Hunt v Rail Corporation of New South Wales

High Court of Australia|2011-10-18

REasons for decision 1J. Needham SC, Deputy President; N. Hiffernan, Non-Judicial Member; J. McClelland, Non-Judicial Member:- 2Ms Catherine Cooper made a complaint to the President of the Anti-Discrimination Board on 26 November 2010. In her complaint she said that she was sexually harassed and discriminated against on the basis of her sex in the context of her employment. She named as the persons responsible as Mr Colin Locke, the second respondent, and their mutual employer, then known as the Western NSW Local Health Network (formerly the Greater Western Area Health Service, and now known as the Western NSW Local Health District - to be referred to in this decision as the LHN, or Local Health Network), the first respondent. 3The complaint was unable to be resolved by way of conciliation, and on 4 April 2011 the applicant requested that the matter be referred to this Tribunal. 4The matter came on for hearing in Orange (after a previous vacation of hearing dates) on 17 and 18 October 2011. At the hearing it was noted that the complaint which had been referred to the Tribunal was one of sexual harassment only and that the discrimination case was not to be maintained at the hearing.

The conduct complained of 5Much about the incident giving rise to Ms Cooper's complaint is non-controversial. She alleges, and it is admitted by all parties, that on 13 October 2010 she was attending a staff training day. Mr Locke was also attending that training day. She and Mr Locke had been colleagues for some time and also, to some extent, friends. At the conclusion of the training, and prior to a dinner, Mr Locke handed Ms Cooper a folded piece of paper. She says that she read it later in her hotel room. 6There is some controversy about what was said when she was handed the paper, and the circumstances in which she was given it. The varying versions will be dealt with below. 7The paper contained extremely sexually explicit material, with no images. It was printed on a blank sheet of paper and it was not immediately clear whether it was a communication originally intended to be for Ms Cooper from Mr Locke or not. It appeared to be a reprint of part of an email as it commenced with "Subject:" but there was no indication of who had written it, nor of to whom it had been written. 8It is unnecessary to repeat the content of the note in this decision due to its graphic nature. Suffice it to say that the note describes a series of actions of a sexual nature proposed to be done by a male to a female. Whether the actions proposed are to occur within an existing, consensual sexual relationship is not immediately clear, but on a considered reading it appears that that it was written within such a context. No names are used. 9After reading the note, Ms Cooper attended the Orange Police Station as she was fearful of Mr Locke's actions in giving her the paper and unsure of how he would act in future. The police, rather surprisingly in the context of such a complaint, asked her to speak to Mr Locke to ask him to come to the police station. Ms Cooper did so at the seminar the next morning, and Mr Locke attended at her request. 10The matter was reported to her supervisor the day after the incident, on 14 October 2010, when she attended at her supervisor, Mr Clarke's office. She was interviewed by management representatives of the LHN on 18 October 2010.

The legislative basis for these proceedings 11Ms Cooper complains:- a) against Mr Locke; on the grounds of sexual harassment in employment (s 22A and 22B(6) of the Anti-Discrimination Act 1977 ("the Act")); and b) against the Local Health Network, on the basis of its vicarious liability for the actions of Mr Locke pursuant to s 53 of the Act 12The relevant sections provide:- 22A Meaning of "sexual harassment" For the purposes of this Part, a person sexually harasses another person if: (a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the other person, or (b) the person engages in other unwelcome conduct of a sexual nature in relation to the other person, in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated. 22B Harassment of employees, commission agents, contract workers, partners etc (1) It is unlawful for an employer to sexually harass: (a) an employee, or (b) a person who is seeking employment with the employer. (2) It is unlawful for an employee to sexually harass a fellow employee or a person who is seeking employment with the same employer. (3) It is unlawful for a person to sexually harass: (a) a commission agent or contract worker of the person, or (b) a person who is seeking to become a commission agent or contract worker of the person. (4) It is unlawful for a commission agent or contract worker to sexually harass a fellow commission agent or fellow contract worker. (5) It is unlawful for a partner in a partnership to sexually harass another partner, or a person who is seeking to become a partner, in the same partnership. (6) It is unlawful for a workplace participant to sexually harass another workplace participant at a place that is a workplace of both those persons. (7) It is unlawful for a member of either House of Parliament to sexually harass: (a) a workplace participant at a place that is a workplace of both the member and the workplace participant, or (b) another member of Parliament at a place that is a workplace of both members. (8) It is unlawful for a workplace participant to sexually harass a member of either House of Parliament at a place that is the workplace of both the member and the workplace participant. (9) In this section: place includes a ship, aircraft or vehicle. workplace means a place at which a workplace participant works or otherwise attends in connection with being a workplace participant. workplace participant means any of the following: (a) an employer or employee, (b) a commission agent or contract worker, (c) a partner in a partnership, (d) a person who is self-employed, (e) a volunteer or unpaid trainee. (10) Without limiting the definition of workplace, the workplace of a member of either House of Parliament is taken to include the following: (a) the whole of Parliament House, (b) any ministerial office or electoral office of the member, (c) any other place that the member otherwise attends in connection with his or her Ministerial, parliamentary or electoral duties. 53 Liability of principals and employers (1) An act done by a person as the agent or employee of the person's principal or employer which if done by the principal or employer would be a contravention of this Act is taken to have been done by the principal or employer also unless the principal or employer did not, either before or after the doing of the act, authorise the agent or employee, either expressly or by implication, to do the act. (2) If both the principal or employer and the agent or employee who did the act are subject to any liability arising under this Act in respect of the doing of the act, they are jointly and severally subject to that liability. (3) Despite subsection (1), a principal or an employer is not liable under that subsection if the principal or employer took all reasonable steps to prevent the agent or employee from contravening the Act. (4) For the purposes of subsection (1), the principal or employer of a volunteer or unpaid trainee who contravenes Part 2A is the person or body on whose behalf the volunteer or unpaid trainee provides services.

The applicant's case 13Ms Cooper, in addition to the material provided to the Anti-Discrimination Board (the report of the President is Ex A), swore an affidavit on 14 June 2011 (Ex B) and tendered:- a) a report of Margaret Shearer, her treating psychologist dated 10 October 2011 (Ex C); b) an affidavit of Jillian Duclos, sworn on 15 June 2011 (Ex D); c) an extract from diary kept by Donna Stanley (Ex E); and d) a letter from Ms Cooper to Donna Stanley (Ex F). 14Ms Cooper said that prior to 13 October 2010 she had been a work colleague of Mr Locke. They had worked together since about 2005 and were both part of the same Health Team which had eight members over the Central West. During her time with their mutual employer, Ms Cooper said she had received various policies and Codes of Conduct, but she "just signed and returned the form, I did not read them". 15Ms Cooper and Mr Locke had been friendly which included some socialising out of work hours and Christmas gifts. Ms Cooper said that friendly relationship ended in January 2009 when Mr Locke sent her a "disturbing email" and she terminated the social aspects of their working relationship. However, under cross-examination she admitted that she had his home and mobile phone numbers, had telephoned him at home and on his mobile, shared meals with him, and shortly before October 2010 she, at his invitation, had attended the Bathurst Motor Races. 16Prior to the incident of the note, Ms Cooper agreed that Mr Locke had been "a gentleman" in all his dealings with her. 17On 12 October 2010 Ms Cooper telephoned Mr Locked and asked him to accompany her to the training day (also referred to as a forum) for reasons of support, since Ms Cooper had concerns about some workplace issues she had had previously. A person who will be referred to in this decision as Mr Z (as he was not represented in these proceedings, and his conduct was the subject of unsubstantiated allegation and rumour during the hearing) was chairing the forum. Ms Cooper says she made a humorous, but slightly disparaging, remark, about Mr Z's lack of fluency as a speaker. She denied saying that Mr Z was "a creep", as alleged by Mr Locke. She was aware that Mr Locke had previously mentioned that he did not like Mr Z. 18After the forum ended, Ms Cooper spoke to one of the speakers about his presentation. When she finished, she turned to find Mr Locke waiting for her. She and Mr Locke were both standing up. He gave her the note, which was folded so that the words of which were not visible to her, saying "take this and read it. You'll know what [Mr Z]'s really like now". She put it in her pocket but did not ask any questions. She says she was not in any way warned as to the explicit nature of the words of the note. She denied that Mr Locke warned her it was "graphic". 19When she got back to the hotel to prepare to go to the dinner, she read the note. She said that she felt physically ill. At about 5.30 pm she rang Mr Locke, and had a brief conversation with him, in which she said that she was "disgusted" and "horrified" at the contents of the note. In her cross-examination, Ms Cooper added that Mr Locke had said to her in this telephone conversation, "If you read this back slowly, you will see how much pleasure [Mr Z] got out of writing it". This conversation did not appear in her evidence in chief, and while it is repeated in some of the later documents tendered in the case, it did not appear in any contemporaneous documents (including her report of the incident to her employer). The Tribunal is of the view that this was not something that Mr Locke said to Ms Cooper. 20Ms Cooper attended the local police station shortly thereafter, and told the constable who spoke to her that she was "quite frightened" by the note given to her by Mr Locke. She made no mention of the "pleasure" comment. The constable asked her to tell Mr Locke "to come to the police station tomorrow". The next day she "put on a brave face and pretended that Mr Locke did not scare" her and told him to go to see the police. 21Ms Cooper said that at all times she assumed the note was written by Mr Locke and intended for her. It was, she said, completely beyond anything she had read before, even taking into account her work experiences in mental health and drug and alcohol health care. She said at the hearing that she at all times believed that Mr Locke was the author of the note, and that he gave it to her as a kind of sexual overture. Ms Cooper maintained this stance in the face of evidence which appeared to contradict it - as to which, see the discussions below. 22Later on the morning of 14 October, Ms Cooper reported the incident to Mr Clarke, her supervisor, and she met him at his office at about 4 pm. Mr Clarke interviewed her, said "I'll act on it straight away" and 15 October 2010 wrote a letter to his supervisor, Mr Fahy, which letter was signed by Ms Cooper as an accurate record. It is notable that no mention of the "pleasure" comment appears in this letter. 23Ms Cooper attended a meeting with Mr Fahy, Mr Clark and Ms Anthony, who was the assistant to the manager of the Mental Health Drug and Alcohol for the region, on 18 October 2010. She participated in an interview, of which a transcript was in evidence, and was advised that "Human Resources would be investigating the matter further". In that transcript Ms Cooper said that when she rang Mr Locke in the evening of 13 October, he told her that the note had been taken from Mr Z's laptop. There was a mention of the "pleasure" comment in the transcript (see p 5 of 5, p 13, Ex 1), although not when Ms Cooper first recounted the phone call to Mr Locke. There is, also the first mention that Ms Cooper thought that the email may have been written for her (see p 3 of 5, p 11, Ex 1). 24Her evidence was that she was concerned that nothing seemed to be done after that point, so she asked her solicitors to write to the LHN, which they did on 3 November 2010. She spoke to Mr Clarke, who told her that the investigation was proceeding but that it was being impeded by Mr Locke. 25In October or November 2010 Mr Locke sent her two emails, neither of which appeared to contain offensive material and which appeared to be emails sent to group addresses of which Ms Cooper was a member. However, Ms Cooper did not wish to receive emails from him and spoke to Mr Clarke on 5 November 2010. Mr Locke had been told not to contact her in his interview on 4 November 2010. 26Ms Cooper made a number of allegations about the "previous behaviour of Mr Locke", including a reference toa previous email in around January 2009 which was "demoralising to women and it was violent". She said she reported the matter to Ms Stanley. She said Ms Stanley reported to her on 18 February 2009 that Mr Locke had been spoken to about the email. Ms Cooper said she spoke about the matter to Ms Duclos, another colleague, who said that she had received unwelcome emails from Mr Locke. 27Ms Cooper said that at the next team meeting, Ms Stanley made a general announcement about emails at work being used only for work related content, and referred the attendees to the LHN policy for email use. Ms Cooper also referred to a "bullying and harassment policy" from management, which she was directed to read and return a signature that she had done so. She says that no further action had been taken by the LHN to enforce the acknowledgement of the policy. 28Ms Cooper relied on Ms Shearer's report to substantiate her claims that she had suffered stress after the incident involving the note given to her by Mr Locke. Ms Shearer said that by February 2011 Ms Cooper "was feeling stronger and rebuilding her confidence" and by the date of the report, October 2011, was "moving forward with confidence and strength in her life and work". Her Depression Anxiety Stress Scale showed depression and stress in the normal scale, and mild anxiety. 29The balance of Ms Cooper's evidence went to the alleged tendency of Mr Locke to send distressing or otherwise inappropriate emails. Ms Duclos, in her affidavit, said that most of the 20 or so non-work related emails she received from Mr Locke were jokes, however, "one was about how to prevent sexual assault when walking home. I was disgusted by this email and deleted it". Ms Duclos said she was sufficiently concerned by Mr Locke's behaviour that she raised it with Ms Stanley, the Trainees co-ordinator, and Ms Stanley agreed to raise the issue at a further meeting, which was done in around June 2009. 30Ms Stanley's work diary of 17 March 2010 discloses an entry "Colin Locke discuss email" but no further detail of this was provided. 31Ms Cooper alleges that the facts as alleged by her disclose that Mr Locke was guilty of sexual harassment, in that (using the words of s 22A) Mr Locke had engaged in unwelcome conduct of a sexual nature in relation to her,in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that she would be offended, humiliated or intimidated. It was alleged that the specific breach was of s22B (6) of the Act, which provides:- It is unlawful for a workplace participant to sexually harass another workplace participant at a place that is a workplace of both those persons. 32Ms Cooper took issue with the level of training and scrutiny of the staff, including Mr Locke, and the effectiveness of the LHN in ensuring that its employees knew of the provisions of the Code of Conduct. She admitted, however, attending training and having received the Code of Conduct. It was her case that the LHN did little, if anything, to prevent Mr Locke from doing what he had done, and that he was a person who should have been known to the LHN as having "boundary issues" with emails. She alleged that the LHN should have known he was likely to do something like this, and should have taken more steps to stop him. 33Ms Cooper gave her evidence forthrightly and clearly, although in some areas she was inclined to exaggerate her recollections. Her stance that Mr Locke had written the note himself, intending it for her, did not withstand scrutiny once the entirety of the evidence was given, and the context and wording of the note tends against that conclusion. Nor does her apparently later addition to the conversation she had with Mr Locke after first reading the note appear to be an accurate recollection. 34Overall, however, the Tribunal found her to be a witness of truth. She agreed with many propositions in cross-examination which may have been perceived to be against her interest, and while she was clearly stressed by being in the witness box, strove to give a good recollection in her answers. As we have said above, most of the facts were non-controversial and any partisan aspects of Ms Cooper's evidence do not affect this overall finding. 35A particular aspect of the evidence was whether Ms Cooper was warned that the content was "graphic". Mr Locke, as will be seen below, said he warned Ms Cooper; she said he did not. In the light of the most contemporaneous document (being the complaint to Mr Clark the next day), as well as in the transcript interview with Ms Cooper on 18 October, no mention of "graphic" was made. Mr Locke, in his interview, was not asked directly what he said when he passed the note to Ms Cooper, but his summary of what he said appears to align with Ms Cooper's version. In this respect, we prefer Ms Cooper's recollection over Mr Locke's allegation that he warned her of the graphic nature of the note.

Mr Locke's case 36Mr Locke participated in the ADB investigation (Ex A, tab 5) and swore an affidavit dated 20 July 2011 (Ex 2). He says he obtained the note he gave to Ms Cooper from a student at a university at which Mr Z taught; he was told that one of them had, in about 2007, borrowed a laptop belonging to Mr Z, had seen the email or document comprising the note, printed it off, and given it to him. He said he kept the note because he had concerns about Mr Z's activities as a lecturer and his "sleazy" ways. He said he had had the note for about 18 months. 37Mr Locke said that the topic of Mr Z and his personal and professional failings had been a topic of conversation between himself and Ms Cooper "many times". He recalls that Ms Cooper had called Mr Z "a creep". They had, outside of work, met for coffee and attended the Bathurst races together. Mr Locke considered her "a personal friend and ally". 38In the context of this relationship, Mr Locke felt that he had an alliance with Ms Cooper in that they both disliked and mistrusted Mr Z. 39Mr Locke agreed that he gave her the note, and that she did not read it at the forum but took it away with her. He says that at the end of the forum, he left the building for a number of reasons, including that he "intended to go to [his] car to collect a document that Ms Cooper may be interested in as it had to do with Mr [Z])" (see Ex 2). 40He says that he was seated at the table, and that at the end of the forum, he placed a copy of the note on the table between them, and said words to the effect:- "I have something here that was supposedly written by Mr Z. I understand it was found on his computer by a student. It is graphic and if you want to read it, it might be best that you take it home and see what this man is really like". He said that Ms Cooper replied, "I will take it home and read it later". He said:- "It is pretty crude stuff so beware". 41Mr Locke agreed that the note was folded and that the writing could not be seen when he gave it to her. He says that Ms Cooper picked it up from the table and took it with her. 42When Ms Cooper rang him that night, Mr Locke said (in Ex 2) that she did not raise with him the issue of the note, she merely said that she would "see him tomorrow". However, in Ex A, tab 5, Mr Locke said that Ms Cooper "stated that she was somewhat upset at the content of this document and would see me tomorrow". He agreed that he complied with the request to see the police about the note. He denies the statement attributed to him about the "pleasure" writing it would have afforded Mr Z. 43Mr Locke maintained that he gave her the note out of concerns at Mr Z's conduct and not with the intent to sexually harass Ms Cooper and that there was "no ... malice on my behalf towards Ms Cooper". 44In Mr Locke's interview, he describes handing over the note thus:- "It was at the end of the day. During the course of the date I was talking about [Mr Z] I had a piece of paper for a while and have been told this person was not to be trusted and to be aware of him. I wanted [Ms Cooper] to know this. She said she would read the piece of paper at home. [Mr Fahy]. What was on that piece of paper? [Mr Locke] It was pretty graphic describing sexual stuff". As can be seen, Mr Locke did not say that he described it to Ms Cooper as "graphic". 45Mr Locke was unable to recall any difficulties with emails towards Ms Cooper or Ms Duclos, or that Ms Stanley may have seen him in relation to emails. He generally agreed with the other evidence as to the course of the investigation into this incident and participated in an interview on 19 October 2010. He agreed that he had been told not to contact Ms Cooper, but admitted he may have done so inadvertently by sending emails to a group address which included her. After being contacted by Mr Clarke, he deleted her from the group emails. 46As a result of the investigation, Mr Locke was disciplined and informed that his employment "would be terminated should another similar incident arise against me" (Ex A, tab 5, p 37 of Ex A). 47Mr Locke called Ms Wallace in support of his case. She confirmed that she was one of the students who saw the note- then in document or email form - on Mr Z's laptop and downloaded it onto a zip drive. While there were difficulties with Ms Wallace's evidence, as it left as many questions unanswered as it solved, it appears to the Tribunal to be demonstrated to a reasonable level of satisfaction that Mr Locke was not the original author of the note. 48Mr Locke agreed that he had attended some training sessions but disputed that he had received adequate training. Like Ms Cooper, he admitted not to have taken much time to review the Code of Conduct despite having been a signatory to it and having agreed to abide by it on a number of occasions. He said he had "browsed through it and not read it properly". 49The Tribunal found a number of difficulties with Mr Locke's evidence, including the lack of any reasonable explanation as to why he held the note for some 18 months to 2 years, and chose to give such an inflammatory document to Ms Cooper in a public setting. Furthermore, there was no credible explanation as to why he gave the note to Ms Cooper. He variously said that "he wanted to see what could be done" about Mr Z, and to "get her input" on the note. He said he wanted to "seek her female views on the note in question", and to see if she thought there was a "broader protection issue" in relation to Mr Z and his conduct with students (the Tribunal notes once more that there was nothing in the evidence before us that substantiated any wrongdoing on the part of Mr Z, and he was exonerated from any breach of the Code of Conduct in relation to the note during the investigation into Ms Cooper's complaint). 50While the Tribunal accepts that Mr Locke was not, in fact, the author of the note, we are unable to come to any reasonable explanation as to why, in fact, the note was given to Ms Cooper. It is not to his credit that he maintained that Ms Cooper was, to some extent, the author of her own misfortune in "picking up [the note] of her own volition to take to her home to read". Nor is it to his credit that he took a document that, to his knowledge, was stolen from a laptop by a person to whom the note had not been originally written. The Tribunal finds that he did not, as Mr Locke alleged, warn Ms Cooper that it was "graphic", although perhaps little would have turned on a finding that he had so warned her. 51Most tellingly, Mr Locke's credit is not enhanced by his contention that he did not think it reasonable that Ms Cooper was offended by the note, and that he had never formed the view that providing the note was offensive. He said that he understood that it was explicit, but that he did not think of it in terms of any breach of the Code of Conduct. In his cross-examination by counsel representing his employer, he said that he felt he was acting on a personal level, and he had not been thinking of terms of his anti-harassment training. 52Mr Locke's solicitor who represented him at the hearing submitted that "the contents of the note were horrific", meeting the requirement of offensive content in ss 22A and 22B, but that the test of the reasonable person was not made out. It was further argued that the handing of the note to Ms Cooper was not "unwelcome conduct of a sexual nature" in circumstances where he was seeking to have her input on what action he should take in relation to the note.

The Local Health Network's case 53The LHN participated in the ADB's investigation (Ex A, tab 3), and provided evidence by way of affidavit dated 13 July 2011 from Mr Fahy (Ex 1) who also gave evidence orally. Mr Hutchings, counsel for the LHN, also tendered a number of documents going to the level of training provided to the unit in which Mr Cooper and Ms Locke worked, and which it was not seriously contested that they attended. 54Mr Fahy (who was at the time of the incident, and of the hearing, the Manager of the services in which Ms Cooper and Ms Locke were employed) gave evidence that in his view the LHN acted "swiftly" to deal with the incident of the note being handed to Ms Cooper. The parties were interviewed (along with Mr Z). On 11 November 2010 and in the light of the admission by Mr Locke that he had given the note to Ms Cooper, the LHN advised Mr Cooper that the allegation against him had been sustained. He was told that he was in breach of the NSW Health Code of Conduct, and that "appropriate disciplinary action" was taken. 55In its reply to the ADB (Ex A), the LHN said that it:- a) denied that it had authorised Mr Locke to behave in the way he did; b) required Mr Locke to abide by the Code of Conduct; c) provided Mr Locke with training to enable him to abide by the Code of Conduct; d) addressed the complaint promptly; and e) took disciplinary action against Mr Locke, who had no previous documented workplace performance issues. 56The LHN also said that it had apologised to Ms Cooper. 57Mr Fahy, in his affidavit, set out the actions taken in relation to the incident and annexed statements of the parties, meeting notes, documents showing the contact with Mr Z in relation to the incident, and correspondence with Ms Cooper's solicitors. 58The affidavit of Mr Fahy annexed the investigation report dated 3 November 2010, which identified the note as "pornographic material" and found that the incident was a "serious breach of s 3.1 of the Code of Conduct". That section reads:- "I understand that it is illegal to use official resources to intentionally created, transmit, distribute or store any offensive information, data or material that violates Commonwealth or State laws; Transmit, communicate or access any material that may discriminate against, harass or vilify colleagues ... I will not use official resources to display, access, store or distribute inappropriate or objectionable (non work related) material that may be offensive to others. I understand that this includes material that may be offensive to others. I understand that this includes material that depicts expresses or deals with matters of nudity, sexual activity, sex ... in a manner that a reasonable adult would generally regard as unsuitable". 59The action taken was a "first and final" warning letter to be sent to Mr Locke. That letter was sent on 11 November 2010. Ms Cooper was notified of the sustained complaint (but not of the precise nature of the disciplinary action) on 8 December 2010. He was also, in 30 March 2011, advised that he was not to approach Ms Cooper. 60The affidavit of Mr Fahy set out Mr Locke's employment history. He had been employed in 2002, and was provided with the relevant Code of Conduct on:- a) 1 August 2002; b) 16 September 2002 (of which Mr Locke affirmed receipt and agreed to be bound on 30 September 2002); c) 26 March 2007 (of which Mr Locke affirmed receiptand agreed to be bound on 15 June 2007); d) 1 July 2008 (affirmed by him on that date); and e) 23 July 2009 (of which Mr Locke affirmed receipt and agreed to be bound) on 23 July 2009. 61Mr Locke also undertook mandatory training during his employment with the LHN, including sessions on:- a) harassment and discrimination in the workplace on 10 April 2008; b) bullying and harassment in the workplace on 26 May 2008; c) the Code of Conduct on 14 October 2008 (conducted by Donna Stanley); and d) bullying, harassment and discrimination in the workplace on 26 March 2009. 62The LHN submitted that it did not authorise Mr Locke to undertake the conduct, and that it had done all that it could have done to ensure that each of its employees understood the Code of Conduct in relation to sexual harassment and that it had provided regular education and training, which it required Mr Locke to attend, discussing the employer's position on sexual harassment and bullying.

A breach of the Act by the Second Respondent? 63It is necessary to determine Mr Locke's liability, if any, under the Act in order to ascertain whether the employer is vicariously liable for his actions. Accordingly we will deal with the second respondent's liability first. 64In Sharma v. QS Pty Ltd t/as KFC Punchbowl (EOD) [2010] NSWADTAP 22, a case upon which Ms Cooper relied against both respondents, the Appeal Panel set out the matters that must be proved in order to substantiate a complaint of sexual harassment under s 22B(2) of the Act. At [13], the Appeal Panel said those matters were: "a) the comments and/or the conduct constitute an unwelcome sexual advance, an unwelcome request for sexual favours or unwelcome conduct of a sexual nature; b) the conduct is 'in relation to' Ms Sharma; c) Ms Sharma found those comments unwelcome; d) a reasonable person, having regard to all the circumstances, would have anticipated that Ms Sharma would be offended, humiliated or intimidated by that conduct (the 'objective test')." 65Mr Locke, by his solicitor, argued that while the contents of the note were "horrific" and it was "hard to imagine anything worse", giving Ms Cooper the note was not "unwelcome conduct of a sexual nature", given that it was given to her so that he could seek her input, either, in order to find some way of (it seems) harming Mr Z's career, or for some "broader protection issue". We have noted that we have been unable to ascertain Mr Locke's specific intent. Mr Locke, and consequently his solicitor, were unable to specify exactly what purpose Mr Locke had in providing Ms Cooper with the note beyond "seeking her input". However, it was submitted that in seeking her input on a document, Mr Locke was not engaging in "conduct of a sexual nature". 66It has long been established that exposure to pornographic images in the workplace can constitute a form of sexual harassment. Hooper v Mt Isa Mines Ltd (1997) EOC 93-879. See also Hunt v Rail Corporation of New South Wales [2007] NSWADT 152 where the placing of a pornographic magazine under the applicant's door was an incident of sexual harassment and in breach of the Act. Provision of a sexually explicit document does not differ significantly from a pornographic magazine or email, but for the lack of images. Given that Ms Cooper read the document (or at least the first part of it, as she said in her interview transcript), she was in fact exposed to the sexual nature of the document. 67In Sharma at [30], the Appeal Panel said:- "The term 'conduct of a sexual nature' is not defined in the AD Act. It is not wise to attempt an exhaustive definition as '... human inventiveness would almost certainly find other activities or approaches, equally unwelcome and unpleasant, which might then be denied the label of harassment': O'Callaghan v Loder [1983] 3 NSWLR 89 at 103. It is a matter for the Tribunal to determine whether the conduct is conduct of a sexual nature." 68The Tribunal is of the view that provision of the note, with its graphic descriptions of sexual acts in very explicit sexual language, must fall within the description of "conduct of a sexual nature". To say that the "conduct" was merely the giving of a letter misses the point that human beings who can read must, having read the note, have some understanding of its sexual content. Ms Cooper gave evidence that she was shocked and disturbed by the contents. We find that the provision of the note to Ms Cooper was "conduct of a sexual nature". 69The next matter is whether the conduct was "in relation to Ms Cooper". The giving of the note was to Ms Cooper and so that conduct was in relation to her. There can be no other interpretation put upon the uncontested evidence that Mr Locke gave the note to Ms Cooper. 70The third matter is whether Ms Cooper found the conduct unwelcome. We accept her assertion that she did find it unwelcome, when she got home and read the note. Mr Locke's version of the matter is that she willingly took the note to read it, and thus, it could not have been unwelcome. On Ms Cooper's version of what was said when she was given the note - which is confirmed by her report the next day to Mr Clarke - the giving of the note was unaccompanied by any warning of the explicit nature of the material. Even if Mr Locke had said, as we have found he did not, that it was "graphic", that is hardly enough for informed consent to read the note to have the effect of vitiating its unwelcome nature. 71There is a wealth of evidence - including her reporting the matter both to Mr Clarke and to the police - which goes to the fact that Ms Cooper did, in fact, find the conduct unwelcome. So much was clear from her recitation of her reactions in the witness box, and from her psychologist's letter. 72The final matter is "the objective test" - whether a reasonable person would have anticipated that Ms Cooper would be offended, humiliated or intimidated by the conduct. 73The Tribunal considers that this case is uncomplicated on the question of whether a reasonable person would be, at the very least, offended by the conduct. Even had Mr Locke warned her that it was "graphic", which we have found he did not, the terms of the note are so graphic as to be objectively highly offensive. There are a number of socially unacceptable words used in the text, although the tone of the text is somewhat arch (in contrast to the content of the note). In the context in which we have found the passing of the note to Ms Cooper took place, it is difficult to think how the conduct could not have reasonably been thought to be offensive. The provision of such a highly sexualised document, without context, and without explanation of its rather complicated provenance or a longer explanation of the opaque reasons for its provision, could reasonably be seen to be likely to offend. 74Ms Cooper said she was also humiliated and intimidated. The Tribunal is not required to go beyond a finding of one of the three matters set out in the "objective test". However, it seems to us that the note could reasonably be anticipated as being "humiliating", in that Ms Cooper may reasonably have felt humiliated by the provision of it. We are less sure of the objective intimidatory nature of the note, but the provision of graphic sexual descriptions could, it seems to us, not unreasonably be seen as intimidating given that they came, without context, from a co-worker with whom Ms Cooper had recently had a good relationship. The tendency of the note to be intimidatory would be stronger were it to have been the case that it supported Ms Cooper's contention that she was the intended recipient of the suggestions in it and Mr Locke was the author; however, that explanation does not survive scrutiny and in any event, the test is, as we have noted, an objective one. 75The Tribunal is of the view that the provision of the note to Ms Cooper meets the four tests as set out by the Appeal Panel in Sharma. As a result, the Tribunal finds that the conduct meets the statutory test of being sexual harassment and finds that Mr Locke has breached s 22B in providing the note to Ms Cooper on 12 October 2010.

Was the LHN vicariously responsible for Mr Locke's breach? 76Counsel for the LHN submitted that in order for Ms Cooper to prove that the LHN was liable under s 53 of the Act for the acts of Mr Locke, the LHN:- a) would have had to have authorised Mr Locke to engage in the conduct; or b) would have had to have failed to have taken all necessary steps to prevent the conduct. 77The LHN set out in great detail from its records the number of times that Mr Locke had been asked to commit to the then-relevant Code of Conduct and had attended training on bullying and harassment prevention. The affidavit of Mr Fahy annexed Power Point printouts of one seminar (although that particular seminar dealt more with bullying than with sexual harassment). The Code of Conduct was explicit that harassment (including sexual harassment) was not permitted (see cl 7.1 of the October 2005 Code of Conduct, as well as the portion excerpted above in par 58 and relied upon in the investigation report). 78The employer sought, at each re-employment or promotion of Mr Locke, that he sign up to the Code of Conduct. It also required that he attend training. 79Ms Cooper relied on Sharma (see above) in support of her submission that simply providing training and a Code of Conduct (in Sharma , it was a handbook) was not enough, and active steps had to be taken to ensure that employees were aware of their responsibilities. She said that those steps had not been taken. 80She also relied on the allegations that Mr Locke had committed some breaches of email etiquette previously and that action had been taken against him before by their joint employer. However, the details of the "action" taken were scant, and certainly there was nothing on Mr Locke's record to show that he had been disciplined or even investigated. Possibly as a result of the complaint by Ms Duclos, the employees (including Mr Locke) were spoken to about the proper use of the work email network, and there was no allegation of anything resembling the incident with the note having been brought to the employer's attention. 81In Sharma, the actions taken by the responsible employee were very different to those of Mr Locke, which appears to have been a once-off incident which was quite out of character. In Sharma , the Tribunal below (at [109]-[115], cited in the Appeal Panel decision at [35]) said:- Mr Matic, an assistant manager, was walking around the workplace watching pornography on his phone and showing it to people at work including Mr Kenny, "talking dirty" to staff and engaging in other conduct of a sexual nature. On the evidence before us Mr Matic's conduct was not rare but appeared common place. It was done openly. In addition, on the respondent's own evidence, Mr Matic conceded that he had supplied pornography to Mr Jones at his workplace. 82The conduct in Sharma was one which should have been clear to a manager doing his or her job. In the current circumstances, Mr Locke's action, on his own account, was somewhat impulsive in that he took a throwaway phrase of Ms Cooper's about Mr Z and decided to go back home to pick up the note, which he had recently come across, and give it to her. He understood, as a result of his training and his "browsing" of the Code of Conduct, that provision of sexually explicit material in a work context was in breach of the Code, yet he did it anyway. 83It is not enough for an employer merely to institute policies; the policies need to be implemented and brought to the attention of the employees in a meaningful way. By failing to do so the employer may be found to have authorised the conduct - see Dee v Commissioner of Police and Anor [2003] NSWADT 217. That is not the case here. 84It seems to the Tribunal that the steps taken by the employer were sufficient, in the sense that all steps that could have been taken were in fact taken to fulfil the employer's responsibility that its employees be aware of the various policies affecting their conduct at work and the necessity to abide by them, including penalties if they do not. 85Accordingly, the first respondent, the Local Health Network, is not vicariously liable pursuant to s 53 of the Act for the actions of Mr Locke in sexually harassing Ms Cooper.

The proper remedy? 86The Tribunal has a power to award damages if the complaint is substantiated. The limit of damages is $100,000 (see s 108(2)(a)). In Sharma, the Appeal Panel said (at [41]):- Even if it is permissible to compare the amount the Tribunal awarded with a norm or standard for the assessment of damages, we are not persuaded that an award of $15,000 constitutes an error of law because it is 'manifestly excessive': Toll Pty Limited trading as Toll Express v Abdulrahman [2007] NSWADTAP 70; Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; (1968) 119 CLR 118; Tupou v Scruffy Murphy's Pty Ltd & ors [2007] NSWADT 192. The amount awarded depends on the 'experience and good sense' of the Tribunal member: Alexander v Home Office [1988] 1 WLR 968 per May LJ at 975. 87Both Mr Locke's and the LHN's representatives submitted that any damages should be at the "lower end" of the range. As both respondent's representatives pointed out, Ms Shearer's report indicated that Ms Cooper was "feeling stronger and rebuilding her confidence" from about February 2011 and was coping with mediation about the incident in March. She was "moving forward with confidence and strength in her life and work". Ms Shearer noted that Ms Cooper have "enjoyed" being back at work after an earlier, unrelated incident involving workplace stress, and she was, despite some stress over not having a permanent position, at a time in her life where she was moving forward with her employer before this incident took place. 88Ms Cooper submitted that since the incident she was very unsure and lacked confidence. She submitted that the proper quantum of damages should take into account Ms Shearer's report as well as her own description of her mental state since the incident. In the witness box she was clearly very distressed at having to relive the incident and to recount her reaction to the note. 89Damages for a breach of the Act must compensatory, not punitive - see Purvis v State of New South Wales (2003) 217 CLR 92. Here, any damages must relate to the issues arising out of the incident and not seek to punish Mr Locke for his actions. As we have found that the LHN is not vicariously liable for Mr Locke's conduct, liability for any award of damages must be borne by Mr Locke alone. 90As noted in Sharma , the proper approach is not to trawl through the cases to find one with similar facts and to set an amount of damages in a similar range, without references to the specific circumstances of this case. Reference to other cases can be useful for the assistance they provide in demonstrating the kinds of damages awarded for breaches of the Act; for example, see Hunt v Rail Corporation of New South Wales (above) where a complainant was awarded $15,000 for two incidents of sexual harassment (in the context of a workplace that was stressful in other ways) and Zenkova v Al Fahdawi [2010] NSWADT 272 where a complainant was awarded $20,000 (in the context of an employer's physical attempts to commence a sexual relationship with an employee. However, neither of those cases (or any other case) would provide a binding authority on this Tribunal as to the proper amount of damages. 91Factors which would inform the level of damages include the severity of the breach, the fact that it was a one-off incident, the context of the incident (at work, within a friendly co-worker relationship) and the significance of the ongoing effects of the conduct. 92In our view, while distressing and upsetting for the applicant, the incident does not command damages in the higher range. It happened once, was not an incident which was intended to upset her (despite the probability, given the nature of the document, that it would do so), and was dealt with by the employer in a way which finalised the impact on Ms Cooper. The psychologist's report does not reveal any ongoing issues. Given that the maximum damages that may be awarded is $100,000, presumably for the worst offences, we consider that an award of $10,000 is appropriate in this case. 93 Accordingly, the orders that we make are:- a) The applicant's complaint of sexual harassment is substantiated as against the second respondent. b) The applicant's complaint of sexual harassment is dismissed as against the first respondent. c) The second respondent is to pay the sum of $10,000 to the applicant.

Amendments 03 April 2012 - delete text "No party asked that there by any costs order made" Amended paragraphs: paragraph 93 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 April 2012

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