimination Act or the Equal Opportunity Act (Victoria). We have set out his reasons for reaching that conclusion earlier in this decision and we will not repeat them. Sexual harassment is defined in paragraph 28A of the Sex Discrimination Act and GrainCorp's outline of submissions contained the following:

"16. `Sexual harassment' is defined in s 28A of the SD Act and s 85 of the EO Act, in relevantly identical terms. In Johansen v Blackledge Meats [2001] FMCA 6; (2001) 163 FLR 58, [83] Driver FM identified the following relevant elements of the definition:

· the person harassed is or would be offended, humiliated or intimidated by the conduct; and

· having regard to all the circumstances, a reasonable person would have anticipated that the person harassed would have felt this way.

See also Cooke v Plauen Holdings Pty Ltd [2001] FMCA 91, [23]. The Commissioner correctly identified these aspects of the definition at [22].

17. The statutory definition of sexual harassment was relevant to the Commissioner's task in determining this application for two reasons:

(a) First, ss 28A and 28B of the SD Act, and ss 85 and 86 of the EO Act, set standards of conduct that bind both the Appellant and the Respondent. A contravention of those section by the Respondent is unlawful, and the Appellant is potentially vicariously liable for that contravention: s 106, SD Act and ss 102 and 103, EO Act. Unlawful conduct by the Respondent, that also exposes the Appellant to liability, can be a valid reason for termination.

(b) Second, s 93 of the WR Act directs the Commission to take account of the principles embodied in the SD Act relating to discrimination in employment, which include ss 28A and 28B of the SD Act." [sic] [exhibit MFI 1]

[30] GrainCorp submitted that generally conduct of a sexual nature covered a wide range of circumstances including, as well as the obvious, instances of:

· touching and requests for sex, gender based insults and taunting;

· referring to the complainant as a "fucking wog bitch", "I'll fix this wog bitch", "I'll give her plenty of work", "fuck you woman" and "I'll bring you to your knees";

[31] It was argued that the EEO Guidelines of GrainCorp included examples of conduct which could amount to sexual harassment.

[32] GrainCorp concluded "In this case, the words were spoken by a very drunk man, loudly, late at night, in company with other men, while he was banging on the door of a lone woman's hotel room". [exhibit MFI 1, para 20] It was submitted that in this context Blair C was wrong to find that the words it alleges were spoken did not amount to conduct of a sexual nature. Moreover, it was submitted that conduct not directly aimed at a person can be conduct which is not welcome if that person becomes aware of it, Johanson v. Michael Blackledge Meats. It also argued that the intention can be irrelevant in determining the issue of whether a particular conduct amounts to sexual harassment and that this is specifically mentioned in GrainCorp's EEO Guidelines. In summary it was submitted that Blair C had not applied the correct test.

[33] HREOC also made a submission in this regard as follows:

"12. HREOC does not submit that the words found by the Commissioner to have been spoken (`fuck the bitch', `fucking bitch' and `fucking slut') were, in the specific context in which the Commissioner found them to have been uttered, `of a sexual nature' such that they would constitute sexual harassment. However, these words could, in a different context, constitute sexual harassment. [It is noted that the NSW Equal Opportunity Tribunal in O`Callaghan v Loder (1984) EOC 92-023, albeit prior to the direct legislative prohibition on sexual harassment, identified `gender-based insults or taunts' in its inclusive list of `sexual conduct'.] Furthermore, the line between such expressions and others which would constitute language `of a sexual nature' may be a fine one and, in approaching such expressions, an acknowledgement of sex-based language and the context of power in gender relationships is important. HREOC submits that, although the Commissioner may have been correct in his ultimate conclusion regarding sexual harassment, his reasoning failed to acknowledge this context and the significance of sex-based language.

13. HREOC submits that the Commissioner erred in trying to draw parallels with expressions such as `fuck the bastard' when directed towards a male. This expression differs relevantly from the expressions found to have been used in the present case for a number of reasons.

14. The first is that `fuck the bitch' and `fucking slut' are sex-based insults. `Slut' carries a clear sexual connotation, and both `bitch' and `slut' are, on their face, gender-specific terms. The same is simply not the case with the expression `bastard' which is not gender-specific (whether or not it may be directed more frequently to males than females).

15. The second is that derogatory or abusive terms spoken by a male to a female can be qualitatively different to the same abusive terms spoken by a male to a male, a female to a female or a female to a male. [Similarly, racial taunts carry vastly different meanings depending upon context - `white bastard' cannot necessarily be equated with `black bastard', and the difference between the terms will depend upon the context in which they are used.] By way of example, a woman calling a man a `bitch' or a `slut' would not necessarily carry the same meaning or impact as a man using the same terms in reference to a woman.

16. It is also relevant to consider the power dynamics that exist in male/female relationships in the context of the work environment. Historically the workplace has been a male domain, organised consistently with male needs and interests. [See Aruna Rao, Rieky Stuart and David Kelleher Gender at Work: Organizational Change for Equality, Kumarian Press, Hartford, 1999 page 5.] These organisational arrangements `create countless contexts of power inequities in which men occupy the majority or the only positions of power and authority'. [Paula J Dubeck and Kathryn Borman (eds) Women and Work: A Handbook, Garland Publishing, New York, 1996 page 323.] While not advocating a one-dimensional analysis of power relations in the workforce, HREOC submits that this power differential between the sexes continues to exist in many workplaces to the detriment of female workers.

17. HREOC submits that the combination of these factors means that not only is it incorrect to equate `fucking bitch' with `fucking bastard', but the error is compounded by ignoring the context of the comments - that they are spoken in a work-related environment by a man about a woman.

18. While this error may not, in HREOC's submission, have resulted in the Commissioner reaching the wrong conclusion in relation to the particular words spoken in this case, the approach should not be followed in considering other expressions or the same expressions in different contexts. The use of such expressions may, for example, contribute to a hostile or `sexually permeated' work environment. In such a context the use of the expressions may be, of themselves, acts of sexual harassment. [See Djokic v Sinclair & Central Queensland Meat Export Co Pty Ltd [1994] HREOCA 16 (20 July 1994),

http://www.austlii.edu.au/au/cases/cth/HREOCA/1994/16.rtf, Zoiti v The Cheesecake Factory Pty Ltd [1993] HREOCA 12 (7 June 1993),

http://www.austlii.edu.au/au/cases/cth/HREOCA/1993/12.rtf; Rutherford v Wilson & State of Queensland [2001] QADT 7 (21 May 2001),

http://www.austlii.edu.au/au/cases/qld/QADT/2001/7.rtf at p.51 and Horne & Anor v Press Clough Joint Venture & Anor (1994) EOC 92-556. Repeated use of language such as `slut' may also constitute sexual harassment; see Edwards v Bourke Bowling Club Limited [2000] NSWADT 31 (31 March 2000), http://www.austlii.edu.au/au/cases/nsw/NSWADT/2000/31.rtf at [66] and [101].] As developed below, sex-based insults may also constitute or contribute to an environment that discriminates on the basis of sex." [exhibit MFI 2]

[34] HREOC also submitted that there were a variety of situations where sexual harassment is committed in the absence of the person harassed but the person harassed becomes aware of such conduct and gave the following example:

"There are a variety of situations in which HREOC would submit sexual harassment is committed in the absence of the person harassed but the person harassed becomes aware of such conduct. For example, employee X should be found to have sexually harassed employee Y if X makes sexually explicit comments about Y to co-employees in Y's absence. Similarly, it should properly be found that it is sexual harassment if X distributes sexually explicit material (physically or electronically) concerning Y to co-employees (excluding Y) or if male employee X displays sexually explicit photographs of Y in the men's toilets to which Y has no access. [Such acts would also contribute to a hostile or `sexually permeated' environment]" [exhibit MFI 2, para 21]

[35] HREOC also submitted that it was in error to find that there needed to be an intent to harass and referred to the decision in Johanson v. Michael Blackledge Meats. It also submitted that it was not necessary for a person to feel offended or that the person actually hear the comments made. It was suggested by HREOC that a reasonable person may anticipate that their comments will be overheard or relayed by fellow employees or bystanders. Finally, HREOC submitted that the Commission should have regard to the broader context of equal opportunity.

"In my submission, the Commissioner clearly took into account the seriousness of the conduct. I have already taken the Commission to the expressions of disapproval of the Commissioner and the fact that he placed Mr Markham on a final warning. Reference was made to the expressions used by Mr Markham - that is, that he admitted - they being in particular `fucking bitch' and `fucking slut', and it was said that `fucking slut' or the use of the word `slut' clearly meant that it constituted sexual harassment.

Now, interestingly, HREOC did not agree with that approach from GrainCorp. They conceded that, given the findings of the Commissioner, it did not amount to sexual harassment, although as was put by my learned for HREOC, it did amount to sex-based insult and, therefore, as I understand it, sexual discrimination. That argument about it being sex discrimination is not one that has been run by GrainCorp in the proceedings below. It has always been put on the basis of it being sexual harassment. [sic]

But the difference of opinion between my learned friends as to whether or not those expressions amount to sexual harassment is instructive because it shows that different people can view those expressions in different ways. I must say your Honour, Senior Deputy President Polites raised the expression that you heard used at the football. That was precisely the example that my instructor and myself had thought of in relation to, well, males are called - some of those expressions are used in respect to males.

It is submitted that it is not out of the ordinary for the expression `bitch' and even `slut' to be used in respect to males. It is probably unusual for the expression `slut' to be used in respect to males but we take issue with our learned friend to say that is peculiarly apposite or only applies to females and therefore that constitutes sexual harassment. The difference between my learned friends suggests that immediately; that is, that it is very difficult with some of these expressions to say that by their nature they constitute sexual harassment." [transcript PN371-374]

[37] We have considered all that was put to us in this regard. While in certain contexts we would, as Blair C did, equate the words "fucking bitch" with the words "fucking bastard", it is impossible in our view to equate the words "fucking slut" with anything other than a gender based insult. We think in the context in which it was used "fucking bitch" is of the same character. Moreover, it is apparent that the respondent's conduct went on for some twenty minutes and that the words were used more than once. We find that the words were sexual in nature and were capable of constituting both sexual harassment and gender based insults. The question is did they in the context in which they were used amount to sexual harassment. We are of the view that they did. Essentially the respondent's explanation is that the words were used to Mr Williams who had been telling him to stop the invective against Ms Barton. We find this explanation inherently improbable. Firstly, the respondent must have used the words prior to Mr Williams attempting to prevent him from continuing to use them. There is certainly nothing in the evidence to suggest any of the people in room 8, other than the respondent prompted a discussion of Ms Barton. Thus, on the first occasion he used them he was not addressing the words to Mr Williams. We think it unlikely that he ever did. Although we accept Mr Williams' evidence that he tried to stop the respondent, we think that the respondent continued on unabated and paid no regard to Mr Williams' attempts to stop him. We conclude on balance that the respondents conduct indicated a deliberate intention to intimidate Ms Barton. We have already concluded that the respondent was indifferent as to whether Ms Barton was in her room or not or whether she could hear him or not. In these circumstances, we think that the conduct amounted to sexual harassment in the sense used in Johanson v. Michael Blackledge Meats. In that case a bone shaped like a penis was sold to a customer who complained. It was found that the sale was unintentional but the transaction was still held to amount to sexual harassment.

"89. . . . It is clear that there have been instances where employers have been found liable for harassment of employees in circumstances where offensive posters or other offensive material have been left around the workplace and seen by the complainant. In some instances this material was on display prior to the arrival of the complainant in the workplace. In G v R and the Department of Health, Housing and Community Services (unreported, HREOC, 23 August 1993) a toy in form of a jack-in-the-box with a penis substituted for the normal figure was put on the desk of the complainant's husband. Other employees passed comments about the toy but these were not directed at the complainant. The complaint failed for other reasons but Sir Ronald Wilson found that the conduct complained of could constitute sexual harassment of the complainant even though she was not the target. Clearly, it is not necessary that the complainant be the conscious target of the offensive conduct. Sexual harassment can occur where the conduct is directed at a limited class of people (eg employees). I see no material difference in the case of conduct directed at customers or potential customers. Once a person chooses to engage in conduct of a sexual nature in which another person, whether the intended target or not, who has not sought or invited the conduct, experiences offence, humiliation or intimidation and, in the circumstances, a reasonable person would have anticipated that reaction, the elements of sexual harassment are made out.

90. An additional factor here is that the person who sold the bone, Mr Finlay, did not intend to sell anything other than an ordinary bone. But Mr Finlay was not the only employee involved and the act of sale of the bone was not the only relevant act that occurred in the shop. Ben Lithgow intentionally created a phallic object on the premises with the assistance of Ted Brown. After showing the object to his friend, Ben Lithgow placed it in the cool room with all of the other bones in such a way as it could not be readily distinguished from ordinary bones. It follows that while the sale of an offensive object was not a conscious act by the respondents or their employees the creation of the object and its retention on the premises in circumstances that gave rise to a reasonable likelihood of such sale were deliberate acts of an employee. When one examines all of the circumstances it is clear that a course of conduct was engaged in which exposed Ms Johanson to the risk of obtaining from the shop an offensive object that she did not want and which caused her serious offence. I conclude, therefore, that the elements of harassment for the purposes of s.28A and s.28G have been made out." [(2001) FMCA 6 (1 March 2001)].

[38] We are again fortified in this conclusion by the evidence of the hotel proprietor, Mr Holman. Mr Holman's evidence was that he concluded that Ms Barton may not have been safe to spend the night in room 7 and that Ms Barton had been obviously upset by the respondent who was at the time not drunk. (This last point is consistent with the respondents own evidence.) We think that all of these factors point to a situation where sexual harassment and intimidation occurred and at least one independent observer was not persuaded it may not occur again.

[39] It remains for us to deal with Mr Staindl's argument that contrary to Blair C's finding there was not a relevant connection between the conduct of the respondent and his employment. We reject that submission. Both the respondent and Ms Barton were attending a conference sponsored by GrainCorp. While there may have been no direct evidence that GrainCorp was paying all of the accommodation expenses, there is clear evidence that they "sponsored" the training and paid for the dinner on the evening on which the events occurred and also for some of the alcohol consumed at that dinner. We are prepared to assume given the purpose of the training referred to in Ms Barton's evidence, that GrainCorp would have paid for the accommodation expenses of the conference. While the line between private conduct and conduct in connection with employment is not always easy to draw we do not think that this case is on all fours with the Appellant v Respondent [(1999) 89 IR 407] which refers to Hussein v Westpac Banking Corporation [(1995) 59 IR 103]. It is true that only in exceptional circumstances will an employer be given an extended right of supervision over the private activities of employees. However, in this case all of the employees were at a conference being paid for by GrainCorp and were put in a situation of proximity to each other as a result of this factor. Moreover, unlike Appellant v Respondent there was nothing passing between the respondent and Ms Barton which indicated that any form of acquiescence in being together led to the conduct which occurred. We think that Blair C was not in error in finding that the respondent's conduct on the night in question was not of a private nature.

[40] In all of the circumstances, we find that the respondent's conduct amounted to sexual harassment and verbal intimidation of Ms Barton and was conduct which in our view warranted termination. We acknowledge that the respondent did apologise to Ms Barton the next day but in our view by then the damage had been done. We hold GrainCorp acted reasonably in conducting its investigation. We have consider the other matters referred to in s.170CG(3) and we determine Graincorp acted reasonably in determining to dismiss the respondent.

[41] We uphold the appeal, quash the decision of Blair C and find the termination of the respondent by GrainCorp was not harsh, unjust or unreasonable.

M. Richards of Counsel on behalf of GrainCorp Operations Limited.

D. Staindl of Counsel on behalf of the respondent.

J. Hunyor on behalf of the Human Rights and Equal Opportunity Commission (intervening).

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