Bervar Pty Ltd (ACN 116 043 433) t/as Della Rosa Fresh Foods

Kumari v Bervar Pty Ltd (Human Rights) [2023] VCAT 21

1. Pursuant to section 125(a)(ii) of the Equal Opportunity Act 2010 (Vic) (EO Act), the respondent is ordered to pay to the applicant compensation for the injury, loss and damage suffered as a consequence of the respondent's proven contraventions of the EO Act, in the amount of $53,241.00, comprising:
   1. General damages of $38,000.00;
   2. Past loss of earnings of $14,149.73;
   3. Past loss of superannuation of $1,091.27; and
   4. Future loss of earnings of $ nil.
2. Any application for costs must be made by 31 January 2023.
3. Any submissions in reply to any application for costs must be made by 17 February 2023.
4. The Tribunal proposes to determine any application for costs 'on the papers' without further hearing. Any party wishing to object to the Tribunal determining any costs application by the applicant on the papers must inform the Tribunal and the other party of their objection no later than 24 February 2023.

1. These reasons are concerned only with the assessment of detriment and of damages in respect of my earlier findings in relation to the claims made by Sudesh Kumari that she had been subjected to sexual harassment, and discrimination on the grounds of race and victimised, within the meaning of the Equal Opportunity Act 2010 (Vic) (EO Act). For reasons which are explained in my earlier written reasons (earlier decision),[1] I gave written reasons in relation to my findings in respect of those claims but reserved my decision on detriment and the assessment of damages.
2. In the earlier decision I made six findings of contravention of the EO Act by Della Rosa:
   1. A fellow employee engaged in sexual harassment of Ms Kumari contrary to section 93 of the EO Act, when he looked at her breasts rather than her face when he spoke to her;[2]
   2. Ms Kumari's immediate manager, Mr Gonzales, treated Ms Kumari unfavourably due to her race when he said to her 'you are Indian, I don't like Indians, they always cause problems';[3]
   3. Ms Kumari's manager, and the director of Della Rosa, Mr de Lorso, directly discriminated against Ms Kumari because they treated Ms Kumari unfavourably due to her sex in their investigation of her complaint about the sexual harassment;[4]
   4. Della Rosa victimised Ms Kumari in directing her to take annual leave from 14 August 2017 to 18 August 2017 because that direction was made for the reason that Ms Kumari had made a complaint about sexual harassment;[5]
   5. Della Rosa's decision to transfer Ms Kumari to a different workplace amounted to unfavourable treatment due to Ms Kumari's sex, and because she had made a complaint;[6] and
   6. Della Rosa treated Ms Kumari unfavourably by not informing Ms Kumari of her transfer to the different workplace until 5.30 am on the morning of her return to work, and that treatment was because of Ms Kumari's sex and race.[7]
3. I made orders for the parties to file and serve their submissions on the question of detriment.
4. After the hearing had concluded, orders were made, extending again the compliance dates for filing the parties' submissions on detriment. Those compliance dates were further extended a number of times, due to Covid lockdowns and other factors.
5. Completion of these written reasons has been delayed by other pressures within the Tribunal. I apologise to the parties for the delay.
6. The findings I made in the earlier decision were findings of contravention of provisions of Part 4, Part 6 and Part 7 of the EO Act. Section 125 of the EO Act sets out the orders the Tribunal may make if the Tribunal finds that a person has contravened a provision of Part 4, 6 or 7 of the EO Act. The orders the Tribunal may make include an order that the person found to have contravened one of those provisions pay the applicant an amount the Tribunal thinks fit to compensate the applicant for loss, damage or injury suffered in consequence of the contravention.
7. Ms Kumari has claimed $62,000 for non-economic loss, and $121,021.75 for economic loss. Della Rosa submitted that no more than $12,500 should be awarded for non-economic loss, and that no award should be made in relation to the claim for economic loss.
8. For the reasons set out here, I have determined to award Ms Kumari $38,000.00 in compensation for non-economic loss in respect of Della Rosa's contravention of the EO Act in its conduct toward her, and $15,241.00 for economic loss.

1. The principles relevant to making an order for damages to compensate an applicant for loss, damage or injury suffered in consequence of a contravention of the EO Act were considered by Emerton J, as she then was, in Obudho v Patty Malones Bar Pty Ltd,[8] where she referred, with approval, to the judgments of French J and of Lockhart J in Hall v A & A Sheiban Pty Ltd.[9] French J had observed:

... the measure of damages is to be governed by the statute and the rules applicable in tort can be of no avail if they conflict with it. It may be that while there are events for which the conduct complained of is a sine qua non, they would not be recognised in any practical sense as arising "by reason of it". Exclusion principles analogous to concepts of remoteness, and failure to mitigate may then be seen to operate. In the end, however, these are to be subsumed in a practical judgment of cause and effect.

Generally speaking, the correct way to approach the assessment of damages in cases under s. 81 of the Act is to compare the position in which the complainant might have been expected to be if the discriminatory conduct had not occurred with the situation in which he or she was placed by reason of the conduct of the respondent. The effect of sub-s. 81(4) is that the damage which is compensable under para. 81(1)(b) of the Act includes injury to the complainant's feelings or humiliation suffered by him or her.

1. The focus on what might have been expected to be the case if the discriminatory conduct had not occurred, reflects the requirement in s 125(a)(ii) EO Act to 'an amount the Tribunal thinks fit to compensate the applicant for loss or damage or injury suffered in consequence of the contravention'. That is, the loss or damage must be 'in consequence of' the unlawful conduct of the respondent in order to be compensable. The term 'in consequence of' is not limited to loss caused only by the contravention. Discriminatory conduct which contributed to but was not the sole contributor to injury will be sufficient, provided that the contribution was material.[10]
2. Both parties drew my attention also to Richardson v Oracle Corporation Australia Pty Ltd, [11] which establishes that damages have a remedial purpose, are fundamentally compensatory in nature and object, directed to putting the claimant into the position they would have been but for the discriminatory contravention, and are to be determined in accordance with common law principles for the assessment of damages.

1. In relation to the finding that Ms Kumari had been subjected to sexual harassment, contrary to section 92(1)(b) of the EO Act, Ms Kumari stated that the employee's conduct 'staring at my breasts made me feel uncomfortable, objectified and degraded. I felt like I was not being respected and this upset me'; when she confronted the employee about it, his angry response made her feel ashamed and upset.[12]
2. Ms Kumari submits that, given contemporary community standards, an award of $2,000 to $4,000 should be made for the humiliation, distress, pain, suffering and loss of enjoyment of life that this caused her.[13]
3. I pause here to note that Ms Kumari submits that, to take each of the contraventions separately would result in under-compensation, because the contraventions had a cumulative effect. She submits that an additional $5,000 to $7,000 should be included in the award to reflect the cumulative impact of the contraventions. Alternatively, she submits, recognition of the cumulative impact would be reason for taking the higher of the ranges she has put forward in respect of each contravention.
4. Della Rosa submits that any award should not exceed $500.00. Della Rosa submits that there was 'no allegation of leering or staring', and points to Ms Kumari's submission, and my finding, that the complaint could have been resolved by issuing a warning to the employee, as indicating that the contravention of section 92(1)(b) of the EO Act was minor.
5. I note here that, despite Della Rosa's submission that there was no leering or staring, I accepted Ms Kumari's uncontested evidence that the fellow employee stared at her breasts when he spoke to her.
6. In reply, Ms Kumari submits that the finding by the Tribunal that the complaint could have been resolved by a warning has no bearing on her submissions as to detriment, that is, about how the conduct affected her, and 'provides no proper foundation' to infer that the employee's conduct did not affect Ms Kumari as she has attested.
7. I agree. As I have noted above, the purposes of an award of damages is to compensate the applicant for the loss or damage, including hurt and humiliation, suffered by the applicant in consequence of the contravention. That the contravention might have been more severe, or that the contravention might have been ameliorated by more informed actions by the respondent, do not detract from the evidence given by Ms Kumari of the impact on her.
8. I consider that an award of $500.00 in damages would trivialise the conduct complained of. I accept Ms Kumari's evidence that she felt uncomfortable, objectified and degraded.
9. As I indicated in the previous decision, it is well established that leering or staring can amount to unwelcome conduct of a sexual nature.[14] I consider that an award of $7,000 in damages would reflect contemporary community standards in relation to this contravention.

1. After reporting the conduct of her fellow employee to her manager, Mr Gonzales, and Mr Gonzales reporting this in turn to Mr De Lorso, Mr Gonzales instructed Ms Kumari that she was required to attend Mr De Lorso's office. In conveying that message, Mr Gonzales said to Ms Kumari 'you are Indian, I don't like Indians, they always cause problems'. I found that this amounted to unfavourable treatment due to race.
2. Ms Kumari says that, prior to this incident, she did not feel different from the other workers at the factory, and felt she was part of the team. Della Rosa was her first and only employer, and she says this was the first time in her life that she had heard a racist comment about being Indian. She says that after Mr Gonzales' comments, she was shocked and upset, and felt that, unlike her previous manager, Mr Gonzales was against her, and would not support her at work, because of her race. She says that, while she was at home, alone and not working she continued to be very upset by Mr Gonzales' comments. The incident had a lasting effect on Ms Kumari: even after she obtained work in March 2018, she says she continued to be troubled by thoughts of Mr Gonzales' words, and was concerned that others may behave the same way toward her.[15]
3. Ms Kumari submits that an award of $5,000 to $8,000 should be made, on the basis that this contravention had a 'long lasting impact' on her, having occurred in circumstances where Ms Kumari had gone to her manager seeking his help. Ms Kumari points also to the fact that Mr Gonzales made only a bare denial of the allegation that he made a racist comment to Ms Kumari.
4. As I recorded in the previous decision, Della Rosa responded to Ms Kumari's complaint by directing her to transfer from the bakery workplace where she had been working, to the pizza toppings workplace, asserting that Ms Kumari had said she did not wish to work with men, and the pizza toppings workplace was predominantly staffed by women. Ms Kumari denied that she did not wish to work with men, refused to accept the transfer to the pizza toppings workplace, and maintained that she wished to return to her work at the bakery workplace.
5. Della Rosa submits that Ms Kumari's preference for remaining at the Freeman site where Mr Gonzales was located is inconsistent with Ms Kumari's evidence that she was upset and troubled for over a year by Mr Gonzales' words. Further, Della Rosa denies that Mr Gonzales was in a position of significant authority over Ms Kumari, and submits that there was no aggravating conduct on the part of Mr Gonzales, nor any 'vigorous denial' of his conduct.
6. Della Rosa submits that an award in the range of $1,000 to $2,000 would be appropriate.
7. In reply, Ms Kumari says that there is no inconsistency: she would have preferred to work at the Freeman Street site, and that Mr Gonzales had not have said what he said.[16]
8. There is no circumstance in which comments about an employee's race are appropriate in a workplace, let alone a comment to a person who identifies as being of a particular race that persons of that race should not be employed in the workplace, or always 'cause trouble'. However, the purpose of an award of damages is not to punish the contravention, but to compensate the applicant for the discrimination.
9. Although this was a single comment, it was made in the context of Ms Kumari having made a legitimate complaint, and was clearly intended to convey disapproval of Ms Kumari's conduct. I accept that Ms Kumari felt that disapproval keenly, as it came from her direct supervisor, in the only workplace she had experienced. I accept Ms Kumari's evidence of the impact that the contravention had on her, in particular that it caused her to feel that she was not an accepted part of the team, and that she was viewed differently because of her race. I accept that this affected her for over a year, and continues to affect her.
10. In all the circumstances, I consider that damages of $7,000 is appropriate in respect of this contravention.

Discrimination in the investigation of the complaint

1. In relation to the finding that Ms Kumari was treated unfavourably in the investigation of her complaint, Ms Kumari says she 'felt bad' because she was the only employee required to go to the office of the Director of the company, Mr Emilio de Lorso; the person about whose conduct she had complained was not required to attend his office. She felt disbelieved by Mr de Lorso. As I found in the previous decision, his comments to her clearly conveyed disbelief, and amounted to trivialising her complaint. Ms Kumari says it was 'disheartening': she had expected to be heard and treated fairly, and in the following weeks, she thought 'many times a day' about what Mr de Lorso said to her and was 'very upset' all the time that she was unable to find work.[17]
2. Ms Kumari submits that an award of $5,000 to $8,000 should be made, due to the humiliation, distress, and loss of enjoyment of life she experienced, over many months, as a result of the comments made to her by Mr de Lorso, a person in a position of significant authority, and responsibility.[18]
3. Della Rosa acknowledges that, in the previous decision, I found, in light of their conduct and their evidence in the hearing, 'that neither Mr Gonzales nor Mr de Lorso had a proper appreciation that the conduct complained of by Ms Kumari was conduct that contravenes section 92 of the EO Act'.[19] Della Rosa submits that there was no finding of high handed, malicious, insulting or oppressive conduct in conducting the investigation. [20] Della Rosa suggests that the Tribunal's finding records a 'misunderstanding' rather than aggravating conduct. For these reasons, Della Rosa submits that an award of $2,000 to $3,000 would be appropriate.
4. The finding I made was that Mr Gonzales and Mr de Lorso had no appreciation that the conduct complained of by Ms Kumari amounted to a contravention of the EO Act. Della Rosa's characterisation of that finding, as a 'misunderstanding', is entirely misconceived. Employers have an obligation to provide a safe workplace to all their employees. Freedom from sexual harassment, freedom from discrimination, and application of fair procedures for investigating workplace complaints, are all requirements for a safe workplace. Della Rosa gave no evidence in the hearing of even the most basic workplace training in these matters having been conducted for employees and managers. The evidence given by Mr de Lorso, the owner of the business, clearly showed that he had not informed himself of his obligations as an employer in this regard. These facts demonstrate, in my view, 'high handed' disregard for the employer's statutory obligations under the EO Act.
5. As I have observed above, the initial contravention, by Ms Kumari's fellow employee, could have been simply and effectively ameliorated, but was actually exacerbated by the conduct of Della Rosa's management. I am satisfied that Della Rosa's inappropriate and insensitive investigation significantly increased the impact on Ms Kumari.
6. I consider that an award of $8,000 in damages in relation to the finding of discrimination in the conduct of the investigation is appropriate.

1. In the previous decision, I found that Ms Kumari was victimised by being directed to take leave because she had made a complaint of sexual harassment. Ms Kumari gave evidence that she was distressed at being made to take annual leave, because she felt she was wasting her annual leave, when she wished to save it to visit family in India. She says she felt that being directed to take annual leave was a punishment, and during that leave she felt upset, worried and concerned.[21] She says that she felt stressed, had anxiety and experienced headaches, and felt 'sad like a sick person' and felt she could not trust new people she met.[22] Her husband gave evidence that Ms Kumari was 'very stressed, ate less food, paid less attention to things and stopped talking to and seeing family and friends'. He said he observed that Ms Kumari became less energetic and joyful, and 'felt ashamed'.[23] Ms Kumari says that she did not consult a doctor or psychologist because to do so is uncommon in India. She says that she overcame her feelings through support of her husband, meditation and yoga.[24]
2. Ms Kumari submits that an award of $2,000 to $3,000 should be made, that amount being inclusive of the detriment of having her annual leave used up and not available to her for a family trip to India.[25]
3. Della Rosa submits that any award of damages in respect of the victimisation should be between $1,000 and $2,000. Della Rosa submits 'it would seem that [Della Rosa's] motivation was merely a lack of understanding rather than being high handed or malicious' [26] again referring to a passage of the decision of the Federal Court in Hall v A & A Sheiban Pty Ltd examining the criteria for the award of aggravated damages.[27] Ms Kumari has not made a claim for aggravated damages.
4. As I have noted above, all Victorian employers have a positive statutory duty to take reasonable and proportionate measures to eliminate discrimination, sexual harassment or victimisation as far as possible. It is a serious obligation, and, in the context of that statutory obligation, Victorian employees have a legitimate expectation that they will be treated fairly when they make a complaint about contravention of the EO Act. An employer who is not alive to that expectation, and its obligations under the EO Act, is at risk of injuring their employees if their conduct contravenes the Act. I accept Ms Kumari's evidence of the distress and upset that she felt as a result of the victimisation by Della Rosa.
5. I consider that damages of $4,000 in respect of the direction to take leave is appropriate.

Finding of unfavourable treatment in notification of transfer

1. In the previous decision, I found that Ms Kumari was only informed, by Mr Gonzales, that she was required transfer to a different workplace at 5.30 am on the morning she was returning to work. I found that this late notification amounted to unfavourable treatment because of Ms Kumari's sex and race.
2. This contravention lies in the conduct of Mr Gonzales, in circumstances where I found that he had expressed a dislike of persons of Ms Kumari's race, and to have said 'they aways cause trouble'. I accepted the evidence of Mr de Lorso that he had intended that Ms Kumari be notified of the transfer of workplace prior to the weekend. Mr Gonzales failed to carry out Mr de Lorso's instruction, and Ms Kumari was not notified until the morning before she was due to commence work.
3. Ms Kumari says she had hoped that morning 'that everything will be ok when I went back to work'. When she arrived Mr Gonzales ordered her to leave. She says she was insulted, upset and shocked by his conduct.[28]
4. Ms Kumari submits that an award of $1,000 to $2,000 should be made in respect of this contravention. She refers to the awards made in Deckert v Victorian Institute of Dryland Agriculture,[29] a claim concerning pregnancy related discrimination in employment in which $800 was awarded in 2009; and Galea v Hartnett - Blaigowrie Caravan Park[30] in which $1,000 was awarded in 2012 for discrimination in the provision of accommodation on the basis of parental status.
5. Della Rosa says that the 'upset caused to Ms Kumari' was limited to that day, 21 August 2017, that she was provided with assistance to get her vehicle started (so that she could drive to the other site); that 'there was no resistance to her not working on that day'; and she was paid for that day. Della Rosa submits that compensation should be nominal and in the range of $1,000 to $2,000.[31]
6. I consider that an award of damages of $2,000 is appropriate in respect of the impact on Ms Kumari of this contravention.

Finding of unfavourable treatment in workplace transfer

1. In the previous decision, I found that the direction that Ms Kumari transfer to the pizza toppings workplace amounted to unfavourable treatment. I made that finding because the transfer was proposed precisely because she had made a complaint relating to contravention of the EO Act, and because it had the effect of requiring her to work in a role that, although remunerated at the same pay rate, was less satisfying. Accordingly, I found that the imposition of the transfer on Ms Kumari amounted to victimisation by Della Rosa of Ms Kumari, within the meaning of section 104 of the EO Act.[32]
2. In relation to that finding, Ms Kumari claims compensation for both economic loss and for non-economic loss.

1. Ms Kumari claims $30,000 in non-economic loss in relation to this finding. Ms Kumari gave evidence that she felt that she was disbelieved and not trusted, and that, because of the manner in which Mr de Lorso spoke to her, she feared she would be sacked. Ms Kumari described feeling very emotional and being in tears.[33] She submits that an award of this amount is required because the actions of Della Rosa removed her from her familiar workplace, and was done because she had dared to stand up for herself.[34]
2. Further, she submits that the impact of the contravention is all the more 'potent and insidious because of the community's recognition of the importance of a stable job to a person's life and to his or her sense of worth and of self'.[35]
3. Ms Kumari referred to the observations of Bromberg J in Quinn v Overland[36] that:

[an implied power to decline to provide work to an employee by placing the employee on leave with pay indefinitely] would be inconsistent with ... modern conceptions of the personal importance of, and dignity that is derived from work.

1. Della Rosa submits that there is no evidence to support the claim for non-economic loss. Della Rosa asks the Tribunal to note that, where substantial damages have been awarded for non-economic loss, these have been supported by medical evidence.[37]
2. Della Rosa submits that Ms Kumari has provided no medical evidence of her condition, and that her description that she was stressed, anxious, sad and depressed does not suggest a quantifiable psychological injury of the kind contemplated by the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, commonly used to describe injury to mental health.[38]
3. Della Rosa submits that Ms Kumari's evidence, that she did not see a doctor or psychologist because she did not know she could seek treatment for anxiety and depression, should be rejected as implausible.
4. Della Rosa submits that damages for non-economic loss should be 'at the low end of the range, say $2,000 to $3,000 bearing in mind that the victimisation was the transfer and offering of an alternative job which [Ms Kumari] was appropriately and suitably qualified for without loss of income.'[39] Della Rosa submits that damages of any greater sum would operate to punish the respondent rather than to compensate the applicant.[40]
5. In response to these submissions of Della Rosa, Ms Kumari rejects the assertion that she should be required to adduce medical evidence to substantiate her claim for compensation for humiliation, distress, pain, suffering and loss of enjoyment of life.
6. Ms Kumari draws a parallel between her situation and that in Maritime Union of Australia v Fair Work Ombudsman[41] where damages awards of $20,000 were made to employees who had been identified as 'scabs' in materials published by the union; and that in Dziurbas v Modelez Australia Pty Ltd[42] where an award of $20,000 in damages was made for injury to feelings to a 63 year old man who was rendered unemployed and effectively unemployable following his employer's failure to consider whether reasonable adjustments could be made, despite his very long employment history.
7. I accept Ms Kumari's evidence of the humiliation, distress, pain, suffering and loss of enjoyment of life which she has given. No evidence was given of any established practice of transferring staff between workplaces, and I accept that Ms Kumari felt that the transfer was punishment for making the complaint. I accept Della Rosa's submission that the work at the pizza topping workplace was within Ms Kumari's skills, but note that the workplace and the work performed was not familiar to Ms Kumari. The manner in which Ms Kumari was informed of Della Rosa's decision to transfer her contributed to her sense of humiliation, distress and upset. Nevertheless, unlike the examples she referred to, she did not fear physical harm or damage to her property as in Maritime Union, nor was she a person in the later stages of her working life, unable to find work. I also accept that, in the absence of expert medical evidence of significant psychological or psychiatric injury, the measure of damages will be comparatively modest. However, an award of damages for the humiliation, hurt and distress which Ms Kumari felt in relation to the forced transfer of employment is warranted.
8. Doing the best I can on the evidence before me, I consider an award of $8,000 to be appropriate.
9. Accordingly, the total figure for non-economic loss is $53,241.00. In this case, while bearing in mind the remedial nature of an award of general damages, I have had regard to the first objective of the EO Act, namely to eliminate discrimination, sexual harassment and victimisation, to the greatest possible extent. I have also had regard to the approach to compensation outlined in Richardson v Oracle Corporation Australia Pty Ltd and Tucker requiring consideration of prevailing community standards. In this case, not only did Ms Kumari experience sexually harassing conduct, albeit for a comparatively short period of time, she was also subjected to racial discrimination. Ms Kumari was right to raise her complaints. Further, I am satisfied that the victimisation of Ms Kumari after she raised her complaints exacerbated her feelings of humiliation, distress and being disrespected. These were serious contraventions, which Della Rosa sought at every turn to diminish.
10. I have also had regard to the recent decisions of Gutierrez v MUR Shipping Australia Pty Ltd,[43] in which an award of $20,000 in general damages was made for discrimination on the grounds of age, where there was no allegation of victimisation; and the decision of Oliver v Bassari[44] where an award of $150,000 was made where the applicant was diagnosed with anxiety, depression and Post-Traumatic-Stress-Disorder following sexual harassment over a period of some 11 months which culminated in a sexual assault.
11. In the circumstances I consider the award for non-economic loss to be proportionate and not excessive.

1. Ms Kumari says that in consequence of the transfer of her employment to the pizza topping site (the different workplace) she also suffered lost income and benefits.
2. Ms Kumari submits that it was 'entirely reasonable and appropriate for her not to return to work at the pizza toppings site' because to do so would have been to require her 'to endure the very victimisation and discriminatory conduct Della Rosa was found to have committed'. She submits that, 'given the beneficial objects of the EO Act, that is not an approach that should be adopted'.[45]
3. Ms Kumari says she mitigated her economic loss firstly by attempting to remain working at the site 'where she was, but for the discrimination and victimisation, entitled to work', that is, by seeking to return to the bakery workplace, and after her employment with Della Rosa terminated, by seeking employment elsewhere.[46]
4. Ms Kumari claims $120,021.15[47] in past economic loss, future economic loss and the value of long service leave she would have accrued.[48] That sum has been calculated with reference to her current employment prospects, likely future work patterns and future long service leave entitlements.
5. Della Rosa submits that there should be no compensation for economic loss. Della Rosa submits that the economic loss claimed by Ms Kumari is not a consequence of Della Rosa's contraventions of the EO Act, but arises from Ms Kumari's decision not to return to the workplace, and after termination of her employment, her decisions to study part time from January 2018, and to work part time.[49]
6. In relation to Ms Kumari's claim for future economic loss, Della Rosa disputes that Ms Kumari would have remained in employment with Della Rosa, and submits that it is 'highly likely' that Ms Kumari would have pursued childcare work. Further, Della Rosa submits that Ms Kumari has failed to mitigate her loss, not having accepted the position offered at the pizza toppings workplace and not having asked for a reference letter after her employment ended.

1. Ms Kumari says that, had she remained employed by Della Rosa between 21 October 2017 and 15 November 2019, she could have expected to have earned $115,764.00, calculated as weekly earnings, including overtime and superannuation, of $1,073.31 multiplied by 107.86 weeks. Instead, it is her evidence that she has earned $32,760.85. Accordingly, her claim for past economic loss is $83,003.15.[50]
2. Della Rosa does not dispute the calculations made by Ms Kumari in respect of past economic loss, but submits that the amount claimed by Ms Kumari does not represent loss, damage or injury suffered 'in consequence' of Della Rosa's contraventions of the EO Act.
3. Della Rosa submits that to the extent the claim for economic loss is founded on the difference between full time earnings prior to the contraventions and part time earnings after that date, that alteration in employment status was not 'in consequence' of the contraventions of the EO Act. Della Rosa says Ms Kumari's part time earnings were a consequence of her decision to study on a part time basis from January 2018 to November 2019.
4. Della Rosa says Ms Kumari's loss is due to her having worked part time or less than full time after her employment was terminated. Della Rosa submits that it was Ms Kumari's decision to study part time from January 2018 to November 2019. Accordingly, Della Rosa says Ms Kumari has failed to mitigate her loss because she did not take reasonable steps to obtain full time employment.[51]
5. Della Rosa sought to place substantial weight on the fact that Ms Kumari did not request an employment reference from Della Rosa after her employment was terminated.
6. Ms Kumari conceded that she did enquire about obtaining a reference at a time before her employment was terminated, but, says that, when she was told she would need to resign to be given an employment reference, she concluded that to resign would be inconsistent with her desire to return to work at the bakery workplace.[52] Ms Kumari asserts also that at some point she did record Della Rosa as a prior employer in relation to one job application, where she was unsuccessful. Ms Kumari says that, as a result, she believed that Della Rosa would not give her a good reference, and this would not assist her search for work.[53]

1. Ms Kumari's claim for future economic loss has been calculated to March 2021, anticipating that by that date, she would be able to obtain full time employment in child-care. She estimates her future economic loss as $31,679.00.
2. In relation to the claim for future economic loss, Della Rosa contests that Ms Kumari would have remained working for Della Rosa until retirement. Della Rosa submits that the Ms Kumari's interest in child-care work, having completed a certificate in child-care work in 2013, and undertaking a diploma in child-care from 2018, indicate that Ms Kumari was unlikely to remain working for Della Rosa until her retirement.
3. Della Rosa asserts that Ms Kumari failed to mitigate her loss because she did not take any reasonable steps to obtain full time employment, in that she continued to work as a factory worker on a casual basis after completing the diploma in November 2019. Della Rosa submits that Ms Kumari's failure to request a statement of service from Della Rosa was a contributing factor in her not being able to obtain full time factory work.
4. Della Rosa submits, further, that, at the proposed workplace, Ms Kumari 'would have had a greater prospect of being promoted to an actual supervisory position ... with a commensurate increase income... [which] could have been achieved in under four months in light of [Ms Kumari's] experience'.[54]
5. Given the vigorous denial by Della Rosa, in the hearings relating to the previous decision that Ms Kumari was in any way qualified to undertake supervisory role, this is a surprising submission. There is no evidence before me that supports the submission that the pizza toppings workplace offered any prospect of promotion. Accordingly, I have given no weight to this aspect of Della Rosa's submission.

1. Ms Kumari claims also the loss of long service leave entitlements, calculated at $5,339.00.
2. Della Rosa says that it terminated Ms Kumari's employment because Ms Kumari had not informed it of her intention, and willingness to return to her role at the bakery site. The documentary evidence, including emails sent by Ms Kumari to Della Rosa, her complaint to the Victorian Human Rights and Equal Opportunity Commission (VEOHRC) dated 10 November 2017, her General Protections application to Fair Work, and Della Rosa's own response to that application, indicate that Ms Kumari consistently stated that she sought to return to her former position at the bakery workplace.
3. I accept that, at the time of the events which gave rise to these proceedings, Ms Kumari had not given any indication that she intended to leave Della Rosa, and it might have been reasonable to anticipate that she might remain employed with Della Rosa long enough to qualify for long service leave.
4. Della Rosa says that Ms Kumari was only willing to take on a position at the toppings factory if she were given a supervisory role. Ms Kumari says it was her preference and desire to return to the role at the bakery factory. At no time was Ms Kumari offered a position back at the bakery factory. Ms Kumari has said that she was not willing to take the role in the toppings factory because she felt that would amount to 'giving in' to Della Rosa when they had treated her poorly.
5. I accept Ms Kumari's evidence that she did not commence the Diploma in Child Care until January 2018, after having contacted childcare centres in late 2017 and early 2018, and it being suggested by those she spoke with at child care centres, that the Certificate III she had obtained in 2014 would not be sufficient.[55] Ms Kumari says that she looked for child care work because she wanted the certainty of hours that she had had in full time employment with Della Rosa, that inconsistent casual shifts at other factories could not provide.[56]
6. In its written submissions, following the closing of evidence, Della Rosa has submitted that the toppings factory was due to be decommissioned in July 2020, and that Ms Kumari might not have been willing to transfer to another factory site at that future date. No evidence to that effect had been given; the matter was not put to Ms Kumari in the hearing. The submission is speculative at best, and I have given it no weight.
7. For Ms Kumari, it is submitted that there is no evidence to support that supposition, and further, even if I were to accept Della Rosa's submission that Ms Kumari would not have transferred to the National Boulevard Site upon closure of the Freeman Site, which she denies, the effect would only be to limit the period for which economic damages are claimed.[57]

1. On the evidence before me, I am satisfied that it is more likely than not that, had Ms Kumari not been subjected to the contraventions of the EO Act by Della Rosa, she would have continued to work at Della Rosa, on a full-time permanent basis, for at least a period of two years, as she asserts.
2. Had the contraventions not occurred, there would have been no proposal to transfer Ms Kumari, she would not have been directed to take a period of leave, and she would not have made her complaints to VEOHRC and to Fair Work.
3. Ms Kumari has given evidence that she obtained casual work with three employers after her employment with Della Rosa was terminated - for the periods November 2017 to December 2018, July 2018 and September to December 2018.[58] Ms Kumari has given evidence that she made 21 unsuccessful job applications during February to April 2018.[59]
4. In December 2017 and January 2018 Ms Kumari says she approached 8 childcare centres to enquire about work, and it was suggested to her that there were few positions for candidates with the Certificate III she had completed in 2014, but that she might have more success with a Diploma level qualification. In January 2018 Ms Kumari commenced a Diploma in Early Childhood Education and Care. Ms Kumari says that she attended classes on Saturdays and undertook five to ten hours study at home each week. Between late November 2018 and January 2019, Ms Kumari undertook 240 hours, the equivalent of 30 full-time days of unpaid placement as part of that course.[60]
5. I accept Ms Kumari's evidence that she investigated opportunities in child-care work, thinking that this might provide greater opportunities for full-time employment at more regular hours than factory shifts.[61] On learning that the qualification she had obtained in 2014 would not be sufficient, she decided to enrol in a course to upgrade her qualifications. It is apparent that Ms Kumari was not available for full-time work during the period that she was undertaking the unpaid placement in childcare between late November 2018 and January 2019.
6. I accept that after termination of her employment with Della Rosa, Ms Kumari earned considerably less than she had earned while working with Della Rosa. The pay slips exhibited to her Affidavit indicate that Ms Kumari worked night or afternoon shifts and other shifts attracting additional penalty rates on one or two days a week.[62] Ms Kumari conceded, in the hearing, that she sought casual work because employers required applicants for full time positions to supply a reference from past employers, and she conceded that she had not requested such a reference from Della Rosa.
7. I pause here to put Ms Kumari's submissions in their chronological context.
8. Ms Kumari's last day working at Della Rosa was 11 August 2017.
9. Ms Kumari was directed to take one week's annual leave from 14 August 2017 to 18 August 2017. A consequence of that direction was that Ms Kumari lost the benefit of her annual leave credit for that week's leave, when she might otherwise have been attending work.[63] I found that Ms Kumari was subjected to detriment when she was directed to take one week's annual leave from 14 August 2017 to 18 August 2017.[64]
10. Following this, for the period 22 August 2017 to 19 October 2017, Ms Kumari remained on paid leave. I found that this period of leave did not amount to a contravention of the EO Act, that is it did not amount to being subjected to detriment for the reason that she had made a complaint about sexual harassment. This was because I found that Ms Kumari declined to transfer to the alternative employment offered to her, and that she elected not to return to work following the meeting on 22 August 2017. I found that she elected to sign the annual leave application forms in order to continue to receive income while she was away.[65]
11. I am satisfied that, if the contraventions had not occurred, Ms Kumari would not have taken, and used up, all of her leave in the period 22 August 2017 to 19 October 2017.
12. I note that, during this period, on 12 September 2017, Ms Kumari filed an application to VEOHRC, which she withdrew a few days later because she thought she might be better able to negotiate a return to work with Della Rosa if the application were not on foot.[66]
13. After her leave entitlements had been exhausted, on 20 October 2017, Ms Kumari did not return to employment with Della Rosa. On 27 October 2017, Ms Kumari says that she reactivated her application to VEOHRC because she had been unsuccessful in negotiating with Della Rosa on her own.[67]
14. On 7 January 2018 Ms Kumari lodged a General Protections F8C application in Fair Work. A conciliation was conducted between Ms Kumari and Della Rosa on 30 January 2018.[68] Subsequently, on 18 February 2018, Della Rosa terminated Ms Kumari's employment on the grounds that she had not confirmed her intention to return to the workplace.
15. Ms Kumari says that after termination of her employment, she was only able to obtain casual work. In the hearing, Ms Kumari conceded that she did not have a reference from Della Rosa, that employers generally required such a reference from applicants for full time positions, and that she did not request a reference or statement of service from Della Rosa. Ms Kumari asserted that this was because she still wished to return to her previous employment with Della Rosa. However, after 18 February 2018 it is apparent that there was no prospect of this.
16. Ms Kumari has given evidence of 21 unsuccessful applications for casual work in the period February to April 2018, and of obtaining casual work from September to December 2018, and in June and November 2019. Ms Kumari has given no evidence of her job search activities in May to August 2018 or in the first half of 2019. As I have recorded above, Ms Kumari undertook 240 hours of unpaid placement with a childcare provider in December 2018 and January 2019.
17. I am satisfied that it is appropriate to compensate Ms Kumari for the loss of the benefit of 60 days annual leave credit for the period 22 August 2017 to 19 October 2017, 44 working days.
18. I am also satisfied that it is appropriate to compensate Ms Kumari for her loss of income for the period from 20 October 2017 to the end of October 2017, a period of seven working days, noting that Ms Kumari was able to obtain casual employment during the period November 2017 to January 2018, and I infer from this that she actively sought employment prior to this.
19. I consider it is also appropriate to compensate Ms Kumari for lost income in respect of the February 2018 while she was active, but, ultimately unsuccessful in seeking employment. In March and April 2018, I am satisfied that, although it would have been reasonable for her to obtain a reference or statement of service from Della Rosa to assist her job search, she did not do so. Accordingly, I find that Ms Kumari did not mitigate her loss in these months, as she had not put herself in a position where she could produce a reference in support of any applications for full time positions. After April 2018, having regard to the absence of evidence of continuing job applications, and her commitment to five to ten hours study each week, I consider that factors other than the contraventions by Della Rosa had a greater impact on her income.
20. Doing the best that I can, on the evidence before me, I will allow the equivalent of four weeks in respect of February 2018. Adding these periods together gives a total of 71 days.
21. Working from Ms Kumari's figures regarding her income, which are not contested by Della Rosa, Ms Kumari's average weekly wage, including overtime, was $996.46, and her superannuation was $76.85. Accordingly, I calculate the compensation that should be ordered in respect of the 71 days to be $14,149.73 in respect of lost wages and overtime, and $1,091.27 in respect of lost superannuation.
22. As a consequence of my findings in relation to past loss of earnings, no award in respect of future loss of earnings is warranted.

[1] Kumari v Bervar Pty Ltd t/as Della Rosa Fresh Foods (Human Rights) [2019] VCAT 1654.

[6] Earlier Decision at [69]-[70] and [98].

[8] [2017] VSC 28.

[9] [1989] FCA 72; (1989) 20 FCR 217 at 281.

[10] Ibid at [94], see also Henvill v Walker (2002) 210 CLR 109 [62]; I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd (2002) 210 CLR 109 at [57]; and Colins v Smith [2015] VCAT 1992 [14]-[17].

[11] [2014] FCAFC 82; (2014) 223 FCR 334. See also, Colins v Smith [2015] VCAT 1992 [149] where Judge Jenkins found the phrase 'in consequence of' to be at least as expansive as 'because of' used in the AHRL.

[12] Affidavit of Sudesh Kumari dated 15 November 2019, at [3] and [5].

[13] Submissions of the applicant dated 15 November 2019, at [23].

[15] Affidavit of Sudesh Kumari dated 15 November 2019 at [8]-[16].

[16] Applicant's Submissions in Reply dated 6 January 2019 at [13].

[17] Affidavit of Sudesh Kumari dated 15 November 2019 [17]-[23].

[18] Ms Kumari relies on the decision of Collins v Smith [2015] VCAT 1992, as supporting the proposition that contravening conduct by a person in authority in itself amounts to an aggravating circumstance, however, I note that it will generally be the case that discrimination that occurs in the investigation of a complaint, will not necessarily be conduct of a person at managerial or other authoritative status in the organisation.

[20] The reference to high handed or malicious conduct is drawn from Hall v A & A Sheiban Pty Ltd, supra, which articulated such considerations as relevant in considering an award of aggravated damages.

[21] Affidavit of Sudesh Kumari dated 15 November 2019 [24]-[28].

[23] Affidavit of Puneet Vats dated 15 November 2019 [4], [9], [10].

[24] Affidavit of Sudesh Kumari dated 15 November 2019 [73].

[25] Submissions of the applicant dated 15 November 2019 at [33].

[26] Submissions of the respondent dated 6 December 2019 at [25]-[27].

[27] Hall v A & A Sheiban Pty Ltd [1989] FCA 72; (1989) 20 FCR 217, 239.

[28] Affidavit of Sudesh Kumari dated 15 November 2019 [30]-[39].

[29] [2006] VCAT 299.

[30] [2012] VCAT 1049.

[31] Submissions of Della Rosa dated 6 December 2019 [21].

[33] Affidavit of Sudesh Kumari dated 15 November 2019 at [40] to [63].

[35] Submissions of Sudesh Kumari dated 15 November 2019, at [45].

[36] [2010] FCA 799; (2010) 199 IR 40, approved by the Full Court in Maritime Union of Australia v Fair Work Ombudsman [2016] FCAFC 102; (2016) 247 FCR 154 at 163 [22] (per Tracey and Buchanan JJ) and [171] [64]-[66] (per Bromberg J); and by Bell J of the Supreme Court of Victoria in Actrol Parts Pty Ltd v Coppi [No 2] [2015] VSC 694; (2015) 257 IR 179 at [22].

[37] Submissions of Della Rosa dated 6 December 2019 at [48]; referring to Erwin v Vergara [No 3] [2013] FCA 1311; (2013) 238 IR 118; Richardson v Oracle Corporation Pty Ltd [2014] FCAFC 82; (2014) 223 FCR 334.

[38] Submissions of Della Rosa dated 6 December 2019 at [46].

[39] Submissions of Della Rosa dated 6 December 2019 at [49].

[41] [2016] FCAFC 102; (2016) 247 FCR 154 (Maritime Union).

[43] [2021] FedCFamC2G 56 (1 December 2021).

[44] (Human Rights) [2022] VCAT 329.

[45] Submissions of Sudesh Kumari dated November 2019 [41].

[46] Submissions of Sudesh Kumari dated 15 November 2019 [40]-[41].

[47] This figure is a pre-tax figure. The applicant submits that this is the appropriate basis for an award, relying on Davinski Nominees Pty Ltd v I & A Bowler Holdings Pty Ltd [2011] VSC 220.

[48] Affidavit of Sudesh Kumari dated 15 November 2019 at [109].

[49] Respondent's Submissions in Reply dated 18 March 2022 at [24].

[50] Affidavit of Sudesh Kumari dated 15 November 2019 at [102]-[104].

[51] Submissions of Della Rosa dated 6 December 2019 [28].

[53] Affidavit of Sudesh Kumari dated 15 November 2019 at [86].

[54] Submissions of Della Rosa dated 6 December 2019 at [25].

[55] Affidavit of Sudesh Kumari dated 15 November 2019 [87] [93].

[56] It is Ms Kumari's evidence that she approached eight childcare centres unsuccessfully and was told that obtaining a diploma would strengthen her employability: Kumari Affidavit dated 15 November 2019 [87], [93]-[96]; Further Kumari Affidavit [9].

[57] Paragraph 23 of Applicant's Submissions in Reply dated 6 January 2019.

[58] Affidavit of Sudesh Kumari dated 15 November 2019 at [85].

[63] Earlier Decision at [60]. I note that an amount in respect of that leave is incorporated in her claim for non-economic loss in respect of that contravention. See paragraph 39 above.

[66] Affidavit of Sudesh Kumari dated 15 November 2019 at [83]

[67] Ibid. It appears that Della Rosa declined to attend a proposed conciliation by VEOHRC which was scheduled for 23 January 2018.