McCauley v Club Resort Holdings Pty Ltd [2013] QCAT 243 | Case summary

McCauley v Club Resort Holdings Pty Ltd [2013] QCAT 243 | Case summary | Zoe

[43]

[14] Sexual harassment is defined in section 119 of the Anti-Discrimination Act 1991. There are two tests which must be satisfied before there can be a finding of sexual harassment. The first is that (ignoring anything not relevant to these proceedings) a person subjects another to an unsolicited act of physical intimacy, or makes a remark with sexual connotations relating to the other person, or engages in any other unwelcome conduct of a sexual nature in relation to the other person.

[15] The second test which must be satisfied is that the conduct is done with the intention of offending, humiliating or intimidating the other person, or in circumstances where a reasonable person would have anticipated the possibility that the other person would be offended, humiliated or intimidated by the conduct. Section 120 defines the circumstances relevant to this second test and includes the sex or age of the complainant.

[16] Direct discrimination is defined in section 10 of the Act. It occurs when, on the basis of an attribute (in this case sex or age) a person treats another less favourably than another person is or would be treated without the attribute in circumstances that are the same or not materially different. The test is therefore comparative. The Tribunal is comparing different treatment of two individuals in substantially the same circumstances - where one individual has the attribute and the other does not. The words "would be treated" indicate that the comparison can be between the complainant and a hypothetical person.

[17] Victimisation is defined in section 130 of the Act. It occurs (relevant to these proceedings) when somebody treats another detrimentally because that person has made a complaint of discrimination.

[18] The First Respondent, as the employer of the alleged perpetrator of the acts complained of, relies on the "reasonable steps" defence to avoid being jointly and severally liable for the acts of the perpetrator (under the principal of vicarious liability). This defence in section 133(2) of the Act and requires proof by an employer on the balance of probabilities that it took reasonable steps to prevent the employee contravening the Act.

[45]

[22] In the victimisation claim I am invited to infer from the primary facts that Ms McCauley was victimised that is, treated detrimentally because of her complaint of sexual harassment. It is said on Ms McCauley's behalf that there are a number of things which happened in this case which remain unexplained. In particular, the investigation was incomplete and the finding was against the weight of the evidence. It is said that this was because her employer did not want to treat her complaint seriously and was looking for a way to "save face" or to deter Ms McCauley from pursuing her complaint. Then when Ms McCauley returned to work, and after it became clear she would not drop her complaint, her life was made difficult by being deliberately targeted for discipline by or at the instigation of the Human Resources manager, without proper interview processes being carried out.

[23] It is submitted on Ms McCauley's behalf that for all these things there may either an innocent explanation or alternatively the employers had an "agenda". It is submitted that the employers have not provided any or any adequate explanation, therefore because of the strength of the matters which remain unexplained I should infer that the explanation is the agenda which was therefore victimisation.

[24] Because of the importance of this matter in this case, I need to consider when it is right to reach such an inference in a discrimination case under the Act where there is no good explanation for events which might be discriminatory. In this respect I am mindful that unlike in some other jurisdictions, in Queensland the burden of proof does not shift by statute to a respondent to show that there was no discrimination whatsoever once the complainant has established a prima facie case.

[25] In jurisdictions where the burden does shift in this way, then if there are events which if left unexplained could cause a court or tribunal to infer that discrimination had occurred, the court or tribunal would look to the respondent to provide an explanation. If no explanation is forthcoming, or an explanation is given which is not accepted by the decision maker, then the likelihood is that the respondent will be unable to prove that there was no discrimination whatsoever and the complainant will succeed.

[26] It is notable that in regimes with a statutory shifting of the burden of proof there is a two stage process in decision making. Firstly, has the complainant proved a prima facie case? Then if so, has the respondent proved that there was no discrimination whatsoever?

[27] At first instance in Department of Health v Arumugam [1988] VicRp 42; [1988] VR 319 the Equal Opportunity Board seemed to apply a similar two stage process in a regime where there was no statutory shifting of the burden of proof but where the complainant had the full burden. On review in the Victorian Supreme Court it was argued that in doing so, the Board had reversed the burden of proof. In that case Dr Arumugam had been overlooked for a post as hospital Psychiatrist Superintendant. The Board decided that the primary facts were sufficient to indicate that some discrimination had occurred in the decision made by the appointing panel, and so looked to the respondent to explain why the apparently discriminatory decision had been made. On appeal, Fullagar J decided this was the wrong approach. The way it was put by His Honour was as follows:-

[51]

[34] It is provided in section 204 that the complainant has the burden of proof. Necessarily this means that it should be more difficult for a complainant to prove a discrimination case than where there is a statutory shifting of the burden. This is achieved by requiring rational deduction to support the inference that discrimination has occurred and not mere speculation, guesswork or assumption that this is so. This is a greater burden on the complainant than would be required to prove a prima facie case in jurisdictions where the burden would then shift.[5]

[35] It is clear that the quality of the respondent's explanation if proffered can be considered by the decision maker. As Fullagar J said in the above passage in Arumugam, if an explanation is proffered but found to be dishonest, then this might allow an inference to be reached from the primary facts with greater certainty.

[36] Where no reasonable respondent would have acted in the way which is said to be discriminatory, then it would be open to the Tribunal to infer there was discrimination in the absence of a proven innocent explanation.[6]

[37] And of course where the evidence shows that the more probable explanation for the events is an innocent one and not discriminatory, then there is no room for an inference that discrimination has occurred.

[38] It is also clear that if a respondent does not call a witness (without good reason) who would appear to be able to provide an explanation for events which if not explained might lead to the view that discrimination had occurred, this could result in a adverse inference being made. This accords with the High Court case of Jones v Dunkel [1959] HCA 8; [1959] 101 CLR 298 relied on by Mr Taylor on Ms McCauley's behalf.

[39] There are other ways, other than not calling an important witness, in which a respondent might fail to provide an explanation for events which if unexplained, might result in a finding that there had been discrimination. It may be that a witness who should be able to give such explanation is called to give evidence, but does not give an explanation in evidence in chief. A further possibility which quite often occurs, is that the respondent does not provide disclosure of documents which might demonstrate an explanation for events which have occurred.

[40] A respondent takes a risk in failing to provide an explanation. But the intention of the Act is achieved by applying the test in Comcare so that the court or tribunal is unable to make a finding of discrimination unless satisfied by rational deduction and more than mere speculation, guesswork or assumption, that discrimination has occurred.

[41] Finally I am mindful of s 208 of the Act which provides that QCAT is not bound by the rules of evidence and that it must have regard to the reasons for the enactment of this Act as stated in the preamble,[7] and may draw conclusions of fact from or adopt the findings of, a court or tribunal in other proceedings.

[53]

[46] On my findings, on day one at about 7am which was about an hour and a half after the start of the shift that day, Mr Barrington was working close to Ms McCauley. There was a perfume smell in the air and Mr Barrington commented about it to Ms McCauley. They discussed together where the smell might be coming from. Then Mr Barrington leaned towards Ms McCauley and, sniffing in the air, said "it smells like Old Spice to me .. yes it is definitely Old Spice .. I know the smell of Old Spice because I have been given some by my grandfather who has since passed away". In doing this and sniffing the air around Ms McCauley, Mr Barrington was indicating that she smelt like Old Spice.

[47] For Mr Barrington this was a joke. He continued with that theme during that day and for the next two days when he happened to be working near Ms McCauley or passing near her.

[48] He would sniff the air around Ms McCauley and say such things as "Oh I can still smell it .. there is that Old Spice smell again" or "you smell like Old Spice". This happened about four or five times on each of the three days that she worked in the kitchen.

[49] On some of these occasions Mr Barrington would ask or pretend to ask, others also working in the cold room, while sniffing the air around Ms McCauley, if they could also smell Old Spice.

[50] After a while, Mr Barrington started to make growling noises at Ms McCauley. On at least one occasion, Mr Barrington explained to her that he was making growling noises because she was a "bit of a cougar". As time progressed over the three days, the growling noises became more frequent than the Old Spice comments, and Mr Barrington started when making these noises to lean towards her and make them in close proximity to her neck and ear.

[51] Whilst at first Ms McCauley was willing to put up with Mr Barrington's behaviour, she did not encourage it. She tried to ignore it and to carry on with her work. She shied away or turned away from him and she thought she had demonstrated her discomfort by doing so. On my findings, Mr Barrington was not aware that Ms McCauley was reacting to his behaviour in this way. He was insensitive to her reaction.

[52] On the first day after he had started to make growling noises at her she said to him that what he was doing was unnatural, that she was old enough to be his mother and that she found what he was doing to be disgusting. Mr Barrington replied that there was nothing to be worried about because he was a happily married man. Again, Ms McCauley thought at that time that she had made it clear to Mr Barrington that his actions were unwanted. However, he did not realise this because of his lack of sensitivity to her reaction.

[53] For this reason, Mr Barrington did not stop. There were other occasions when Ms McCauley tried in vain to admonish Mr Barrington for his behaviour. Since this was not having the desired effect, she expressed her disapproval more strongly.

[54] On one occasion which on the balance of probabilities I find to be the third day, when Mr Barrington was continuing his behaviour, Ms McCauley told him that he really was an arsehole and that he should back off and fuck off. On this occasion, it was clearer to him that his behaviour was unwelcome and he apologised, but this did not stop his behaviour altogether.

[55] At the end of Ms McCauley's shift on the third day Mr Barrington said to her "come on give us one last growl before you go". Ms McCauley responded in exasperation.

[56] I turn now to Mr Barrington's intention in behaving in this way and Ms McCauley's understanding of his behaviour. Mr Barrington says that at the time there was no particular meaning attached to the words "Old Spice". And Ms McCauley did not think so either. In hindsight Ms McCauley thinks that Mr Barrington might have stretched the word "old" when saying that word and it may have been a reference to her age (at that time 49 years old) but she did not think this at the time. She also had some other theories as to what the reference to Old Spice might have meant,[8] but she was not sure about this.

[57] Ms McCauley was unhappy with Mr Barrington sniffing the air about her, since she regarded this as an invasion of her personal space. She was also unhappy when Mr Barrington involved others or pretended to ask others while sniffing the air around her, if they could smell Old Spice. She regarded this as a joke at her expense.

[58] Both Mr Barrington and Ms McCauley were aware at the time that the word "cougar" was used in slang to mean an older woman who was keen to have sex with a much younger man. Both of them understood that the growling was also a reference to the same concept because it was supposed to be the noise of a cougar.

[54]

[59] In making the findings of fact set out above, I am accepting the evidence of Ms McCauley. I found her to be a very straightforward and honest witness.

[60] As for Mr Barrington's evidence, it is significant that in a statutory declaration made very soon after these events, he admitted some things but did not deal fully with all the allegations being made by Ms McCauley. So he neither admitted nor denied these other allegations in his statutory declaration. This happened for reasons which I need to turn to later. But it means that in substance therefore, the only difference at that time between his version of events and Ms McCauley's is that Mr Barrington says he did not realise that Ms McCauley was upset about his behaviour. In his affidavit filed in these proceedings, made some three years after the event, he did expressly deny some of Ms McCauley's allegations. However, when giving evidence, he accepted, or at least accepted the possibility of, some of these that he had previously denied. His evidence was not consistent, therefore. I regard it as much less reliable than Ms McCauley's evidence.

[61] I also consider that Ms McCauley's recollection of events is likely to be much better than Mr Barrington's and of the other witnesses called by the Respondents because of the upset caused to her. The events have stuck with her. She remembers them clearly and she has very largely been consistent in her recollection of them.

[62] In any case there was a fair amount of corroboration for Ms McCauley's version of events. In this respect I disagree with submissions made on the Respondents' behalf there was not.

[63] It is also said that those people who Ms McCauley says should have witnessed these things did not notice them happening. The explanation for this is that everyone was working in a busy noisy kitchen and were very busy with their own things to do. There is evidence that general banter and strong language was not unusual in this environment. These things, plus in some cases the passage of time, blurring the ability of the witnesses to recall, explains the lack of corroboration from those also working in the kitchen.

[64] For example, Ms McCauley says that Danielle Briggs the Human Resources Manager at the Resort was on the other side of the workbench when she said to Mr Barrington that his behaviour was unnatural and that she was old enough to be his mother, to which Mr Barrington responded you have nothing to worry about I'm a happily married man. If Ms Briggs overheard this exchange I do not think that its significance would have been obvious to her at the time. She had the task that day of co-ordinating agency staff and was very busy with her own kitchen work. I believe that she would have avoided if possible voluntarily becoming involved in human resources matters. It would have been different if a direct complaint had been made to her then by Ms McCauley. Ms McCauley also says that Andrew Waszkiewicz the Chef de Partie was present during this exchange but again I find that he would have been oblivious to its significance.

[65] Another example is that Ms McCauley says that Mr Waszkiewicz was present when she told Mr Barrington that he was an arsehole and should back off and fuck off, after which Mr Barrington apologised. She says that Mr Waszkiewicz was looking at them at the time and was about two metres away from her and Mr Barrington. Mr Waszkiewicz does not now recall these words being said. But as I have found later in these reasons it was never put to him prior to the hearing of this matter (some three years after the event) that these words were said. Even if he did hear these words it is not surprising given the passage of time that he cannot recall them.

[66] Mr Waszkiewicz did say soon after the events that he witnessed a conversation about Old Spice and also Mr Barrington's one last growl comment at the end of the shift on day three. He therefore corroborated these things.

[67] There is also corroboration from Ms Biggs who heard the words "Old Spice" and also from the information volunteered by Mr Barrington himself.

[68] There is also corroboration for Ms McCauley's version of events from her own reaction as reported by others. This was soon enough after the events to have some value. It is reported in the investigation report in what appears to be summaries of statements made by various people (the actual statements of these people are not in the papers). No less than five people reported that on day four (7 March 2010), Ms McCauley spoke to them about what had happened. The allegations being made by Ms McCauley were remembered differently by these people but included Mr Barrington making innuendos, growling at her like a cat, coming up behind her and growling, acting in a sexually inappropriate way, and referring to Old Spice and cougars. One witness said that Ms McCauley had said she asked him to stop but it continued. One witness described Ms McCauley saying that she was very offended, embarrassed and upset by what had happened. Another said that Ms McCauley was upset for the next couple of days. Another said that three days later she was crying about the matter.

[69] Against this, in the investigation report were comments by some people that nothing seemed amiss in the kitchen and that Ms McCauley did not appear to be offended at the time.

[55]

[70] For the purposes of the first statutory test for sexual harassment, I have no hesitation in concluding that Mr Barrington subjected Ms McCauley to unsolicited acts of physical intimacy (by on several occasions between 4 and 6 March 2010 leaning close to her when sniffing the air around her and growling in her ear and around her neck). Also that he made remarks with sexual connotations relating to her (by on several occasions between 4 and 6 March 2010 referring to her as a cougar and on 6 March 2010 asking her for one last growl before she went) and engaging in unwelcome conduct of a sexual nature in relation to her (by on several occasions between 4 and 6 March 2010 making the Old Spice comment and/or making growling noises, while at the same time leaning close to her, and also by referring to her as a cougar and on 6 March 2010 asking her for one last growl before she went).

[71] I turn to the second statutory test for sexual harassment. At first, I do not think that Mr Barrington had the intention to offend, humiliate or intimidate Ms McCauley. He was not aware from her attempts to shy away from him or her turning away from him that she was offended. And her admonitions to him prior to the third day did not get through to him that he offending her. On the third day as a result of the stronger words that Ms McCauley used, he finally became aware that he was offending her. This is demonstrated by the fact that he apologised on that day. However this did not stop his behaviour altogether. Therefore after that time he deliberately continued his behaviour in the knowledge that it would offend her. To my mind this is sufficient to satisfy the test of intention. So I find that after that time on the third day he engaged in the conduct with the intention of offending her.

[72] In any case, a reasonable person would have anticipated even from the outset (that is, before any admonitions) the possibility that Ms McCauley would be offended or humiliated by the conduct. This is because it is a distinct possibility that someone in Ms McCauley's circumstances would be offended by having their personal space invaded, being referred to as a cougar and being growled at because of that reference and by the references to Old Spice.

[73] Accordingly I do find that the conduct I have found was sexual harassment within the meaning in section 119 of the Act.

[58]

[76] The way the investigation was handled is important because it is relied on as an act of victimisation or at least as evidence to support the victimisation case. It also has great importance on the question of causation and on the appropriate award to make.

[77] On day three Ms McCauley finished her shift at about 12 noon. She came into work the following day, which was a Sunday and as I have referred to above, she mentioned to several people at work what had happened and how upset she was about it. There was no manager there that day to whom she could make a complaint. She could have reported it to Ms Briggs as Human Resources Manager, but I accept Ms McCauley's evidence that she did not wish to do this as she did not think Ms Briggs would deal with it properly because she thought she should have intervened between herself and Mr Barrington.

[78] On Monday 8 March 2010 Ms McCauley was not working at the resort. On Tuesday 9 March 2010 she informed her supervisor Melissa Potts about Mr Barrington's behaviour and asked to see the general manager of the resort, Greg Magi.

[79] Ms McCauley told Mr Magi what had happened. On hearing the complaint, he contacted Ms Briggs and asked her to investigate the matter. Ms Briggs spoke to Ms Potts and gave her a statutory declaration form to give to Ms McCauley for her to complete.

[80] Ms Potts gave this form to Ms McCauley and said to her that Ms Briggs wanted to know what she hoped to achieve by all of this. The use of these words is something relied on by Ms McCauley to demonstrate that her employer was not interested in her complaint and to support the notion that subsequent events amounted to victimisation. Ms Briggs is not sure whether she might have said something on these lines to Ms Potts.

[81] Ms Briggs started the investigation but about three days later she handed it over to Alan Turnbull in the First Respondent's head office in Melbourne. Mr Turnbull was the First Respondent's Employee Relations and Remuneration Manager. He completed the investigation and by 22 March 2010 he had decided that it was not substantiated. On that date, he or his office informed WorkCover of this decision. On 26 March 2010 a formal decision was signed off to that effect by Human Resources.[9] In a meeting on 22 April 2010 Ms McCauley was informed of the decision reached.

[82] Mr Turnbull got involved as follows. There was a very difficult meeting on 11 March 2010 between Ms McCauley, Ms Briggs and Michelle Haynes the manager of the Kalinda restaurant. From Ms Briggs' perspective she wanted to know how Ms McCauley wished to proceed - effectively whether the complaint should be dealt with informally (which would result in a meeting between both sides) or whether it should be dealt with as a formal complaint. At that meeting Ms McCauley challenged Ms Briggs that she must have witnessed her admonishing Mr Barrington. However Ms Briggs said she did not witness it. They both became upset.

[83] Because of Ms Briggs' denial about this, Ms McCauley was convinced that Ms Briggs was covering up for Mr Barrington. She suspected that this was because Ms Briggs did not want to take her complaint seriously for one reason or another.

[84] As a result of this meeting Ms Briggs made the decision that she ought not to continue with the investigation of the complaint. So, through the general manager of the resort, Mr Turnbull of head office was asked to take it over.

[85] In this claim it is said that finding the allegations not to be substantiated was itself an act of victimisation by the First Respondent. It is said itself to be a detriment because of the complaint of sexual harassment. It is also said to indicate that the employer had little interest in the complaint and wanted to brush it under the carpet. It is said that this reveals a motive to victimise Ms McCauley later by taking unwarranted disciplinary action when it was clear she was not prepared to drop the matter.

[86] It is necessary for me therefore to consider the First Respondent's motive in reaching the conclusion that the complaint was not substantiated.

[87] I do think that the decision reached by Mr Turnbull and by Human Resources that the allegations were not substantiated is a very surprising one.

[88] As I have said earlier, not all the documentation relating to the investigation was provided by the First Respondent for the hearing of this matter. It is likely that Mr Turnbull had before him a number of witness statements. These are missing from the papers. The investigation report does not exhibit them but provides only a summary of what the witnesses said. Mr Turnbull would however have been likely to have had the statutory declarations of Ms McCauley and of Mr Barrington. In the light of this, the evidence available to Mr Turnbull which corroborated Ms McCauley's complaint was:-

(a) In his statutory declaration Mr Barrington admits having said to Ms McCauley that she was wearing Old Spice,[10] and for the rest of the day joked about that and possibly also joked about it on the second day.

(b) Mr Waskiewicz heard Ms McCauley and Mr Barrington having a conversation about "Old Spice". Ms Briggs who was also working in the cold room at the time heard the words "Old Spice".

(c) In his statutory declaration Mr Barrington admits saying something to her on day two about her being a cougar.

(d) Mr Waskiewicz witnessed Mr Barrington saying to Ms McCauley at the end of her shift on the third day "come on give us one last growl before you go".

(e) On day four (Sunday 7 March 2010) Ms McCauley spoke to five co-workers about what had happened. These witnesses variously recited the complaints made by Ms McCauley about Mr Barrington that day as being that Mr Barrington had making innuendos, growling at her like a cat, coming up behind her and growling, acting in a sexually inappropriate way, and referring to Old Spice and cougars. One witness said that Ms McCauley had said she asked him to stop but it continued. One witness described Ms McCauley saying that she was very offended, embarrassed and upset by what had happened. Another said that Ms McCauley was upset for the next couple of days. Another said that three days later she was crying about the matter.

[89] On this evidence Mr Turnbull was rightly satisfied in his Investigation Summary that Mr Barrington did make "comments regarding ... old spice".

[90] Mr Turnbull was also satisfied that Mr Barrington did make "comments regarding ... cougars". It is not clear whether Mr Turnbull was also satisfied that he had called Ms McCauley a cougar. Mr Turnbull may have been unsure about this, but he did know that Mr Barrington made a comment to Ms McCauley about "being a cougar". These words were in Mr Barrington's statutory declaration.

[91] What Mr Barrington was admitting to here was clearer from Mr Barrington's interview with Ms Briggs on 10 March 2010 when he said that he had said to Ms McCauley "you are a bit of a cougar". The note of this interview was in a "record of conversation" signed both by Ms Briggs and Mr Barrington and appears in exhibit DRB-3.

[92] On the findings that he made, Mr Turnbull concluded that "a reasonable person in similar circumstances would view the comments as light hearted and not derogatory".

[93] I find that on the balance of probabilities DRB-3 was never provided to Mr Turnbull. I say this because had this been done then inevitably Mr Turnbull would also have been satisfied that Mr Barrington had called Ms McCauley a cougar and his conclusion would have been different. As he noted in his report, the "pop culture definition of cougar; an older woman that has sexual relationships with much younger men". It would then follow that a reasonable person would anticipate the possibility that the other person would be offended if they were called a cougar, even in jest. This would satisfy the test for sexual harassment in the Queensland legislation, and the closely similar test in the Sex Discrimination Act 1984 (Cth), and also the definition of harassment in the First Respondent's own fair treatment policy.

[94] This would have been the case even if Mr Turnbull accepted the evidence from some of the co-workers that they witnessed Ms McCauley joking around with Mr Barrington and there was no tension in the kitchen. This is because this itself would not give the answer to the statutory test.

[95] It is notable that WorkCover was able to conclude "without a doubt that the events alleged by Ms McCauley did take place" and caused an injury as a direct result.[11]

[96] So it appears from the evidence before me that a serious mistake was made by the First Respondent in failing to put the record of Ms Briggs' first interview with Mr Barrington before Mr Turnbull. If in fact it was provided to him then Mr Turnbull's decision cannot be explained at all.

[97] Another real problem with the process that was followed was that Mr Barrington was never asked for his comments about Ms McCauley's allegations in full. This meant that his statutory declaration was limited to what information he considered it right to volunteer, in the light of a complaint that he had upset Ms McCauley. Since he was largely insensitive to what had upset Ms McCauley, he was unable to identify the information required.

[98] In turn, this means that had the full case been put to him at that time, Mr Barrington would have been likely to have admitted to a lot more than he actually did admit in his statutory declaration. This is shown to be likely because it actually did happen in the hearing before me. When Ms McCauley's allegations were put to Mr Barrington in cross-examination he did admit that certain things had happened, or could have happened as Ms McCauley said, when previously he had been silent on such matters, or at least had not denied them until his affidavit filed just a few days before the hearing.

[99] This extraordinary situation arose as follows. After the general manager of the resort Mr Magi had seen Ms McCauley on 9 March 2010, he spoke to Ms Briggs the Human Resources manager, and told her orally and in brief what the complaint was about. He asked her to investigate it. Instead of seeing Ms McCauley first to get a full account of what happened, Ms Briggs saw Mr Barrington the next day 10 March 2010 and asked him what had happened. She asked him to write down what happened and to make a statutory declaration. Mr Barrington did this the same day. But at that time Ms Briggs only had the barest of the information about the complaint, relayed to her orally by Mr Magi. She was aware from Mr Magi that Ms McCauley was saying that there had been references to "Old Spice" and to "cougar" and that there had been growling. But she was not aware of the context of these things. This meant that she could not, even if she had wished to, see if Mr Barrington admitted to any of the other important things alleged by Ms McCauley such as being told off by her or the detail or context of the conversations.

[100] In any case, Ms Briggs took the view that it was not her role when interviewing Mr Barrington to prompt him with Ms McCauley's full complaint. Instead she thought it best to leave it to Mr Barrington to volunteer whatever information he wished to give in response to the complaint that he had upset Ms McCauley. This approach was never going to work properly in a sexual harassment case where the perpetrator may well be totally insensitive to the perceptions of the victim (whether reasonable or unreasonable).

[101] This error was compounded by the fact that Mr Barrington was not interviewed again. This meant that his statutory declaration made on the day of that meeting stood as his statement in the investigation. The first time Ms McCauley's allegations in full were put to Mr Barrington was at the hearing before me.

[102] There was another serious lacuna in the investigation of this matter. In her statutory declaration, Ms McCauley referred to two specific occasions when she rebuked Mr Barrington.[12]

[103] The first time was on 4 March 2010 when she said to him "this kind of behaviour is unnatural Steve, I'm old enough to be you mother, this is disgusting" whereupon Mr Barrington replied "you have nothing to be worried about, I'm a happily married man". Ms McCauley said that those present at this exchange were Ms Briggs, Mr Waszkiewicz and Nathan Meredith.

[104] The second time was after Mr Barrington was close to her in the cool room and he made growling noises at her. When they came out of the cool room Ms McCauley told Mr Barrington to "fuck off" in front of Mr Waszkiewicz the Chef de Partie, whereupon Mr Barrington said "sorry, sorry".

[105] Now the problem is that these people were not specifically asked in the investigation whether these things happened,[13] although both Ms Briggs and Mr Waszkiewicz expressed the general view that Ms McCauley did not appear offended or upset. Mr Meredith was not interviewed at all. It is impossible to speculate whether Mr Waszkiewicz or Mr Meredith might have recalled the exchanges had they been asked about them at the time. If they had recalled them this would have been powerful evidence to support Ms McCauley's version of events.

[106] So there were three serious errors made in the investigation by the First Respondent:-

(a) Ignoring Mr Barrington's admission that he had called Ms McCauley "a cougar".

(b) Not putting Ms McCauley's allegations in full to Mr Barrington to get his response.

(c) Failing soon after the event or at all, to put to those who may have overheard them, her rebukes of Mr Barrington.

[107] The net result of these errors was that the First Respondent reached a conclusion on Ms McCauley's complaint which no reasonable employer would have reached.

[59]

[108] What happened after 11 March 2010 needs to be described in some detail because Ms McCauley says she was victimised over this time. The question also arises whether if she suffered a detriment and loss of earnings over this time this was legally caused by the sexual harassment.

[109] A face to face meeting between Ms McCauley and Mr Barrington was arranged for 12 March 2010.

[110] I accept Ms McCauley's evidence that after she left work after the difficult meeting of 11 March 2010, she experienced uncontrolled sobbing, fear, fear of job repercussions, panic and a severe headache. Because of these symptoms, she made an appointment to see the doctor the following day. She also telephoned Ms Haynes at work and told her she was not feeling well and could not attend the face to face meeting the following day.

[111] Ms McCauley had clearly found the meeting on the 11th very upsetting and confrontational. She was also fearful about the face to face meeting with Mr Barrington that was planned for the next day. On the evidence that I heard I am sure that had Ms McCauley considered that her employers were more supportive in her complaint then she would have been happier to attend the meeting. As it was, she considered that the meeting would go against her.

[112] Ms McCauley remained off sick for nearly three months.

[113] Whilst off sick Ms McCauley sought medical assistance. She saw Dr Mark Phoon at her local clinic and she told him about the sexual harassment. He prescribed Valium and advised her to take a week off work. Six days later when she saw him, he gave her a sick certificate marked "sexual harassment"[14] which covered her until 31 March 2010. Dr Phoon referred her to Dr Louise William, a psychologist. Soon after, Dr William referred Ms McCauley to a psychiatrist, Dr Maxwell Katz.

[114] At that time Ms McCauley was feeling very stressed, panicked, tearful and overwhelmed by the events. I accept that she had a deep fear about facing all the gossip that would await her upon her return to work, and a fear of meeting Mr Barrington again.

[115] Roughly about this time Ms McCauley made a further statement to Mr Turnbull which is not in the papers. A summary of it appears in the investigation report. Ms McCauley said that in reliving the events she was suffering severe headaches, fear of repercussion and feelings of panic. I accept the accuracy of this.

[116] Ms McCauley saw Dr Katz on 29 March 2010 and he prescribed medication (anti-depressants and sleeping tablets). The next day Dr Katz prepared a medical report for WorkCover which stated that Ms McCauley was suffering from an adjustment disorder with mixed anxiety and depressed mood, where work was a significant contributing factor. He identified the stressor as sexual harassment.

[117] Over the ensuing weeks, Ms McCauley saw Dr Katz on a weekly basis. She was receiving psychiatric counselling. She continued with the medication and she also had ongoing support from her GP. She had certificates showing that she was off sick over this time for the same reason as stated before: sexual harassment.

[118] While off sick Ms McCauley was contacted by Anne James, the executive assistant to the general manager and was asked to come in to work. She was told that the First Respondent had reached a decision on her case. She attended a meeting on 22 April 2010. The meeting was formal. Present were Mr Magi the general manager, Michelle Haynes manager of the Kalinda restaurant, and Ms James who took minutes. Ms McCauley was allowed to bring a friend and she attended with Debbie Burnup who gave evidence at the hearing. At the meeting Ms McCauley was told the result of the investigation by Mr Magi. In respect of her allegations she was told that "nothing could be substantiated". Mr Magi also pointed out that since remarks had been made by Mr Barrington this was regarded as "bullying" and he would be given a refresher course on equal employment opportunity.

[119] Ms McCauley misunderstood what Mr Magi said to her and thought that at the meeting he had referred to her complaint as being of bullying, rather than of sexual harassment. Whilst this is understandable as a result of the words used by Mr Magi as shown by the minutes (and was also the understanding of Ms Burnup), this was not what Mr Magi said.

[120] The meeting upset Ms McCauley. Ms Burnup remembers at one point in the meeting she cried. I accept that what happened at the meeting added to Ms McCauley's view that she was not being supported by her employers in the matter. As can be seen from the passages from Dr Katz's opinion evidence given below, this made Ms McCauley's return to work more difficult and sensitised her to further problems which arose at work.

[121] Ms McCauley was originally scheduled to return to work on 13 May 2010. She was given a "suitable duties programme", and as part of this the First Respondent gave consideration to a work plan for her return to work, which included trying to minimise the possibility of her coming across Mr Barrington, however this was something which was impossible to avoid. At this time she was still on medication and was still feeling anxious and nervous. It would appear that the medication she was on at that time did not suit her at all. She described being extremely agitated and feeling unwell, very verbal and quite manic - doing crazy things around the house in the middle of the night[15].

[122] Seemingly because of this, Dr Katz provided a further certificate to say that Ms McCauley was unfit for work until 1 June 2010 because of anxiety and depression[16]. Meanwhile Ms McCauley's medication was changed and she improved.

[123] Although the evidence is incomplete and inconsistent about the dates of Ms McCauley's actual return to work, it does appear on the balance of probabilities that she returned to work before 1 June 2010, probably on Sunday 30 May 2010. On the day of her return, Ms Potts told her she would need to attend a meeting with Ms Briggs to discuss the change from casual to flexi part-time working. Ms McCauley was still extremely distrustful of, and resentful towards, Ms Briggs. This was because she thought Ms Briggs had tried to protect Mr Barrington and the company from her sexual harassment allegations. The suggestion of a meeting with Ms Briggs resulted in Ms McCauley having another panic and anxiety attack and Ms Potts advised that she should go home. Before she was able to leave, Mr Barrington entered the room and Ms McCauley says, and I accept, that she spun into a "complete meltdown" and was struggling to breathe and she was hiding in the corner of the room. After this incident Ms McCauley saw Dr Katz on an urgent basis and obtained a further medical certificate.

[124] Ms McCauley returned to work on 3 June 2010 and on that day she attended two meetings.

[125] The first meeting was with Ms Briggs to discuss the new contract to put Ms McCauley on permanent flexi part-time working.

[126] The second meeting on this day was immediately after the first one. This was a discussion between David Callaghan who was the Food and Beverage Operations Manager and Ms McCauley. It was called because two of her colleagues had reported to management that she was complaining to them at work about the way her sexual harassment complaint had been handled and that she was saying such things as she would make the hotel pay.[17] These colleagues were saying that Ms McCauley was interfering with their work and they didn't want to listen to it. Mr Callaghan gave her a caution.

[127] The question has arisen whether this second meeting amounted to a form of disciplinary action. There was nothing given to Ms McCauley in writing. It was not a "first warning" within the "Managing Unacceptable Conduct" policy. However it was not "Informal Counselling" either. This is because the aim of informal counselling in the policy is to reach agreement with the employee as to progress. The meeting was recorded and there was a note taker present. The caution was imposed on her, there was a minute taken of this, and this was placed on her personnel file. In my view it was sufficiently formal to be a form of disciplinary action. This is because the caution could have been taken into account in subsequently disciplinary action.

[128] Ms McCauley had little warning about this meeting and before it started she did not know what the meeting was about.

[129] In this meeting, Ms McCauley explained that when she was asked by colleagues about her absence she had gone into detail about the reason for it. She explained that she had been rather verbal in her answer and this could be an effect of the medication she was on. She was also in total agreement with Mr Callaghan that it was wrong to continue to talk about such matters to people who were not involved. And she explained that she had never been told not to talk about the matter to her work colleagues. She further explained that she had relied on the support of her work colleagues at the time of the harassment in her decision to report it.

[130] Prior to the meeting Ms Briggs had instructed Mr Callaghan to hold the meeting and to give Ms McCauley a caution. And so he cautioned Ms McCauley at the beginning of the meeting and before she was asked to respond to the accusations made against her or to explain them. Pre-determining the matter in this way was contrary to the procedures recommended in the manager's guidance "Managing Unacceptable Conduct" which required that employees were to be given an opportunity to respond to an unacceptable conduct allegation before a decision is made about any action to be taken.

[131] The way this meeting was handled did little therefore to assuage McCauley's view that she was receiving little or no support from her employers about what had happened back in March.

[132] Following these two meetings Ms McCauley describes herself as extremely emotionally distressed, "sobbing and an emotional wreck". She had been upset by them. She says looking back on it that she was in the throes of a complete breakdown and could barely breathe and was shaking.

[133] Ms McCauley managed to recover herself and continue working between 3 June 2010 and 12 July 2010 but it cannot be said that she was happy at work. In particular she had complaints about a change of rosters and being asked to work in the banquet area without an appropriate uniform. These problems are described in some detail in the QIRC appeal decision in paragraphs [42] to [55].

[134] Over this time she was still seeing Dr Katz every week for psychiatric counselling. She was also still on medication prescribed by him.

[135] On 12 July 2010 Ms McCauley suffered a panic attack on waking, and called into security at the resort at 4.35am to say that she was unable to come into work that day. She was expected to come in that day at 5.30am.

[136] The following day on 13 July 2010 due to a mix up, a large number of guests arrived for breakfast much earlier than expected. This meant that there was a lot of work to do early in the shift, but much less to do later. Because of this, Ms McCauley was asked to stand down from 8.30am. Ms McCauley objected to this saying that she had worked very hard earlier that day and it was therefore unfair to stand her down once it had become quiet.

[137] The following day, 14 July 2010, Ms Haynes called Ms McCauley to a disciplinary meeting. At the meeting Ms McCauley was told that when she had called in sick on 12 July 2010 she had failed to give two hours notice. As a result of what was said in this meeting, Ms Haynes prepared a written warning and later that day issued it to Ms McCauley who signed it.

[138] The reasons noted in the warning signed by Ms McCauley for her panic attack on 12 July 2010 was that her father had been admitted to hospital, her weekend shifts had been cancelled and she had a prospect of completing two shifts in the Banquets department. There was a reason why Ms McCauley was anxious about working in the Banquets department. There was no uniform available to her to wear because despite the employer's efforts, the right size could not be found.

[139] The fact that these things appeared in the warning document demonstrates that Ms McCauley had been given a chance to explain what had happened on 12 July 2010. But the decision to give her a written warning had already been taken. This was because Ms Briggs had already advised Ms Haynes that this was the appropriate penalty to impose.

[140] The First Respondent now accepts that it was wrong to give this warning because of uncertainty about the notice that Ms McCauley was obliged to give. The RACV Clubs and Resorts Collective Agreement 2009-2011 bound the First Respondent and all employees at RACV Clubs and Resorts.[18] Clause 16.1 covers the paid sick entitlement for employees other than casual employees. In this section appears this passage:-

[64]

[142] There were no provisions expressly applying to casual employees who were not entitled to sick leave. Ms McCauley had been a casual employee until 4 July 2010 although there seems to have been a delay in the implementation of her new contract. It would appear that after that time (and at the time in question) she was required to give notice, and that the collective agreement would prevail. There was another difficulty with the two hour provision. For workers who were due in very early, for example a 5.30am shift as on this occasion, it could be very difficult to give the two hours notice. Further as pointed out by Ms McCauley, the Department Manager would be difficult to contact by telephone at that time since they would normally arrive themselves at the beginning of the shift or later.

[143] It is not surprising therefore that there was confusion as to the correct notice to be given to the employer if an employee could not make it into work.

[144] After signing the written warning, Ms McCauley left work. She made an appointment to see Dr Katz. She did not return to work after that. It is important for me to decide why this was so and I consider this when dealing with the effect of the harassment below.

[145] Ms McCauley saw Dr Katz on 15 July 2010, that is the day after this meeting. He issued a certificate of unfitness to work from 15 July 2010 to 30 July 2010. The following day, on 16 July 2010 Ms McCauley lodged a further application for compensation with WorkCover. Having investigated the management issues, WorkCover informed Ms McCauley on 18 August 2010 that her claim was rejected because her injury had been caused by reasonable management action. Ms McCauley sought a review of that decision by Q-COMP and when that was unsuccessful she appealed to the QIRC.

[146] The subsequent events I consider further below when considering the effect of the harassment. The main thing which happened was that Ms McCauley made a decision to change her career and in April 2011 she started a Certificate 3 course in community services to enable her to do this. And on 19 January 2011 she was involved in a car accident in which her father was fairly badly injured.

[67]

(i) Applying an out of date and stricter sickness policy which required two hours notice instead of one hour.

[148] In addition to the above, on behalf of Ms McCauley it is submitted that I should reach an inference that had Mr Turnbull been called, his evidence would not have assisted the Respondent's case. In my opinion, if Mr Turnbull had been called it would be very unlikely that he would admit to not treating Ms McCauley's complaint seriously, or to a desire to brush it under the carpet. Whilst his evidence would have been useful, I cannot reach any inference adverse to the Respondents because of Mr Turnbull's absence given the fact that a respondent in claims under the Act has no obligation to disprove anything unless the complainant has a sufficiently strong case.

[149] Another point was made in the complaint as referred, that it was wrong to require Ms McCauley to have a face to face meeting with Ms Briggs. This point does not seem to be pursued, but in any case it is my view that due to the lack of HR resources at the Resort this was the only reasonable option available to the First Respondent. It was also an opportunity, which was reasonable to take, to try to repair the relationship between them.

[150] When considering the submissions above about the investigation and the result of it I have in mind that I have decided that there were three serious errors made by the First Respondent in the investigation and the decision making of Ms McCauley's complaint. These errors encompass items (a), (e) and (f) on the list.

[151] Only the Respondents are in a position to explain why these things went wrong. There is no satisfactory explanation in the evidence. Fuller disclosure may have demonstrated what actually happened. Mr Turnbull would no doubt have been able to help. One possibility is, as put forward on Ms McCauley's behalf, that there was an "agenda" to sweep the complaint under the carpet. However another is that the Human Resources department was hard pressed, understaffed and overworked which was certainly the evidence before me. And so much so that mistakes of this sort could happen more easily. It is only a matter of conjecture. I am not persuaded that the probability is that the employers wished to avoid making a finding that there had been sexual harassment.

[152] On the other specific matters in this list, as for (b) as I have found, I believe Mr Turnbull did interview Ms McCauley because there was more material in the investigation report than appears from her statutory declaration.

[153] I turn to (c) which is the question of Ms McCauley what she hoped to achieve by all this. The problem with relying on this comment to support an inference of victimisation is that one of the things Ms Briggs needed to know from a human resources perspective is whether Ms McCauley wished to make a formal complaint about what had happened or whether she was content to try to deal with it informally in the first instance. This was discussed by Ms Briggs at the meeting of 11 March 2010 and was on her mind. It was most unfortunate that earlier Ms Briggs left it to Ms Potts to make this enquiry of Ms McCauley because it would appear that there was no explanation why it was being asked. Ms McCauley therefore thought that it meant that Ms Briggs was not interested in her complaint, when in fact the opposite was the case: Ms Briggs was enquiring how Ms McCauley preferred it to be handled.

[154] As for (d), I do not regard that not allowing a complainant an opportunity to comment on the proposed findings of an investigation is so unusual as to need further examination. In any case I note that this is not required by the applicable policy ("Addressing Unfair Treatment at Work").

[155] As for (g) I do not agree that Mr Magi referred to Ms McCauley's allegation as "bullying" rather than of sexual harassment as I have found above.

[156] However I am surprised that the meeting of 22 April 2010 was organised when, and in the way that it was. The First Respondent was aware that Ms McCauley was sick because of the sexual harassment which she alleged to have taken place. It was also aware that her sick notes stated that she was suffering from an adjustment disorder with mixed anxiety and depressed mood, that she was still receiving treatment for this, and that WorkCover had accepted her claim for compensation and that she had suffered a work related personal injury.[19]

[157] In the circumstances inviting her to a formal meeting to give her the bad news that her allegation of sexual harassment was not substantiated was almost certainly going to exacerbate her condition and this is exactly what happened. As Dr Katz put it when giving evidence before the QIRC, it would play right into the hands of the sexual harassment itself.[20] It would not appear that other ways of informing Ms McCauley of the outcome of the investigation and her complaint were considered nor any advice taken as to the best way to inform her. Again there is no explanation about these matters, but I do regard it as quite unlikely that the First Respondent did it this way to make things difficult for Ms McCauley. The most likely explanation is that there was a lack of understanding or thought applied as to the best process to follow.

[158] Turning now to the first disciplinary action taken against Ms McCauley, some action needed to be taken arising from co-workers complaints that Ms McCauley was interrupting their work by talking to them in a verbose manner about the sexual harassment and the way in which her complaint had been handled. As it turned out, as Ms McCauley explained at the meeting, her verbosity and possible obsession at that time seems to have been a side effect of her medication. It was therefore unfortunate that the fact of her guilt and also the penalty to impose on her had been pre-determined and also delivered to her before she was given a chance to explain.

[159] The second disciplinary action taken against Ms McCauley was for giving short notice when she was unable to attend work due to sickness. The collective agreement required 60 minutes notice or as soon as practicable. On Ms McCauley's explanation for the short notice any reasonable employer would have found that she did so as soon as practicable. In any case it was only five minutes short of the 60 minutes.

[160] In addition to this the fact of Ms McCauley's guilt and also the penalty to impose on her had again been pre-determined. Although she was given a chance to explain, she still received a written warning. In these circumstances, the First Respondent has rightly conceded that the disciplinary action was not fair or warranted.

[161] As for the motives in dealing with Ms McCauley in this way, I think that what happened was a product of limited human resources advice and expertise at the resort. Ms Briggs was the only human resources manager, and she was also expected to do other work. A number of things demonstrate that she was pressed very hard. Although she had support from head office in Melbourne a number of things demonstrate that communication with Melbourne was not complete or produced sensible results.

[162] Whilst finding it very strange that Ms Briggs was not aware of the terms of the collective agreement I do accept that this was a genuine mistake. On my finding what happened was not an attempt to make things difficult for Ms McCauley.

[163] I have considered each of the things which may have led me to reach an inference of victimisation separately. But it is right to stand back and consider their effect overall. This is because each of them separately may not be sufficient for me to reach an adverse inference but together they may paint a different picture. When considering this, I come back to the fact that there was insufficient human resources support in the Resort. Had there been better support locally, Ms McCauley's case could have been handled with the sensitivity and expertise that it required and I think that some greater effort would have been made to do this.

[164] For these reasons taking an overall view of these matters of concern, I am unable to infer from them and all other circumstances in the case, that Ms McCauley was victimised because she brought her sexual harassment complaint.

[71]

[177] One question arises which may be of importance in this case. This is whether the principle of remoteness of damage applies to awards under the Act. If it does apply, then compensation ought to be limited to the extent to which the loss or damage caused by the harassment or discrimination was a reasonably foreseeable consequence of it. The point was considered in the English case of Essa v Laing Ltd [2004] EWCA Civ 2; [2004] IRLR 313. In that case, by majority, the Court of Appeal decided that the complainant should be compensated for losses arising directly and naturally from the wrong rather than being limited to those losses which were reasonably foreseeable. This decision was made largely on policy grounds (it being unnecessary to restrict awards in harassment and discrimination cases to those losses which were reasonably foreseeable at least in cases of deliberate acts).

[178] As far as I am aware, the Australian courts have not expressed a view on this point in discrimination cases.

[179] I note that section 209(1)(b) refers to a complainant being awarded compensation for loss or damage caused by the contravention, and does not limit this to such loss or damage which is reasonably foreseeable as resulting from the contravention. Such words could easily have been added by the legislature if this had been intended.

[180] It might be said that the subsection should be read as if those words had been added, however there is no need to do this.

[181] This is because the words of section 209(1)(b) require the tribunal to make an award which it considers "appropriate". There appears to be a two stage process: firstly an assessment of the loss or damage caused by the contravention and then a decision as to the appropriate level of compensation to award for that loss or damage. In this way, unlike in a common law claim for tort or breach of contract, the tribunal would appear to be able to adjust the award away from the actual loss or damage caused by the contravention, to ensure that the award is appropriate.

[182] My conclusion therefore, is that the common law principle of remoteness of damage does not apply to awards under the Act as such. But since the tribunal must make an award that is "appropriate", there is scope to adjust the award once the loss or damage caused by the contravention is ascertained. So for example, a tribunal could adjust the award to allow for losses of a chance, or because there are multiple causes of the loss or damage, or because some of the losses arise from a remote consequence of the contravention. In the latter case the result may well be the same or similar as applying the common law principle of remoteness.

[80]

[192] One thing which left unexplained might have suggested that Ms McCauley was able to cope well with the sexual harassment was that she was originally scheduled to spend only two days in the cold larder. At the end of the second day, despite the harassment from Mr Barrington, she asked the kitchens operations manager Helmut Hubele for a shift there on the third day. She explained this at the hearing in various ways, the most important of which was her need to work as much as she could for financial reasons. I accept these explanations. They demonstrate that at the time she thought she could cope with the harassment.

[193] Further, I accept Ms McCauley's evidence that on day four the harassment began to prey on her mind more than before, and started to cause her more distress and anger. This is amply demonstrated by her comments made to the co-workers on day four and her distress that they witnessed on that day. I accept her evidence that from that time it caused her to have trouble sleeping and feeling nauseous. This is corroborated by one of her co-workers who found her crying at work on day seven (10 March).

[194] I have referred to the reasons given by Ms McCauley for reporting the matter to management on day six instead of earlier and I find that this was the first reasonable opportunity to do so. The way the matter was then handled which I have described (in particular what she hoped to achieve by all of this comment and the fact that Ms Briggs could not attest to the harassment) made Ms McCauley feel unsupported by management in her complaint. The combination of the sexual harassment and this perceived lack of support resulted in Ms McCauley going off sick on 12 March 2010. As a matter of causation, it is clear that Ms McCauley going off sick at that time was a direct and natural result of the sexual harassment.

[195] I also find that the whole period of time Ms McCauley was off work (two months) was a direct result of the sexual harassment. This is clear from the continued medical intervention over that time and the fact that no other contributing factor was identified by Dr Katz in his report at that time, nor has any other factor emerged in the evidence.

[196] Whilst off work Ms McCauley was called in to work and was given the result of the investigation and told that her complaint had not been substantiated. The way she perceived this had been done and the conclusion reached which she regarded as perverse, made her feel very undermined.

[197] In my view Ms McCauley was clearly unfit to return to work when she tried to do so on 13 May 2010. On her second attempt to return to work on 30 May 2010 she suffered another panic attack at the thought of having to attend a meeting with Ms Briggs and also upon seeing Mr Barrington. She had to go home again. It is clear to me therefore that her state at that time was a direct and natural result of the sexual harassment.

[198] After returning back to work on 3 June 2010, Ms McCauley only managed to stay at work for six weeks, going off sick again as from 15 July 2010.

[199] On the question whether the sexual harassment caused Ms McCauley to go off sick again as from 15 July 2010, as to the cause of her continued problems and what caused her to remain off work, I refer to the opinion of Dr Katz.

[200] This opinion is contained in the following documents produced by Dr Katz exhibited to his affidavit sworn on 15 November 2012:-

[83]

[201] I have also taken into account his evidence given orally at the hearing before me, and also the transcript of his evidence given orally before the QIRC hearing. I have not been asked by either side to consider any other evidence from Dr Katz.

[202] Dr Katz had been seeing Ms McCauley every week since the incident in March, and in his report of 13 September 2010 he said that over that time her symptoms of anxiety and depression had progressed moderately although there had been some workplace aggravations. She thought there had been a lack of appropriate management response to the sexual harassment itself which, in turn had resulted in aggravating her then resolving symptoms of anxiety and depressed mood. She was becoming more detached from the sexual abuse and was able to talk about the sexual harassment without becoming distressed so that she was more in control of her day to day functioning and was emotionally more stable. Although symptoms were still present from the sexual harassment, they would become stable and stationary within one month.

[203] A month later in his report of 28 October 2010, Dr Katz reported that the expected improvement had not occurred, there had only been minor changes, and her symptoms had been aggravated by submitting a second claim for WorkCover, and that Ms McCauley remained "significantly psychologically disturbed" by the sexual harassment.

[204] At the hearing when asked what had caused her ongoing unfitness for work (referring to July 2010 and after) Dr Katz expressed the view that whilst Ms McCauley was able to return to work in May 2010 she was seeking redress for her problems. He said that if there had been no further problems at work and she had perceived that she was getting redress for the sexual harassment complaint, she had felt supported and not in a hostile environment, then in all probability she would have made an earlier recovery - it would have been a matter of months.

[205] In his last report dated 5 November 2010 Dr Katz stated:-

[105]

[214] Whilst it is true that Dr Katz has formed his view upon Ms McCauley's continued problems from information provided by her, I think it is very unlikely that Dr Katz could have been misled by his patient to the extent required to reach the wrong conclusion. I say this not only because of Dr Katz's experience in dealing with such matters, and the fact that because he was seeing her every week for the counselling sessions and so was uniquely able to express this opinion, but also because of Ms McCauley herself, who was very straightforward at the hearing. In particular I did not get the impression that she was trying to persuade me that the sexual harassment was responsible for these ongoing problems. Her approach was more that she was uncertain whether this was the case. This is not the approach one would expect from somebody trying to mislead in order to maximise their compensation.

[215] There is no other psychiatric opinion and it would be very difficult for me to say that Dr Katz is wrong in his opinion. His earlier more optimistic view given in the report of 13 September 2010 can be explained by the fact that it is quite often the case that a treating psychiatrist will express an optimistic view that a particular condition will improve by a certain date. Dr Katz has explained that the expected improvement did not happen as quickly as he expected. From the evidence of both Ms McCauley and her friend Ms Burnup and from Dr Katz's reports it seems to me that it was not until January 2011 when Ms McCauley began to make progress with her attempts to change her career that her psychiatric condition improved dramatically. By the time of the hearing she was able quite robustly to deal with the issues in her claim.

[216] It is the case therefore that in 2010 the effect of the sexual harassment had never gone away. The harassment itself and the way in which it had been handled had sensitised Ms McCauley so that she was prone to greater distress than a more robust employee would have been to those things which happened at work from 3 June 2010 to 14 July 2010. These things would be the events that are relied on as acts of victimisation (the investigation and its outcome, the meetings on 3 June and the events in mid-July) but also those things which are not relied on (the change of rosters and having to work in the banquet area when there was no fitting uniform).

[217] It appears from the QIRC decision also that the things complained of by Ms McCauley over this time (listed in paragraph [10] of the decision, except for the discipline on 14 July 2010) were all "reasonable management action taken in a reasonable way". As such they should not have upset Ms McCauley in the way they did, and would not have upset a reasonably robust employee who was not particularly sensitive for one reason or another to such events. She was particularly sensitive to these things because of the sexual harassment and its aftermath.

[218] I accept Dr Katz opinion about the cause of Ms McCauley's continued problems that sexual harassment materially contributed to them. And it cannot be said that Ms McCauley would have suffered these or any similar problems if the sexual harassment had not occurred. Nor can any other stressors capable of breaking the chain of causation be identified.

[219] In the circumstances I find that these continued problems in 2010 and into the first part of 2011 were a direct and natural result of the sexual harassment.

[220] However, in my judgment, when Ms McCauley implemented her decision to change her career, this did break the chain of causation. In reaching this conclusion I have examined her reasons for making this decision carefully. She explained that there were two reasons why she made this decision. Firstly, she had been in the hospitality industry all her working life but had always wanted to do better than she was doing. She had a deep desire to do community work, but never before had the discipline to commit to the full time study which was required.

[221] Secondly, after what had happened she would never go back to the hospitality industry. She did not expressly refer to the sexual harassment suffered at the hands of Mr Barrington when talking about this. Instead she spoke strongly of the male culture in the hospitality industry which in her view, would never change. She could no longer ignore it or suffer it.

[222] It is notable that in the meeting with Mr Callaghan on 1 June 2010 she said a similar thing about the culture in the industry. She told Mr Callaghan that in her view sexual harassment was endemic at the Resort because people felt very uncomfortable talking about it and they don't feel there is enough support - the males and the male chefs in particular needed more education about it. She then told Mr Callaghan of other incidents of sexual harassment which she had suffered from another employee continuously every Sunday for the previous 6 to 8 months (which therefore predated the incidents with Mr Barrington) and she also hinted that she had suffered similar problems for years.

[223] By 13 September 2010 she had already decided that she would never be able to return to work at the Resort and that she would have to look at some alternative form of work. At that time she was only thinking of some form of retraining.

[224] What brought her decision to a head was the intervention of Q-COMP, who in their efforts to get her back to work, helped Ms McCauley to enrol for a Certificate 3 course in community services. This was a precursor to her current studies for a diploma.

[225] Although the evidence is very vague about the date when these things happened, it must have been in early 2011 and on the balance of probabilities I find that Ms McCauley had started to implement her plan to change her career by the end of January 2011.

[226] I can see from what Ms McCauley told me in the hearing and from what she told Mr Callaghan in that meeting that even if the sexual harassment from Mr Barrington had not occurred it is likely that her desire to get out of the hospitality industry and to train for community work would eventually have prevailed.

[227] So the clear impression I am left with is that even without the Barrington incident, she would have moved on in her life by changing her career. It is difficult to say when this would have happened. Probably she would have made the same decision at about the same time. I believe she would have enrolled for the Certificate 3 course at about the same time as she did do, to start that course about April 2011. I believe bearing in mind that she was short of money she would have worked until the last possible moment with the First Respondent, and therefore I believe she would have ceased to work for the First Respondent at the beginning of April 2011. Accordingly I find that she is entitled to loss of earnings to the beginning of April 2011 and from that date her decision to change her career was the cause of her continued financial loss, and the sexual harassment was no longer the cause.

[228] There was evidence that Ms McCauley was involved in a motor accident on 19 January 2011 in which her father was fairly badly injured. On my findings, and in the light of Dr Katz opinion about this, this was not an intervening cause breaking the chain of causation. It is only a coincidence that this was about the same time and the career change decision.

[229] It is submitted on the First Respondent's behalf that there is no evidence before the tribunal that Ms McCauley was looking for other work. This might be a suggestion that she was fit for work earlier than the beginning of April 2011 (which is the date to which I think her loss of earnings should be calculated) and therefore she should have done so. One difficulty with this suggestion is that Ms McCauley's decision not to return to working for the Resort was clearly a reasonable one bearing in mind the problems she had when she had previously tried to do this in May and June 2010. Having made that decision, which was certainly made by mid September 2010, she had to decide whether to try to retrain or to look for other work. At the time she was still suffering from anxiety and depression which would have made decision making difficult. Also Dr Katz was of the opinion in his report of 13 September 2010 that she would have persisting sensitivities about returning to a similar work environment[35] which would naturally restrict her choice of work. In November 2010 Dr Katz reported that Ms McCauley had difficulty mentally focussing on the administrative demands of Centrelink and that she was in a "state of limbo" with regard to the conduct of her life which was contributing to maintaining her level of mental disturbances and that she required ongoing treatment. I believe this makes it clear that Ms McCauley was not fit for work at that time.

[230] This is also demonstrated by the fact that she was on receipt of Sickness Allowance at that time. This continued up to the time she started her course in April 2011. It is said on the Respondents' behalf that Dr Katz did not see Ms McCauley after late 2010 but I do not think this is right. He told me that after the weekly visits ended he continued to see her every two months to monitor her mental state and to review her medication. Ms McCauley has claimed for the cost of at least two consultations after WorkCover ceased to pay her medical expenses directly. She also told me in evidence and I accept, that her medication gradually reduced until it stopped entirely in about the middle of 2012.

[231] On the available information, it is my finding that Ms McCauley was unfit for work up to the beginning of April 2011. It was therefore reasonable for her not to seek any alternative work over this period.

[107]

[232] My findings are as follows:-

(a) Ms McCauley suffered sexual harassment and discrimination over the three days of 4, 5 and 6 March 2010.

(b) The sexual harassment and discrimination materially contributed to, and therefore caused, a personal injury being an adjustment disorder with mixed anxiety and depressed mood - the other main contributory factor being the unreasonable way in which the First Respondent dealt with her complaint of sexual harassment.

(c) The personal injury continued until at least January 2011 and possibly after this time.

(d) The sexual harassment and discrimination materially contributed to, and therefore caused, Ms McCauley to be off work from 12 March 2010 to 3 June 2010 and from 15 July 2010 onwards.

(e) Having decided in early 2011 to change her career, in April 2011 she started as a student and therefore no longer made herself available for work at the resort or for any work. Therefore her loss of earnings was no longer caused by the sexual harassment and the discrimination.

[233] I have also found that Ms McCauley was not victimised by reason of any of the events relied on.

[234] In his final submissions on the Respondents' behalf, Mr Dwyer relied on the findings of the QIRC as precluding a finding of victimisation under the principles of res judicata or issue estoppel. Alternatively, that the claim for victimisation was an abuse of process and ought to be dismissed on the principle of Henderson v Henderson (1843) 3 Hare 100.[36]

[235] Mr Taylor responded by arguing that none of these principles apply because the parties before the Commission were not the same (the First Respondent had only leave to be heard and was not a party), that the tests applied by the Commission were different, that the findings relied on by the Respondents were not properly identified and in any case QCAT should exercise its discretion not to adopt the Commission's findings.

[236] In the light of my finding that the victimisation case is not proved, there is no need for me to consider these arguments. However, I have made other findings as set out above I need to consider whether these are inconsistent with the Commission's decision and if so whether it is open to me to make those findings. In considering this I have the advantage of counsel's full argument on the principles to apply (albeit argued in the context of the victimisation claim).

[237] WorkCover had accepted Ms McCauley's earlier application for compensation lodged in March 2010. This had been based on the sexual harassment itself. WorkCover accepted that this had caused her a psychological injury (adjustment disorder with mixed anxiety and depressed mood). At the time, Ms McCauley received payments of compensation for her lost earnings by being off work and medical expenses. Later she received a lump sum for permanent impairment.

[238] Then after going sick on the second occasion as from 15 July 2010 following her return to work on 3 June 2010, Ms McCauley made a second WorkCover application. If she had been successful she would have been entitled to compensation for her lost earnings from July 2010 onwards and continuing medical expenses. WorkCover rejected this claim and this decision was supported on review by the Q-COMP Review Unit. The decision was that although she had suffered a psychiatric or psychological injury at work which amounted to a personal injury, it arose from reasonable management action taken in a reasonable way after her return to work on 3 June 2010. Therefore it was outside the definition of "injury" in section 32(1) of the Workers' Compensation and Rehabilitation Act 2003.

[239] The Commission was dealing with an appeal by Ms McCauley against this decision. The appeal hearing was de novo, and evidence was heard over two days. Evidence was given by Ms McCauley and Dr Katz, and by Ms Briggs, Mr Callaghan and Ms Haynes.

[240] The parties to the Commission's hearing were Ms McCauley as appellant, Q-COMP as the First Respondent, and Club Resort Holdings Pty Ltd as the Second Respondent. Club Resort Holdings had been given leave to appear - it called witnesses, was able to cross examine and make submissions. It was therefore a party to the proceedings for the purpose of issue estoppel and res judicata. I disagree with Mr Taylor's submissions to the contrary.

[241] By section 32(3)(b) an "injury" includes an "aggravation of a personal injury". Mr Taylor who appeared in the Commission hearing on Ms McCauley's behalf, argued[37] that since her first claim for WorkCover compensation she was entitled to bring a new claim for compensation because she had suffered a new injury within section 32, namely such an aggravation of the personal injury (being an adjustment disorder with mixed anxiety and depressed mood) and that there were two main causes:

(a) having gone back to work when she was not ready; and

(b) a number of events at work after the lodgement of her original claim for compensation of March 2010.

[242] At the end of the hearing, Mr Taylor altered the case to question whether Ms McCauley's condition might not be a new injury within the definition of that word in section 32 (that is an aggravation of the adjustment disorder with mixed anxiety and depressed mood), but rather a continuance of the original injury[38]. In his final submissions to the QIRC[39] the suggestion was that the claim for WorkCover compensation should have been regarded as a claim for continued compensation for losses arising from the original injury (the original injury having been caused by the sexual harassment and the immediate lack of management response).

[243] This new point meant that the Commission was being asked by Mr Taylor to find that there had been either:-

(a) an aggravation of the adjustment disorder with mixed anxiety and depressed mood [that is a new injury within section 32(3)(b)] caused by returning to work too early and certain management actions after the return to work; and

(b) a continuance of the adjustment disorder with mixed anxiety and depressed mood caused by the sexual harassment and the immediate lack of management response.

[244] For my purposes, it is notable that either (a) or (b) above might satisfy the test of causation when considering the result of the sexual harassment. This means that the choice which had to be made by the QIRC between these two possibilities does not assist or hinder my task when considering causation for this sexual harassment claim.

[245] As it turned out, the QIRC rejected (b) whilst at the same time finding that Ms McCauley was continuing to suffer some symptoms of anxiety and depression traceable back to the events of early March 2010 during the time she was back at work between 23 May and 14 July 2010.[40] As for (a), the finding was that Ms McCauley did suffer an aggravation of the adjustment disorder with mixed anxiety and depressed mood [that is a new injury within section 39(3)(b)], that this was caused by events in her employment between 23 May and 14 July 2010, that they were the result of reasonable management action taken in a reasonable way. Because of that, and since the new injury was a psychiatric or psychological disorder, this was outside the definition of "injury" in section 32.

[246] None of those findings conflict with my findings above.

[247] The test I have had to apply is effectively to look at the questions from the other way round - what loss and damage was caused by the sexual harassment and in considering this, whether the later events broke the chain of causation. This is quite a different process and applies quite different tests from that carried out by the QIRC.

[114]

[260] As for financial loss I have decided that Ms McCauley is entitled to compensation for her loss of earnings until the beginning of April 2011. The evidence about such loss is not as good as it could be, however I do have sufficient information to make the appropriate calculation and I disagree with submissions made on behalf of the Respondents that the information required is not in the evidence. Permission was given in the hearing to Ms McCauley to give supplementary evidence about her losses. Ms McCauley's average weekly earnings are agreed. And the parties have given submissions about the correct level of the award for financial loss.

[261] Since damages for loss of earnings in discrimination cases are taxable in the hands of the recipient[42] all the calculations use gross figures. It is agreed between the two sides that the correct weekly gross pay that Ms McCauley did earn with the First Respondent and would have earned if she had been at work was $586.

[262] As for the period between 12 March 2010 and 30 May 2010 when Ms McCauley was off work as a result of the sexual harassment she did lose earnings. However, her claim for WorkCover benefits was successful and she received payments to compensate for the loss of those earnings. Mr Taylor has presented a calculation showing that the WorkCover payments were $353.24 short. However I am entitled to assume that the WorkCover payments were accurate and that they fully covered the loss suffered by Ms McCauley during this period off work. At the time, Ms McCauley was a casual employee and was therefore not entitled to sick pay so that does not affect the figures.

[263] On 4 July 2010 Ms McCauley became a part-time permanent employee so in theory she would then have come into the sick pay scheme. There is no evidence that she received any sick pay at all when she ceased work as from 15 July 2010, so I have assumed that she did not do so for one reason or another.

[264] I have decided that in the period from 15 July 2010 to the beginning of April 2011 if the sexual harassment had not occurred Ms McCauley would probably have been working for the First Respondent. This is 37 weeks. On the agreed figure of $586 per week the gross loss comes to $21,682.

[265] Immediately after going off work in July 2010 Ms McCauley received sickness allowance of $580 per fortnight, which continued until she started to receive Austudy allowance in the same amount when she started her course. As far as the Austudy allowance is concerned, this would have started roughly at the end of the period of loss with which I am concerned so it can safely be ignored. As for the sickness allowance, in his final submissions Mr Dwyer seemed to argue that the award should be reduced by the amount received by Ms McCauley over this period.[43] If this was his submission then I do not think it is right because the compensation recovery provisions of Part 3.14 of the Social Security Act 1991 (Cth) mean that these payments may be recovered by Centrelink in so far as the loss of earnings claim covers the same period.

[266] In Mr Taylor's schedule there is a deduction of $100 in respect of earnings. However I do not deduct this amount because Ms McCauley told me that she earned this when she helped out a friend in a beach kiosk at about the time of the hearing before the QIRC. This was at the end of November 2011 and is outside the period of loss with which I am concerned.

[267] In the circumstances I award Ms McCauley the sum of $21,682 loss of earnings based on figures before tax, for her loss of earnings from 15 July 2010 to the beginning of April 2011.

[268] To this must be added 9% of this amount to account for her loss of superannuation contributions over the same period. This comes to $1,951.38. Adding this amount to the $21,682 for loss of earnings makes a total of $23,633.38.

[269] I accept Ms McCauley's evidence that she incurred a total of $150 in psychiatric fees not paid directly by WorkCover, and also $50 on medical prescriptions. I award $200 under this head. This brings the total award for financial loss to $23,833.38.

[270] Interest is claimed at 5% p.a. on these losses. I regard it as appropriate to award interest at this rate on the loss of wages and superannuation of $23,633 from mid-way in the period over which this loss was incurred (22 November 2010) to the date of delivery of this decision being a period of about 129 weeks. This comes to $2,931.

[115]

[271] Ms McCauley received WorkCover payments in respect of her loss of earnings and also her medical costs for her claim which was accepted. And on 17 January 2011 she was paid a lump sum of $13,274.25 by WorkCover in respect of the "permanent impairment" arising from her personal injury (that is to say the adjustment disorder with mixed anxiety and depressed mood) caused at work by the sexual harassment.

[272] She makes no claim for the wages and medical costs paid by or reimbursed to her by WorkCover. This is clearly the right approach since her employer is insured under the WorkCover scheme in respect of these payments and if she sued for these amounts and recovered them, she would be entitled to keep this money[44] and would therefore be over compensated.

[273] On her behalf, it is however submitted by Mr Taylor that her award should not be reduced by the $13,274.25 which was paid for her permanent impairment. The argument is that the lump sum was paid for a work related impairment (described in section 39 of the Workers Compensation and Rehabilitation Act 2003) "and not for disability or in this case hurt and humiliation which is what damages are designed to compensate for". For the Respondents, in his final submissions Mr Dwyer says that the payment should be taken into account when deciding the correct award for non-financial loss. However, he does not explain why.

[274] Although Mr Taylor seeks to distinguish between compensation for work related impairment under the 2003 Act and damages under the anti-discrimination legislation, to my mind this is the same thing in a case where compensation for non-financial loss under s209(1) of the Anti-Discrimination Act 1991 is awarded for sexual harassment or discrimination which happens at work.

[275] And again if Ms McCauley recovered damages in respect of this non-financial loss she would be able to keep the $13,274.25 for the same reason as in the case of the other WorkCover payments, and so she would be compensated twice for the same loss.

[276] It follows that the $13,274.25 lump sum should be deducted from that part of the award which compensates her for her non-financial loss arising from the sexual harassment and discrimination.

[116]

[277] The question arises whether it would be unfair to order Mr Barrington to pay the whole of the award bearing in mind that it was the inadequate and inept reaction of the First Respondent which caused the sexual harassment which he had perpetrated to have a particularly serious adverse effect on Ms McCauley. And if it would be unfair, whether he can be ordered to pay a lesser amount than the First Respondent.

[278] Quite how far the effect on Ms McCauley was worsened by reason of the First Respondent's reaction can be understood by analysing what would have happened if it had acted properly.

[279] A proper reaction to the sexual harassment to be expected of a reasonable employer of the size and resources available to the First Respondent, would firstly have been for the general manager to reassure Ms McCauley at an early stage that her complaint would be investigated properly with an explanation how that would happen and the timescale involved. At that point she would have explained that she mistrusted Ms Briggs to carry out the investigation because having witnessed some of the events she had seemed to turn a blind eye to them. In response to that, the First Respondent would have appointed another person to carry out the investigation. A proper investigation would have ensured that Mr Barrington and all other relevant witnesses would have been asked to comment on Ms McCauley's allegations by prompting after first having sought their volunteered information. Had that been done, it is inevitable that sufficient evidence would have appeared to corroborate Ms McCauley's complaints and they would have been upheld. Mr Barrington would have been disciplined by the First Respondent and Ms McCauley would have felt fully supported by her employer and vindicated in her decision to complain.

[280] If that had happened then in my view Ms McCauley's injury would have been limited to the initial shock arising from the harassment, the upset and distress of the type demonstrated by her to her work colleagues on day four, and a continued sense of resentment against Mr Barrington. I think it is unlikely that she would have suffered the recognised personal injury that she did.

[281] In that scenario in a claim under the Act Mr Barrington would have had to pay a much more limited award in this claim. Probably this would be assessed at no more than $4,500, bearing in mind the nature of the sexual harassment and the fact that it did not continue beyond the three days.

[282] The reality was quite different. The First Respondent's reaction was inept and unprofessional, and because of this Ms McCauley's award in total comes to $35,490 after allowing for the offset arising from the lump sum WorkCover payment. Whilst it is appropriate for Ms McCauley to receive this amount in compensation, I do not regard it as appropriate to order Mr Barrington to pay this full amount, bearing in mind the substantial responsibility for this amount of compensation lies with his employers.

[283] Is there power to relieve Mr Barrington from facing judgment for the higher award, and at the same time to order the First Respondent to pay the higher award, bearing in mind that its liability is vicarious only?

[284] In considering this, I return to the words of section 209(1)(b) of the Act which require me to order a respondent to make a compensation payment to Ms McCauley which I consider appropriate. I preface my analysis by saying that I regard it appropriate for Mr Barrington to compensate Ms McCauley in the sum of $4,500 as compensation for loss and damage caused by the contravention for the reasons given above. And that I find it appropriate for the First Respondent to compensate Ms McCauley for the larger sum of $35,490 as compensation for loss and damage caused by the contravention since this is the loss and damage suffered by her.

[285] In considering whether such awards can be made, it is noted that the First Respondent is only liable to compensate Ms McCauley because of section 133(1) of the Act. It provides that:-

[125]

[289] In Mt Isa there were a series of incidents of sexual harassment which the tribunal at first instance[45] decided could not be separated "because of the continuing and cumulative nature of the damages suffered" and for that reason the compensation could not be apportioned between them. Moynahan J seems to have accepted that this was the correct approach, and therefore on that basis the sexual harassment should be treated as one contravention of the Act. Had they been separable they could have been treated as separate contraventions of the Act and the award could have been apportioned to compensate for the loss and damage caused by each contravention.

[290] The reference to section 7 of the Law Reform Act 1995 in the passage from Mt Isa above is to the court's power in contribution proceedings in a tort claim to order a just and equitable contribution between the parties having regard to the extent of that person's responsibility for the damage. However it has been said when considering similar legislation that a claim under anti-discrimination legislation is probably not a "claim in tort" for this purpose.[46] Hence it would appear that the Law Reform Act 1995 cannot apply to such claims. As can be seen from the passage this was also the view of Moynahan J[47].

[291] There are however, two types of apportionment. The first type is for the award to be split between the respondents, so that together they amount to the complainant's loss. With this type of apportionment the complainant would need successfully to enforce the judgment against both of them to recover the loss and damage in full.

[292] The second type of apportionment is the type that I am proposing in this case, where the First Respondent is ordered to pay the whole of the complainant's loss, and the Second Respondent is ordered to pay only part of that loss. In this second type, if the complainant successfully recovers the award from the First Respondent she would not also be able to recover an additional amount from the Second Respondent.

[293] It seems to me from the passage above in Mt Isa, that the type of apportionment that Moynahan J was ruling out under the Anti-Discrimination Act was the first type of apportionment because he referred to apportionment of damages in accordance with the various parties' degree of fault and referred to the Law Reform Act 1995 which is capable of adjusting the ultimate position of the parties.

[294] Had it been intended by the legislature that under the Anti-Discrimination Act the joint and several liability must in every case result in equal awards, the words in section 133(1) could have been "jointly and severally civilly liable for the loss and damage arising from the contravention". And it is to be noted that the words used in section 133(1) contrast in this respect with those used in sections 6 and 7 of the Law Reform Act 1995 itself. These concentrate on liability for damage suffered by a person as a result of a tort.

[295] There is nothing in the Act which requires that the order made against a respondent liable for a particular contravention should be the same as an order made against a respondent liable for the same contravention. In fact, section 209 is worded to suggest otherwise, so that for example it might be right to require a public apology from one or more respondents but not others, or to make a recommendation which might affect only one of the respondents.

[296] It might be argued however, that the very use of the words "joint and several" in section 133(1) connotes the requirement that the ultimate responsibility between them is equal, and this is therefore inconsistent with a tribunal's power to make the awards different. But case law suggests that whilst equal ultimate responsibility is the traditional approach where there is joint and/or several liability, there are cases where it has been departed from.[48]

[297] I believe the ability of a tribunal to make different awards against respondents in respect of the same contravention of the Act also ties in properly with my analysis above that the test of remoteness of damage does not apply to anti-discrimination claims under the Act because of the important discretion given to tribunals by the word "appropriate" in section 209(1)(b).

[298] As mentioned earlier, it would not be possible to reduce the award made against the vicariously liable employer because of the purpose set out in section 132. But in an exceptional case such as this one I take the view that it is possible to reduce the award to be paid by the perpetrator.

[299] The calculation of the order is therefore as follows:-

McCauley v Club Resort Holdings Pty Ltd

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (154 paragraphs)

McCauley v Club Resort Holdings Pty Ltd (No 2) [2013] QCAT 243 (13 May 2013)

Parties

Legislation Cited (2)

Cases Cited (12)