McGuire v Reyes t/as The Entrance Lakehouse

NCAT Administrative and Equal Opportunity|2016-11-10

Solicitors: Legal Aid (Applicant) Laurie Spooner (Second Respondent in Person) File Number(s): 1610171

The Application

Ms Lynn McGuire was employed as a kitchen hand by Maria (aka Maila) Reyes trading as the Entrance Lake House, (the First Respondent) which was a restaurant in Gosford. Mr Laurie Spooner (the Second Respondent) was employed as an Operations Manager at the Lake House restaurant.
On 13 August 2015 Ms McGuire made a complaint to the Anti-Discrimination Board (the ADB) claiming she was sexually harassed in her employment by Mr Spooner. She alleged it began on 11 March 2015 when he hugged her around the neck. On two occasions he put his hands around her bottom while on step ladder, the last time was on 26 June 2015. She also claimed she was victimised by Maria Reyes. She alleged her employment was terminated because she complained of sexual harassment by Mr Spooner.
The complaint was investigated by President of the ADB and unable to be resolved. The President of the ADB referred the complaint to the Administrative and Equal Opportunity Division of the New South Wales Civil and Administrative Tribunal (NCAT) under s93C of the Anti-discrimination Act 1977 (the Act).
Ms McGuire alleges Mr Spooner made unwelcome sexual advances from 11 March 2015 until 26 June 2015 which were not reported. The conduct included coming up very close to her face while working, hugging her around the neck and putting his hands around her bottom and touching her genital area while standing on a step-ladder. She also specifically alleges on 26 June 2015, Mr Spooner came up behind her and placed his hands on her buttocks while she was standing on a step-ladder. She reported this incident that same night.

The Procedure

Ms Reyes has been declared bankrupt. At the commencement of the hearing of this matter Ms McGuire sought to withdraw the victimisation complaints against Ms Maria Reyes. She proceeded with the sexual harassment complaint against Mr Spooner.
The matter was heard over one day. In addition to documentary material filed in the proceedings, Ms McGuire and Mr Spooner both gave oral evidence.
We considered all of the relevant evidence before us, before making a decision, but have not reproduced all the evidence in these reasons for decision.

The Applicant's Evidence

Ms McGuire started work for Ms Reyes as a kitchen hand at the Entrance Lake House restaurant on 9 January 2015. She initially met with the then head chef Gary Burns on site. She had a period of paid trial commencing on the evening of 9 January 2015. Mr Brent Davies replaced Mr Burns as Head Chef shortly after. A letter from Maila Reyes dated 16 August 2015 confirms Ms McGuire was employed by her as a kitchen hand at the Entrance Lake House from 9 January 2015 to 9 August 2015. Also provided were Payroll documents and a PAYG Statement evidencing her employment.
Maila Reyes wrote to the ADB on 20 September 2015 in response to Ms McGuire's complaint. She wrote Ms McGuire was employed on a casual basis as a kitchen hand. It was a subsidised employment placement, specifically for people with disabilities. The work place was assessed prior to Ms McGuire's commencement, to ensure she could fulfil her work duties. She wrote Ms McGuire was supported and monitored on-site. As part of that arrangement, Ms McGuire was provided with help from her fellow employees and the use of a step-ladder.
Ms McGuire's evidence is that she is four foot seven inches in height. Because of this, there was discussion about the need for a step-ladder so she could reach the upper shelves in the kitchen. She said it was agreed she would bring a step-ladder from her home.
Ms McGuire claims from around 11 March to 25 June 2015, Mr Spooner made unwelcome sexual advances to her at work. In her statement, she states she did not report the sexual harassment to her employer, for fear of losing her job. She specifically claims there was an incident or about the 11 March 2015 when Mr Spooner hugged her around the neck. She asked him, "What was that for?" and he responded "You looked like you needed a hug?" She also claims there were other incidents, where he came up close to her face. She alleges there was another incident, similar to incident on the step-ladder on 26 June 2015, when he again placed his hands around her buttocks to her genital area. She did not report that incident. The date was alleged to have been between 11 March 2015 and 26 June 2015.
Ms McGuire claims on 26 June 2015 she was standing on a two step-ladder putting paper towels on a shelf. She alleges Mr Spooner came up behind her and touched her with two hands on her buttocks. She claimed due to the layout of the kitchen, the incident was not seen by other people in the kitchen. When it happened, she yelled out very loudly, "For Christ's sake, Laurie!", because she was, "just fed up and upset". She wanted to make sure everybody heard. She said she felt hurt and humiliated and felt like crying.
About an hour later after she calmed down, she raised the issue with the Chef Supervisor, Brent Davis. He then spoke to them both. She told Mr Davis it was not the first time such incidents had happened. Mr Spooner then apologised and said it did not mean anything.
A photograph was provided from Mr Spooner of a "re-enactment" in which Mr Spooner's wife was standing on a step-ladder in front of the doorway. Ms McGuire told us the photograph was not a correct representation of the position of herself and the ladder on 26 June 2015. She said the step-ladder was not facing the same way. When she stood on the step-ladder, she would position the ladder parallel to the sink, as close as she could. She would then turn side-ways. She also said the bins shown in the photograph were not there at the time of the incident. She said she would stand on the ladder once or twice a day and it was common for people to walk through to the doorway behind her.
Ms McGuire claimed she has a mental illness which has been well managed without relapse for over 18 years. She claimed that as a consequence of the sexual harassment, she experienced a relapse in August or September of 2015. She said she had to see her treating psychiatrist more frequently and increase her medications. Ms McGuire did not provide medical evidence, or evidence from any other allied health care providers. Her evidence was that she was very stressed, scared and humiliated as a consequence of the incidents.
Ms McGuire's partner Mr Vincent Demal also gave evidence of her discussions with him about the workplace. His evidence was she was distressed and would tell him about events and burst into tears. He also gave evidence the sexual harassment and losing her job made her mental illness worse.
Ms McGuire provided a number of character references attesting her very good character including her honesty and integrity.

The Respondent's Evidence

Mr Spooner gave oral evidence. He was employed as the Operations Manager at the Lake House restaurant. He was in a more senior position to Ms McGuire. He said he considered Ms McGuire to be "high maintenance" in the kitchen. He described her as "short" and "largish" and said in order to reach the shelves, she would stand on a ladder. He said in his opinion a ladder in the kitchen was a danger because of slippery floors. He conceded there were only two steps on the "ladder".
He conceded he placed his hands on Ms McGuire while she was standing on the step-ladder on 26 June 2015. He said he was hurrying out the door to the cool-room and his passage was blocked by Ms McGuire. He claimed he touched Ms McGuire on the hips and waist as a safety precaution. He asked her if she was alright as he did so.
Mr Spooner conceded Ms McGuire had shouted at him when he touched her. He said he apologised and kept going out the door. In his oral evidence he said there was very little room to get past and he wanted to make sure she was aware he was behind her.
Mr Spooner said he always treated Ms McGuire professionally. He did concede he "may" have touched Ms McGuire prior to the incident on 26 June 2015. He said he may have hugged her on the neck. He said there were only two occasions when he touched her. He conceded Ms McGuire did not ask him to hug her and he acted of his own accord. He could not recall precisely how he hugged Ms McGuire. He said one arm around the shoulder is how he normally hugs people. He said he would hug 50% of the restaurant guests. He denied he had touched her on the buttocks and around the genital area on another occasion.
Mr Spooner said Ms McGuire reported the incident of 26 June 2015 to the head Chef Brent Davis and the incident was dealt with that day. Mr Spooner said he apologised and tried to clear up any misunderstanding.
Mr Spooner conceded he would consider grabbing Ms McGuire's buttocks to be sexual in nature and inappropriate, but denied he did so. Mr Spooner also said he was aware Ms McGuire had a mental illness.
Mr Spooner's wife also worked at the restaurant as a waitress. He provided a photograph of his wife standing on a two step-ladder, partially blocking the door-way where the incident occurred. He said he took a photograph of his wife in a re-enactment, in order to show there was a safety issue passing through the door-way when Ms McGuire was on the ladder. The photograph shows the doorway is significantly blocked by the person on the step-ladder.
Mr Spooner also relied upon a letter from Brent Davies, but Mr Davies did not participate in the hearing. Mr Davies wrote the incident of 26 June 2015 was not sexual in nature and was done purely as a safety precaution. He noted Ms McGuire reported the incident to him that night and he spoke to both Mr Spooner and Ms McGuire. He wrote no other incidents were reported.
Mr Spooner also relied upon letters from Ms Reyes. Ms Reyes did not participate in the hearing. She denied there were any incidents on 11 March 2015, or any other incidents except for 26 June 2015. She wrote that the incident of 26 June 2015 was reported by Ms McGuire and immediately addressed by Brent Davies the Head Chef. It was resolved amicably and without further complaint from Ms McGuire. Ms Reyes also attests to Mr Spooner's good character both in the hospitality industry generally and also as a respected employee.
Mr Spooner said he had been in hospitality all his life and had never had any previous complaints. He had also been involved in community events without incident. Mr Spooner provided a number of other character references of the high regard in which he is held and his honesty and integrity.

The Applicant's submissions

It was submitted in the circumstances here the conduct of Mr Spooner was both unwelcome and sexual in nature. Ms McGuire was very distressed. She was in a position of vulnerability to Mr Spooner who was in a position of power, both as a Manager and also because he was aware of her mental illness. Ms McGuire was very distressed and experienced significant physical symptoms because of the incidents. Her partner Vincent Demal gave evidence of her distress. She had to see both a psychiatrist and General Practitioner to manage her symptoms.
It was submitted little weight could be placed upon the evidence of Mr Davies and Ms Reyes as they did not give evidence during the hearing. In addition there was no evidence Mr Davies saw the incident as he does not say so in his statement.
It was submitted that an award of compensation is compensatory in nature and the incident has a significant impact upon Ms McGuire. It led to a relapse of her mental illness. It was also submitted interest should be payable on any order made.

Second Respondent's submissions

In summary Mr Spooner submitted he was very remorseful and deeply embarrassed. He submitted he did not intend for either the hugging incident, or the incident on 26 June 2105 to be sexual in nature. He denied any other incident.

The Legislation and Case Law

This is a civil claim and the applicant bears the burden of proof. The standard of proof was discussed in the decision of Qantas Airways v Gama [2008] FCAFC 69 [at 55] by Branson J. She stated, "The correct approach to the standard of proof in civil proceedings in a federal court is that for which s140 of the Evidence Act provides. It is an approach which recognises … that the strength of evidence necessary to establish a fact in issue on the balance of probabilities will vary according to the nature of what is sought to be proved - and, I would add, the circumstances in which it is sought to be proved."
The relevant provisions relating to a complaint of sexual harassment in New South Wales are found in Part 2A of the Anti-discrimination Act 1977 ("the Act") which prohibits sexual harassment in certain areas. Section 22A of the Act defines sexual harassment as follows: For the purposes of this Part, a person sexually harasses another person if: (a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the other person, or (b) the person engages in other unwelcome conduct of a sexual nature in relation to the other person, in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated.
Section 22B (2) provides : (2) It is unlawful for an employee to sexually harass a fellow employee or a person who is seeking employment with the same employer.
In the decision of Linnell v Seacham Australia Pty Ltd [2011] NSWADT 61 (Linnell) the Administrative Decisions Tribunal (The ADT) reviewed previous decisions relating to sexual harassment. In the case of Coleman v Bentley [2002] NSWADT 87 (28 May 2002) the Tribunal observed that: 25"a person is sexually harassed if he or she is subjected to unsolicited and unwelcome sexual conduct by a person who stands in a position of power in relation to him or her": O'Callaghan v Loder (No2) [1983] 3 NSWLR 89 at 92. This general concept has been developed into a statutory formula to set the parameters of the behaviour or actions of one person towards another which come within the definition of sexual harassment. 26As the Federal Court has observed: Unwelcome sexual conduct may be insensitive, even offensive, but it does not necessarily constitute sexual harassment. The word "harass" implies the instillation of fear or the infliction of damage, as is indicated by the definition of the term in the Macquarie Dictionary : 1. To trouble by repeated attacks, incursions, etc. as in war or hostilities; harry; raid; 2. To disturb persistently; torment, as with troubles, cares, etc. Hall v A & A Sheiban Pty Ltd (1989) 85 ALR 503 at 531 27 "The legislative formula for proscribing sexual harassment has been described as: Only striking at conduct that is an abuse of power or influence which an employer has over the career prospects or working conditions of an employee. The section does not make unlawful, per se, sexual advances made by an employer to an employee; nor does it seek to proscribe the acceptance of such advances by the employee. In other words the sub-section is not intending to change the tide of human affairs. It is the demonstration of the preparedness to use the position of power and influence over the employee which is at the core of the conduct rendered unlawful. Spencer v Dowling (1996) EOC [92-851 at 79,325].
The test for whether sexual harassment has occurred is an objective one and is determined by whether a reasonable person would consider that the conduct in question would be likely to offend, humiliate or intimidate. Caton v Richmond Club Limited [2003] NSWADT 202, O'Callaghan v Loder & Anor (No. 2) [1983] 3 NSWLR 89

What happened

In order to determine whether Mr Spooner sexually harassed Ms McGuire as claimed, we must firstly make findings about what happened in the circumstances here.
It is alleged Mr Spooner touched Ms McGuire on the buttocks in circumstances similar to the incident on 26 June 2015, some time between 11 March and 26 June 2015. Ms McGuire did not report the incident and did not provide a date. The incident was disputed by Mr Spooner. There were no witnesses. The statement of Vincent Demal refers to an incident, but he was not present and he makes no reference to any date. In his written statement he simply states Mr Spooner grabbed Ms McGuire on the lower section of her body while she was putting pots away and she complained she could have fallen. He does not make reference to her telling him she was touched on the buttocks or genitals.
While Mr Demal has given evidence of what was said to him by Ms McGuire, it cannot be used as evidence of what happened as he was not present. He did not see the incident and it is not evidence of what occurred. His evidence is simply evidence of the statement made to him by Ms McGuire.
We find overall the evidence was insufficient to support a finding Mr Spooner touched Ms McGuire on the buttocks on a step-ladder some-time during the period 11 March to 26 June 2015.
Ms McGuire alleges Mr Spooner sexually harassed her on 26 June 2015, by touching her on the buttocks. What is not in dispute is that on 26 June 2015 Mr Spooner came up behind Ms McGuire and placed his hands on her body. He then went out the door after Ms McGuire shouted at him. There are however competing versions of precisely what happened. No-one else in the work-place saw the incident.
Ms McGuire's evidence was there had been a background of previous incidents which she had not reported for fear of reprisal at work. She claimed Mr Spooner came up behind her and placed his hand on her buttocks. She said she shouted loudly when the incident occurred to ensure every-one heard as she was "fed up" with his behaviours.
Mr Spooner conceded he had previously "hugged" Ms McGuire at work when she had not asked him to. He conceded he placed his hands on Ms McGuire while she was standing on the step-ladder, but claimed he put his hands on her hips and waist as a safety precaution and asked her if she was alright. He did this because he was hurrying out the door to the cool-room.
Both Ms McGuire and Mr Spooner provided references evidencing their good character. These references do not assist us in determining what happened here.
Mr Davies did not participate in the hearing and was not available for cross-examination. In addition, there was no evidence from Mr Davies he actually saw the incident the subject of this complaint. Ms McGuire's evidence was he did not. We therefore place very little weight upon his evidence, particularly his comment that there was nothing sexual about the encounter. Ms Reyes also did not witness the incident.
We find the evidence of Ms McGuire to be consistent and plausible. She was in a relatively vulnerable position in her employment. She had only been employed for a short time and was employed as a kitchen hand. Mr Spooner was an Operations Manager and her superior. Despite this, it is undisputed she shouted loudly when the incident occurred. This is consistent with her explanation she did so to ensure every-one heard as she was "fed up" with his behaviours.
Mr Spooner said he was contrite and embarrassed. He was at pains in his evidence to minimise the incident. At times his evidence was clearly self serving and inconsistent. This occurred when he initially claimed the ladder in a kitchen was dangerous and his actions were a spur of the moment act as a safety precaution. When he was asked by Ms McGuire's legal representative if it was not more dangerous to be grabbed from behind while on a ladder, he responded it has "two steps and was a hardly a ladder".
Mr Spooner's evidence was the industry practice in restaurant kitchens to call out "behind" when approaching from behind to avoid accidents. He has worked in the hospitality industry for most of his adult life. We find what he did would be more likely to startle Ms McGuire, leading to an increased risk of an accident. It is simply not a plausible explanation.
We therefore prefer Ms McGuire's version of what happened as her evidence was both consistent and plausible compared to Mr Spooner's which we find was not. We do not accept Mr Spooner's version of placing his hands on Ms McGuire's hips and waist so as to pass safely behind her when he was in a hurry.
We find Mr Spooner came up behind Ms McGuire placing his hands on her buttocks before leaving through the door when Ms McGuire shouted at him.
We also find Mr Spooner had hugged Ms McGuire around the neck on or about 11 March 2015.

Does this constitute sexual harassment?

S22A provides that sexual harassment occurs when a person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the other person, or the person engages in other unwelcome conduct of a sexual nature in relation to the other person. We must also be satisfied a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated.
The evidence of Ms McGuire was she considered the acts to be sexual in nature. Mr Spooner also conceded he would consider touching some-one on the buttocks to be sexual in nature.
We have considered Ms McGuire's evidence. Both incidents were unwelcome.
Dealing firstly with the hugging incident, we are satisfied it was unwelcome, but that is not sufficient to find it was sexual in nature. Mr Spooner's comments at the time were that she looked like she needed a hug. There was no evidence of any specific sexual comments or gestures made at the time. We are therefore unable to be satisfied that the hugging incident was sexual in nature.
The second incident is the incident on the 26 June 2105. Mr Spooner touched Ms McGuire on her buttocks. Ms McGuire shouted and reported the incident to the Head Chef. Considering her actions following the event and her evidence we find the conduct was unwelcome. This incident is considerably different to grabbing a person around the neck and hugging them. We find this act to be sexual in nature. We therefore find that the act was both unwelcome and sexual in nature. We are therefore satisfied Mr Spooner engaged in unwelcome conduct towards Ms McGuire which was sexual in nature.
We find Ms McGuire was very humiliated and distressed by his actions. Mr Spooner said he was embarrassed about the consequences of his actions. Applying an objective test we are satisfied a reasonable person, having regard to all the circumstances would have anticipated Ms McGuire would have been offended, humiliated or intimidated. We therefore find the conduct falls within the scope of s22B of the Act.

Remedy

We have considered the submissions on behalf of Ms McGuire as to the award of damages. We note also that the complaint as against Ms Reyes the employer has been withdrawn. Submissions were made on behalf of Ms McGuire about the severity of the impact of the incident. Ms McGuire's evidence is that she was very upset and distressed. This was supported by the evidence of Mr Demal who observed her distress. She claimed the incident on 26 June 2015 led to a relapse of her mental illness. She relied upon the decision of Richardson v Oracle Corporation Australia Pty Ltd and Anor [2014] FCAFC 82 in respect of the submission for damages in which the Court took account of the distress and physical symptoms. It was submitted that this case is analogous as Ms McGuire had to see her medical specialist to manage her mental illness.
We do not have any reports from an appropriately qualified specialist or general medial practitioner, psychologist or other health care practitioner addressing this issue to support such a finding. Such evidence could have been obtained from Ms McGuire's treating psychiatrist and/or General Practitioner. There was no explanation for her failure to do so. In the absence of such evidence, we are unable to find that sexual harassment led to a relapse of her mental illness. We do however accept Ms McGuire's evidence that she was very distressed by the incident. This is however not a matter where we have made findings of a persistent pattern of behaviour over an extended period of time.
We find the incident has caused significant distress and humiliation to Ms McGuire. We have had regard to a 2014 decision of ABC v DEF Restaurant and GHI [2014] NSWCATAD. In that case the Tribunal considered a claim of sexual harassment where there had been two incidents involving the touching and attempted touching of a person's breast. The Tribunal had evidence from a psychologist as to the effect of the incidents. An award of $5,000 was made against both the individual personally and against the employer which was found to be vicariously liable. As noted we have no medical evidence or evidence from any allied health care providers in the circumstances here.
Having regard to the facts of this matter and Ms McGuire's distress and humiliation, we award a sum of $6,000. We order Mr Spooner to pay the sum of $6,000 within 28 days from the date of these orders. The compensation is payable from the date of these orders and we decline to make an award for interest prior to the date of the order. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 February 2017

At a glance

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Judgment (11 paragraphs)

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