Mount Isa Mines Limited, Joe Kirvensniemi, Darryl Jameson, Chris Ahern, Percy Elliot v Narelle Marie Hopper [1998] QSC 287

3 Relevantly for present purposes the Act prohibits discrimination on the basis of the attribute of sex (s.7(1)(a)) or by limiting a worker's opportunities or access to benefits such as promotion or transfer, denying access to programs or by treating a worker unfavourably in connection with work; s.15(1).

4 Section 8 of the Act provides that discrimination on the basis of an attribute includes direct and indirect discrimination on the basis of:-

"(a) a characteristic that a person with any of the attributes generally has; or

(b) a characteristic that is often imputed to a person with any of the attributes; or

(c) an attribute that a person is presumed to have, or to have had at any time, by the person discriminating; or

(d) an attribute that a person had, even if the person did not have it at the time of the discrimination."

Sections 10 and 11 deal with what constitutes direct and indirect discrimination in terms which it is unnecessary to repeat.

5 The Act also prohibits sexual harassment. Section 119 provides:-

(a) subjects another person to an unsolicited act of physical intimacy; or

(b) makes an unsolicited demand or request (whether directly or by implication) for sexual favours from the other person; or

(c) makes a remark with sexual connotations relating to the other person; or

(d) engages in any other unwelcome conduct of a sexual nature in relation to the other person;

and the person engaging in the conduct described in paragraphs (a), (b), (c) or (d) does so:-

(e) with the intention of offending, humiliating or intimidating the other person; or

(f) in circumstances where a reasonable person would have anticipated the possibility that the other person would be offended, humiliated or intimidated by the conduct."

6 The Act provides for enforcement in the event of contravention of its prohibitions in that a complaint of an alleged contravention may be made to the Anti-Discrimination Commissioner; s.134. A complaint, which may allege more than one contravention, must be in writing. It must also set out "reasonably sufficient details to indicate a contravention has occurred" and it must be lodged with the Commissioner; ss. 135, 136. A person is entitled to make a complaint within one year of an alleged contravention but the Commissioner has a discretion to accept a complaint after a year if the complainant "shows good cause"; s.138.

7 Where the Commissioner has received, accepted and investigated a complaint but is unable to resolve it by conciliation, the complainant may require that it be referred to the Anti-Discrimination Tribunal, see ss.139 to 143, 155(1)(c), 156(1), 160(2), 164 to 167 of the Act. The Tribunal's powers include to hear and determine complaints that the Act has been contravened and to take any action incidental or conducive to the discharge of its functions; s.248.

8 The complaint here was referred to the Tribunal. It is difficult to avoid the conclusion that the Tribunal's jurisdiction, which is statutory rather than inherent, is founded on referral of a complaint complying with the terms of s.136; see ss.175, 248(a) and (f) and cases such as Parisienne Basket Shoes Pty Ltd & Ors v. Whyte[3] and Craig v. The State of South Australia[4]. This also founds consistency in what is investigated, is the subject of conciliation and is referred to the Tribunal and provides for procedural fairness to all parties. By s.175(1) of the Act:-

"The Tribunal must accept a complaint that is referred to it by the Commissioner, unless the complaint was made to the Commissioner more than 1 year after the alleged contravention of the Act.

(2) If the complaint was made more than 1 year after the alleged contravention, the Tribunal may deal with the complaint if the Tribunal considers that, on the balance of fairness between the parties, it would be reasonable to do so."

The Tribunal has power to join parties, allow amendments of a complaint and to deal with two or more complaints jointly if they arise out of substantially the same events; ss.177, 178, 179. It has power to give directions, which was exercised in this case, including for the exchange of pleadings and for the provision of affidavits of evidence. By s.208(1) of the Act the Tribunal:-

(a) may inform itself on any matter as it considers appropriate; and

(b) must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms;"

9 The events giving rise to this appeal have their origin in Mt Isa Mines Limited's (the first appellant) employment of Narelle Marie Hopper (the respondent) as an apprentice diesel fitter mechanic from 29 January 1992 to 16 April 1994. The other appellants were employed by the first appellant during the relevant period. The second appellant was employed in a supervisory capacity, while the third, fourth and fifth appellants were co-apprentices with the respondent.

10 On 17 August 1994 the Legal Aid Office (Queensland), acting on behalf of the respondent, "enclosed by way of complaint" a statement by the respondent. The letter went on to say the respondent "complains of a number of incidents which constitute unlawful discrimination and sexual harassment". It nominated the five appellants as "The particular persons complained of". The statement referred to them and to other identified or identifiable individuals. It was a complaint "in writing" with "reasonably sufficient detail" made to the Anti-Discrimination Commissioner of a number of contraventions of the Act[5]. The Commissioner accepted the complaint. I have not been directed to any indication that the Commissioner exercised the discretion conferred by s.138(2).

11 Put shortly, the complaint was not of systematic contravention for which the first appellant was directly liable together with complaints of contraventions by its employees for which it was vicariously liable. Indeed there was no complaint of direct contravention by the first appellant. In this context it should be noted that "person" in the Act includes reference to a corporation; Acts Interpretation Act 1954, ss.34D, 36. While it might be unusual for a corporation to be guilty of harassment it is not inconceivable. The position with respect to discrimination is of course clearer.

12 That the complaint was of a number of incidents of discrimination or harassment by its workers for which the first appellant was vicariously liable was reinforced by the points of claim delivered by direction, which essentially repeated what was in the complaint. The points of claim made no allegations of direct contraventions by the first appellant but rather alleged it was:-

"vicariously liable pursuant to s.133 of the Anti-Discrimination Act for each of the acts of sexual discrimination and harassment set out in these points of claim".[6]

13 The complaint against the second appellant was of discrimination as a consequence of a number of incidents which occurred while the respondent was under his supervision. The complaint against the third, fourth and fifth defendants was in respect of a specific incident - the TAFE incident. These considerations are reflected in that although the appellants were represented throughout by the same solicitors and counsel, the first, the second, and the third, fourth and fifth defendants delivered separate defences[7].

14 The complaint having been investigated and conciliation having failed, by a letter of 17 July 1995, the complaint made on 17 August 1994 was referred to the Tribunal pursuant to s.166 of the Act. The Tribunal gave the directions referred to earlier and heard the matter in Mt Isa over a number of days commencing 5 August 1996. The outcome was adverse to the appellants; as reflected in its published reasons the Tribunal essentially accepted the evidence for the respondent and rejected many aspects of evidence called for the appellants.

15 These may be summarised essentially as follows:-

1. The Tribunal made and acted on findings of contraventions not the subject of the points of claim or (more importantly) the complaint and in respect of which there was no complaint within a year and misapplied s.175 (which deals with complaints made more than a year after contravention).

2. The Tribunal misapplied s.133, subs.(2) in particular. The section deals with vicarious liability and subs.(2) with the defence of reasonable steps to prevent contravention.

3. The Tribunal failed to give reasons or adequate reasons for its decision and its findings did not found conclusions of discrimination or harassment in a number of instances.

There was a complaint about the Tribunal's failure to apportion the award among the defendants.

16 In what follows the headings are taken from the Tribunal's reasons for its decision and the numbered paragraphs from the points of claim. The latter essentially reflect the complaint and provide a convenient basis for consideration of the appeal issues by reference to the Tribunal's published reasons.

"4. From September 1992 until February 1993 the (respondent) was working in a part of the first (appellant's) operations at Mount Isa known as the ´Mobile Equipment Workshop'.

5. At that time and place the (appellant) was subjected to conduct which was sexual harassment within the meaning of s.119 of the Anti-Discrimination Act 1991 (´the Act').

The first (appellant's) employee Christian Manning said of the (respondent) in the presence of other employees:-

´Narelle's hole is the size of (indicating a size by holding his hands apart). I wouldn't touch Narelle she's probably got a sexually transmitted disease.'

Numerous employees of the first (appellant) in the presence of the (respondent) conjectured about her sexual activity."

18 It was not in issue that the respondent and Manning (he was not named as a "particular person complained against" and was not a party to the proceedings before the Tribunal or this Court) had had a consensual "sexual encounter" while away for a weekend with other apprentices. There was evidence to the effect that this became known, Manning was teased (for want of a better word) about it in the workshop and responded by denigrating the respondent. It was open to the Tribunal to find the incident particularised occurred and that it constituted sexual harassment and it has not been demonstrated that it erred in doing so.

19 Under this heading however, the Tribunal went on to find that other incidents involving offensive words written in various parts of the workplace and the display of pictures and posters of "half dressed women" were sexual harassment in contravention of s.119(c) and (d) of the Act. These findings were open on the evidence which was admissible as a consequence of the first appellant's plea of s.133(2)[8] if not on the general basis of relevance and it has not been demonstrated that the Tribunal erred in making them.

20 The difficulty is that the matters were not pleaded as contraventions in the form of a complaint in terms of s.136. It seems the evidence was however, canvassed by the affidavits lodged in compliance with the Tribunal's directions order. Counsel for the appellants did not submit that the Tribunal could not take this evidence into account either as of general relevance or as going to the issues raised by s.133(2), but submitted it could not found findings of contraventions. It is convenient to postpone consideration of this for the present.

21 The reasons then make a curious[9] finding about the respondent's truck which in February 1993 she had painted blue and which had the words "Little Lady" and "Born to Tease" written on it at about the time she left the mobile workshop area the subject of the complaint involving Manning. The Tribunal found that "while the words written on her truck may have been open to misinterpretation, they did not explain or excuse the level of sexual harassment to which she was subjected". The reasons then turned to matters under the heading "L17".

The relevant paragraphs of the points of claim are:-

"6. From February 1993 until August 1993 the (respondent) was working in a part of the first (appellant's) underground operations at Mount Isa known as 17 Level X 41 to work as part of a crew of diesel fitters.

7. The second (appellant) was the (respondent's) supervisor at 17 Level X 41.

8. At that time and place the (respondent) was subjected to conduct which was sexual discrimination within the meaning of sections 7 and 15 of the Act.

Joe Kirvesniemi had not wanted the (respondent) to work with his crew informing the (respondent) in words to the effect:-

´I'll tell you now that we didn't want you here, but someone had to take you so we are stuck with you...I don't believe in females working as diesel fitters.'"

". . . no doubt that (the respondent) suffered discrimination on the basis of her sex from Mr Kirvesniemi and other employees at level 17. This was because no effective education program had been put in place to change entrenched attitudes on the part of employees or to otherwise prepare the workplace for female employees."

It is desirable that where there is a finding of discrimination there be explicit findings of what constituted the discrimination in terms of the sections referred to in the points of claim. Again, it is convenient to postpone consideration of the complaint of deficiency of reasons in this and other respects. The findings of no effective education program reflected the first appellant's plea of s.133(2) of the Act.

22 There was ample evidence on which the Tribunal could, as it appears to have done, conclude that the second appellant was hostile to the respondent because she was a female and that that was reflected in the way in which he treated her and that his hostility influenced the way in which she was treated by others under his supervision.

23 The evidence was that jobs were allocated by a leading hand under the second appellant's supervision who was answerable to him. There was evidence (again the Tribunal appears to have accepted it) that the respondent was given "very menial tasks" and that the second appellant would not let her get her Toyota ticket or go out of the workshop on jobs with other members of the crew and that the respondent was treated unfavourably by comparison with a male apprentice who also worked in the area in these and other respects. There was evidence that the second appellant told the senior training officer that the respondent was "not suited to underground work". There was evidence to the effect that the second appellant said that the respondent "needed close supervision to do her work" and since there was no time to do that she was given mundane work. The Tribunal apparently rejected his evidence in this and other respects. It seems that after the intervention of a training officer the respondent was given the normal range of work.

24 The Tribunal found that the respondent faced prejudice from her co-workers before they even met her and spoke of a diesel fitter giving evidence that he did not think most women would be able to do the work of a diesel fitter because of their strength, a view shared by other members of the crew. The reasons also made reference to another member of the crew being of the opinion that the respondent was physically weak but he could not support his evidence by an example. He told the respondent a number of times, probably when he was angry, that she was not suited to the trade.

25 Once again the Tribunal seems to have accepted this evidence and it was open to it to have done so. Again it would have been better if it had been explicit in making its findings rather than leaving them to be implied from a recital of the evidence and a general conclusion. The findings other than in respect of the second appellant are not reflected in the complaint although the evidence founding them was in the affidavits of evidence and the findings were open on the evidence. Once again it is convenient to postpone consideration of the implications of these matters.

The points of claim deal with matters under this heading in these terms:-

"9. In January 1994 the (respondent) was working in a part of the first (appellant's) operations known as R62 "Lead Equipment Maintenance.

10. At that time and place the complainant was subjected to conduct which was sexual discrimination within the meaning of sections 7 and 15 of the Act.

The complainant was not recommended for re-employment in R62 ´Lead Equipment Maintenance' solely because of her sex, her apprentice performance rating card dated 27/1/94 being endorsed by the first respondent's employee Tony Blackburn with the comments ´unfortunately square pegs don't fit round holes and a petite girl is way out of her depth in the underground diesel environment. Narelle is very pleasant to have around but a waste as far as being a useful tradesperson'."

26 The Tribunal found that on 26 July 1993 the respondent was transferred to shaft r.62 in the lead mine at Mt Isa as part of her normal rotation. She coped with the work and her supervisor gave her a generally favourable report. In January 1994 however there was a new supervisor who when he gave her her report told her that "women should not be diesel fitters" and showed her the report saying "but nobody listens to us here". The report was unfavourable including the statement particularised above.

27 The Tribunal found that if the particular supervisor had had training in anti-discrimination he did not "remember what it was about" and that it had in any event antedated the Act. The respondent was greatly upset by the report which was a considerable setback for her. She told another apprentice about the report and that apprentice suggested that she should appeal but the respondent "felt she couldn't".

". . . could be left in no doubt . . (the respondent) received less favourable treatment and a substantial reason for that was her sex".

29 It was submitted for the appellants that the Act prescribes discriminatory treatment in specific terms and situations. Reference was made to recital 7, ss.2(a)(iii), 6(1),10(1), 11(1), 12(1), 13(1) and 15(1)(b) and (f). It was then submitted that words spoken or written were not of themselves acts of discrimination. It would no doubt have been desirable for the Tribunal to have been explicit as to what constituted discrimination in this and other allegations of contravention. Nevertheless the report was presumably for the purpose of the evaluation of the respondent's performance of her apprenticeship and relevant to matters such as the respondent's deployment in the first appellant's enterprise. Thus understood it can properly be regarded as constituting unfavourable treatment in connection with work; see s.15(1)(f). The considerations being those adverted to it was open to the Tribunal to make the finding of contravention it did.

30 In respect of this heading the points of claim state:-

"11. In March 1994 the (respondent) was subjected to conduct by the third, fourth and fifth (appellants) which was sexual harassment within the meaning of s.119 of the Act.

Those three (appellants) approached the (respondent) and engaged in a suggestive conversation with her as to the hourly rate she would charge for sexual services."

31 There was ample evidence to justify the Tribunal's conclusions with respect to this episode. While she was attending TAFE with other apprentices as part of her apprenticeship, the respondent was approached by the third, fourth and fifth appellants in the context of their having seen her doing promotions work wearing a bathing suit and sarong at a local hotel. The Tribunal found that the fifth appellant was the ring leader and found that the third and fourth participated in a conversation inferring that the respondent worked at the hotel as a prostitute. This took place in front of other members of the class until an instructor intervened to put an end to it. The Tribunal concluded that the behaviour was immature rather than malicious and that the third and fourth appellants were unimpressive witnesses. It found the three appellants had been given no guidance on how to behave and concluded the comments were sexual harassment in terms of s.119(c) and (e). This conclusion would seem to have been inevitable given the evidence and the Tribunal's evaluation of it. It was not necessary, in order to sustain such a finding, for the Tribunal to find which participant spoke which particular words or that the three "acted in concert" although it may in any event be inferred they did.

Other Incidents of Harassment and Discrimination

"12. On numerous occasions during the course of the (respondent's) employment she was approached by male employees of the first (appellant) and subjected to requests, suggestions or innuendoes that she should join the ´one mile club', which was a reference to engaging in sexual intercourse one mile underground.

13. Such conduct was sexual harassment within the meaning of section 119 of the Anti-Discrimination Act 1991."

"In addition to the incidents referred to, Ms Hopper said the general atmosphere of MIM and the general attitude of other employees meant that she was subject almost daily to unwelcome comments and/or treatment because of her gender. In cross-examination, she explained that the atmosphere was one where she felt that "any male working at MIM could say whatever he pleased to me or about me". These matters contributed significantly to the stress which she suffered in her employment. These included comments by men at R62 that it was hard to work with her after seeing her in a bathing suit and sarong and serving beer and that they didn't know how to interact with her. Some of the drill rig operators would come into her area and say things like "Bloody hell it's a female". Two or three times a week, some of the muckers and other employees not in the crew would come in and say "Where's the little blond one?" or "Where's the cute one today?" On a couple of occasions, some of the muckers passed comments like "You looked really hot at Boydies the other night". She said she was offended by these comments but did not let it show.

At R62, the (sic) number of workers from outside the crew would come and ask her out and on at least three separate occasions she was asked by one man when she was going to join the One Mile Club with him (the One Mile Club is a mythical club at Mt Isa whose members consist of people who have had sex with each other one mile below the ground). He used to say to her "How about it? How about we join in today...your supervisor won't miss you for a little while".

On the walls and lockers underground there were frequent displays of pictures of nude females. When she came into the work area there was no attempt to put them away. These pictures were prominent in the eating area. These pictures disturbed her but once again she faced a dilemma as to what to do. She said, "It did bother me but I accepted it because it was the environment that I worked in. I didn't want to cause trouble with anybody". She told Don Johnson that she was not offended "because I didn't want any trouble to be brought up because of the fact that I may have been offended, which I was". These pictures include "girls draped over cars; girls draped over beds, bits of clothing missing, all clothing missing; girls' legs spread apart". She said she didn't know how to complain without causing "huge unrest" where she was working.

Jay Wessels, who was an apprentice training instructor with MIM at the relevant time, who has since left their employ remembers that "it was quite `common knowledge' that there were numerous comments of a sexual nature made about Narelle Hopper by the men at Mt Isa Mines".

There were no separate gender toilets underground in X41 or R62 and the toilets were not very private, so that she was forced to go in the dark. She left her miner's light on outside to let people know she was in there. There were no doors to the toilets, merely a low, often open, wall in front of them separating them from the main tunnel. There were two toilets side by side in this manner and anyone could use the other one if they so desired. These toilets were not segregated.

The matters referred to in these incidents represent sexual harassment and sex discrimination."

Some of these findings are a repeat of matters (eg. with respect to toilets) under earlier headings. 34 The complaint forwarded under cover of a letter of 17 August 1994 included this:-

"The incidents that I have referred to in this statement are the major incidents which I was particularly concerned about. There were also a number of other incidents through out my time at the mines. In particular, I would receive frequent approaches by male workers to ´join the one mile club'. This is a mythical club at Mt Isa who's members consist of people who have had sex with each other one mile below the ground. A lot of the comments at the time were treated by me as being just normal male female behaviour. Looking back I believe that they contributed to the stress which made me sick and eventually made me leave my job."

35 It may be accepted that insofar as the passage from the Tribunal's reasons set out above constitute findings of fact they were open on the evidence which was on the affidavits and was admissible and which was capable of sustaining a finding of sexual harassment. There was no specific findings of what constituted discrimination although the position with respect to toilets was capable of constituting this. The findings were not all the subject of the complaint the relevant part of which is set out above. Once again it is convenient to deal with the implications of this later.

Section 133 of the Act

36 Once the second, third, fourth and fifth appellants were found to have contravened the Act, the effect of s.133 was to make the first appellant liable unless the defence provided by s.133(2) was made out. That section provides that it is a defence to proceedings for contravention for which an employer was vicariously liable for the employer to prove, on the balance of probabilities, that it took "reasonable steps to prevent the worker . . contravening the Act". The submissions for the first appellant emphasised the relationship the section postulated between the steps taken and the particular contravention found against a worker. The first appellant pleaded that it had taken:-

"All reasonable steps to prevent (. . contravention . .) by reason of the existence of:-

(a) clear documentation and/or policy on sexual discrimination and sexual harassment;

(b) appropriate implementation and communication of the said policy/documentation per (the first appellant) employee;

(c) appropriate training of staff on sex discrimination and sexual discrimination in the workplace;

(d) appropriate procedure to investigate complaints of sexual harassment."

37 The Tribunal embarked on consideration of the issues raised by this aspect of the matter by looking at the evidence of the steps which the first appellant undertook to prevent contraventions by its workforce as a whole, which it recounts in its reasons in some detail. I do not propose reiterating that detail here. It may, however be remarked that there were briefing sessions including an overview of the Act and discussion of the responsibility of supervisory personnel to eliminate and effectively deal with discrimination and sexual harassment in the workplace attended by 600-700 key staff and award employees out of the 4,000 odd employees at the mine. Printed material headed "What is now required of supervisors?" was distributed. The Tribunal found that although this referred to taking steps to identify breaches of the Act within the area of the supervisor's responsibility, there was no specific mention of any need for education of employees with respect to anti-discrimination and sexual harassment. Nor, it found, was there any follow-up put in place to ensure that supervisors had passed on to employees information about their rights and responsibilities under the Act. Part of the briefing involved instructions to remove posters of semi-clad people and insulting or graphic graffiti, but responsibility was left to the management in the particular area and there was no follow-up to see if this was carried out. In a memo dated 13 April 1993 (the respondent was employed at Mt Isa by the first appellant from 29 January 1992 to 16 April 1994) the personnel services manager reported considerable effort had been put into "minimising the risk of claims of discrimination" and that "we were generally complying with the current legislation". One area of concern was identified, relating to the taking and keeping of records of interviews of complaints[10]. An employees' handbook distributed some time in November 1993[11] dealt with the issue until it was replaced by a more detailed publication in May 1994. As a result of the number of complaints to the Anti-Discrimination Commission in early 1995, the personnel services manager was required to undertake a review of the first appellant's practices with respect to discrimination and sexual harassment which resulted in the development of further information circulated to all employees. Some of these events occurred after the respondent's departure but they suggest earlier efforts had not been effective.

38 The Tribunal, having canvassed the evidence, found the first appellant:-

"failed to ensure that its polices were communicated effectively to employees on the ground, particularly to those employees where, as MIM well knew, there would be problems in changing their attitudes, and their attitudes would have to change if they were going to be able to work with female apprentices rather than only with male apprentices as had been the case in the past. While the employer is not an insurer of its employees' behaviour, there was much more that could and should have been done."

39 Its reasons recited, and apparently accepted submissions by the respondent's counsel as to a number of steps the first appellant "should have taken and did not". These included failure to ensure the message about anti-discrimination was known in areas where there were likely to be problems (the evidence and the Tribunal's finding indicate that underground areas were in this category). It found there was no attempt to monitor the effectiveness of the training of the targeted supervisors to see if the message "had got across". Crews were not prepared for the induction of women into a previously all male workplace, facilities were not provided for women and offensive posters were not taken down[12]. The Tribunal concluded that there was no monitoring of the "attrition rate" of female apprentices which it concluded "gave occasion for concern".

40 The respondent gave evidence that she had not seen any information posters underground and that neither she nor her co-workers went to any training workshops on the question of discrimination and sexual harassment. There was evidence that there was no proactive dissemination of anti-discrimination information in the apprentice, training and trades areas and that offensive photographs were frequently on display. An apprentice who started on the same day as the respondent gave evidence that he did not receive any training or information about discrimination, that he saw none of the posters said to have been put up about it during his employment, no one ever told him of his rights or obligations in respect of discrimination and harassment, that he had been subjected to what the Tribunal justifiably characterised as the "particularly obnoxious practice known as "greasing" and that he had made no complaint as he did not know who to complain to.

41 It seems that before the Tribunal the first appellant made much of the fact that the respondent did not complain about discrimination and harassment during her employment. The Tribunal justifiably concluded however, that the respondent was not informed about complaint processes, was deterred by the general atmosphere and concerned about adverse consequences ("she didn't think it would do anything more than cause more trouble") if she did. The Tribunal's findings in respect of the issues raised by the first appellant's plea of s.133(2) were open to it on the evidence and it has not been demonstrated it erred in making them.

42 It is true that the Tribunal did not specifically relate its consideration and findings to whether the first appellant took "reasonable steps to prevent the worker (second, third, fourth and fifth appellants) contravening the Act". When those findings are coupled with its findings of harassment and discrimination and the evidence generally it was, however, justified in concluding the first appellant failed to prove it had taken the reasonable steps contemplated by s.133(2) in respect of the second, third, fourth and fifth appellants.

43 Put another way, their contraventions were the consequence of a general failure reflected by the evidence, some of which has been referred to. The Tribunal did not err in concluding the first appellant failed to make out a defence under s.133(2).

"At the time of the harassment (the respondent) was a young girl of nineteen years. She had a good if varied work history and was a happy and outgoing person looking forward to a bright future. She says that the time she spent (working for the first appellant) was the most stressful of her life. It ruined a time of life when she should have been able to work hard and to enjoy the fruits of the work with good health and an active and relaxed social life. Instead she became tense, withdrawn, depressed and developed a skin condition which persists to this day. The effect of the harassment was such that even the mere thought of returning to Mt Isa for a short period of time is enough to cause her skin rash to flare up. Additionally she found herself unable to face work in the field in which she always wanted to be involved. As a result she has had to traumatically alter her career aspirations."

It concluded that the TAFE incident was the "straw that broke the camel's back" and went on to make other findings of the adverse effect of the events on the respondent. These findings were open on the evidence and no error has been demonstrated in respect of them or of the assessment of damages. Indeed, I did not understand the Tribunal's conclusions in respect of these matters to be the subject of complaint.

45 Section 138 of the Act provides that a person is only entitled to make a complaint within one year of the alleged contravention of the Act but that the Commissioner has a discretion to accept the complaint after a year has expired if the complainant shows good cause. As I have already said, there is no indication of that discretion having been exercised in this case in respect of a complaint made more than a year after the contraventions. Section 175 provides that the Tribunal must accept a complaint referred by the Commissioner unless the complaint was made to the Commissioner more than one year after the alleged contravention of the Act but that the Tribunal may deal with the complaint made more than one year after the alleged contravention if it considers:-

". . . that, on the balance of fairness between the parties it would be reasonable to do so."

46 Under the heading "Jurisdiction" in its reasons the Tribunal refers to the appellants being given leave to amend their points of defence to plead that complaints of particular contraventions were outside the Tribunal's jurisdiction because no complaint had been lodged with the Anti-Discrimination Commissioner within one year of the events founding the complaint. The Tribunal stated, in my view correctly, that s.138 did not limit the powers of the Tribunal to deal with complaints made more than one year after the alleged contravention. It referred to s.175 and said:-

"In determining whether or not it is fair to the parties that this complaint should be heard, I take note of the fact that the events in question happened over a period of two years and during that time, Miss Hopper was still in the same workplace and hopeful that the discrimination and sexual harassment would end. In the circumstances it is reasonable that she made no complaint until she left the employment of Mt Isa Mines, and since MIM was able to call Christian Manning, who was the apparent perpetrator of the first contravention of the Act, it has not been put to any great disadvantage.

As a very large company it has comprehensive records going back many years and so was not in a situation where any important documents had been lost or mislaid, nor is there any evidence that it was unable to contact any relevant witnesses. Since there was no evidence of actual prejudice to any of the respondents by the delay, on balance I find that it is reasonable to deal with all of the complaints made by Ms Hopper. Furthermore I agree with this submission made on behalf of the complainant that the sex discrimination and sexual harassment were continuing in nature, and it is not a correct approach to look at each individual group separately."

47 The discretion conferred by s.175(2) is widely expressed in terms not directly comparable with the specific requirements in s.31(2) of the Limitations of Actions Act 1974 which was considered by the High Court in Brisbane South Regional Health Authority v. Taylor[13] a case on which the appellants relied. The conditions founding the discretion conferred by s.31 of the Limitations of Actions Act are more constraining than those here. The general considerations canvassed by McHugh J. in Taylor with respect to the effect of delay are relevant but have to be applied in context both of the scheme of the legislation and of the evidence.

48 A submission that the discrimination and harassment was continuing in nature and that incidents should be looked at on that basis is acceptable in the context of the discretion conferred by s.175(2), although for reasons already adverted, it is not in respect of a finding of contraventions not the subject of a complaint in terms of s.136. In the context of s.175(2) it is really saying no more than that it is part of a series of events with many common features which took place during the respondent's employment by the first appellant. It should be noted that the majority of contraventions referred to the Commissioner and the Tribunal were complained of in time.

49 The reference in the reasons to Manning having been called, and the first appellant having retained comprehensive records says no more than that the first appellant had not been deprived of any opportunity which it might have been afforded had the complaint been made in time; this in circumstances where the appellants did not seek an adjournment or demonstrate specific prejudice on account of a complaint being out of time.

50 There is a complaint that the Tribunal took no account of presumed prejudice from loss of evidence, for example, by fading memories, particularly in the context of the shifting onus imposed by s.133(2). By the time the matter came to be disposed of however, the evidence had been heard. In the circumstances the submission was more apposite to the evaluation of the evidence.

51 The considerations being those I have adverted to, it was open to the Tribunal to conclude on the balance of fairness between the parties that it was reasonable to hear a complaint which was out of time and it has not been demonstrated it erred in doing so.

Findings of Contraventions not the Subject of the Compliant or Points of Claim

52 As I have already indicated, in my view, the effect of s.136 (a complaint must be in writing, set out reasonably sufficient details to indicate an alleged contravention and be lodged with the Commissioner), s.166 (a complainant is entitled to require the Commissioner to refer a complaint to the Tribunal) and s.175 (the Tribunal must accept a complaint referred to it by the Commissioner), is that the Tribunal's jurisdiction is conditioned on there being a complaint in terms of s.136, subject of course to the Tribunal's power to allow a complainant to amend a complaint; s.178. See also s.240 which refers to the Tribunal's functions in terms of "to hear and determine complaints".

53 It will be appreciated from what I have said previously that there were findings of contraventions which were not the subject of the complaint or for that matter, of the points of claim. At the commencement of the hearing, counsel for the appellants raised a number of objections in respect of the material in the affidavits of evidence. One of these was that the case that the appellants were obliged to meet should be that pleaded by the respondent and not one that "grows as we go along because if she does not claim discrimination other than in her pleading, then we have come and prepared on that footing". Some of the material objected to was properly admissible as providing a context in which the specific incidents complained of took their place and other of it in respect of the defence pursuant to s.133(2). Complaints about particularity were properly disposed of on the basis that particularity requirements were satisfied by the affidavits of evidence; some material was excluded.

54 The reasons for the Tribunal's decision have, under the heading "Procedural Matters" a sub-heading "Objections to Evidence". The reasons recite counsel for the appellants' objection to certain material in the affidavits filed by the complaint and then recite s.208 of the Act. This provides, inter alia, that the Tribunal is not bound by the rules of evidence. Rather than strike out the parts objected to, the Tribunal said it "accorded them . . weight appropriate to their reliability".

55 Shortly thereafter the reasons recite that counsel for the respondents did make some complaint about the material in the affidavits being wider than in the points of claim but stated that there was no other evidence that the respondents wished to lead in response to the material contained in the affidavits apart from what had been led. It was submitted to the effect that this does not quite do justice to counsel's position in the sense that the fact that the matters were not raised by the points of claim, meant that they had not been investigated as they might otherwise have been. Apart from that general consideration however, it has not been demonstrated that the appellants were in fact deprived of an opportunity to controvert any of the issues raised by the material objected to, much of which, in any event, may be accepted as having been relevant generally or as a consequence of the issues raised by s.133(2). No adjournment was sought and no actual prejudice has been demonstrated. Put shortly, it has not been demonstrated that the Tribunal erred in receiving and acting on evidence of harassment or discrimination not pleaded in the points of claim.

56 I have not been directed to anywhere in the proceedings before the Tribunal where the issues of incidents of contravention raised by the evidence not being the subject of the complaint as distinct from of the points of claim were raised. The position is different in respect of that because, as I have earlier said, the Tribunal's jurisdiction is in my view founded on a complaint complying with s.136(b). Findings of contraventions not satisfying that requirement therefore cannot stand because there is no jurisdiction to make them. This is not to say that findings of facts properly made on evidence admissible on the basis of general relevance or under s.133(2) cannot stand although they constitute contraventions not the subject of complaint.

"Because of the continuing and cumulative nature of the damages suffered, it is not possible to apportion the damages among the various (appellants)."

At first blush it seems extraordinary that the third, fourth and fifth appellants, whose harassment was constituted by a single incident, should be treated as equally responsible with the second appellant who was in a supervisory position and whose relations with the respondent continued over a period of time. The more so with respect to the first appellant which is vicariously responsible for both the harassment and discrimination by the other appellants which it was open to the Tribunal to find.

58 The Act however makes no provision for apportionment. Apportionment of damages in accordance with the various parties' degree of fault, is a creature of statute. It was first introduced into English maritime law in 1911 in lieu of a rule of equal division and more generally in Queensland by the Law Reform Act 1995. See the discussion in Fleming The Law of Torts (9th ed) p.306. Absent an applicable statutory provision there does not seem to have been any power to apportion.

59 Reasons may be requested of the Tribunal under s.211 of the Act. In this case, in any event it gave them. As has been indicated from time to time, the reasons could desirably have been more explicit. After careful consideration I am not persuaded that the deficiencies in the reasons in this case vitiate the Tribunal's decision.

60 The Tribunal essentially found that the contraventions, the subject of the complaint forwarded under cover of the letter of 17 August 1994, had been made out and that the first appellant had failed to make out its s.133(2) defence. It made other findings of fact adverse to the appellants which were justified on the evidence. The outcome was founded on the resolution of issues of credibility. It is clear enough from a careful reading of the reasons what evidence the Tribunal accepted and what it rejected. The resolution of such issues is essentially a matter of judgment rather than of the application of principal.

61 The adequacy of the Tribunal's reasons are to be considered in the context of its functions; Cypressvale Pty Ltd v. Retail Shop Lease Tribunal[14]. The Tribunal's proceedings are obviously less formal and in a sense less rigorous than those of a court. Thus s.208(1) provides that it may inform itself as it considers appropriate, must act according to equity and good conscience in the substantial merits of the case without regard to technicality, facilitate the prompt hearing of matters and that it may draw conclusions or adopt findings from the decisions of others. While the Tribunal has some judicial attributes, it is not intended to mimic a court of law or to decide issues in the same way as a court of law.

62 The crucial requirement is for the Tribunal to give reasons which disclose what has been taken into account and in a manner so that any error can be exposed; Soulemezis v. Dudley (Holdings) Pty Ltd[15]; Sun Alliance Insurance Ltd v. Massoud[16]; Cypressvale[17]. The test is one of sufficiency in context and form; Cypressvale[18]. In Housing Commission NSW v. Tatmar Pastoral Co Pty Ltd[19] Hutley JA with whom Samuels JA agreed said:-

"The extent to which a court must go in giving reasons is incapable of precise definition. A court must not nullify rights of appeal by giving no or nominal reasons, but there is no duty to expound reasons so as to facilitate appeals. This applies particularly to the situation where a judge has to decide between conflicting witnesses, including experts. The choice between conflicting experts may have to be a matter of judgment, not of detailed reasoning."

In my view the Tribunal's reasons satisfy those requirements and effectively disposed of the issues traversed before it.

63 The position may be summarised as follows. The Tribunal made findings under the various headings canvassed in these reasons of harassment (Mobile Equipment Workshop and TAFE) and of discrimination (Level 17 and R62) which were the subject of the complaint forwarded under cover of the letter of 17 August 1994. It found that the first appellant had failed to make out the defence it pleaded in reliance on s.133(2) of the Act. It made findings of fact based on evidence properly admissible of other incidents of poor or adverse treatment of the respondent in the workplace. It has not been demonstrated that the Tribunal erred in its conclusions or findings so far referred to. The Tribunal went on to find contraventions based on justifiable conclusions of fact but not the subject of complaints in compliance with s.136(b) of the Act, in circumstances where it had not been demonstrated that the appellants had been deprived of an opportunity to controvert the facts on which the finding of contravention were based or that the Tribunal erred in making them. It made justifiable findings of the effect of the way in which the respondent was treated on her heath, well being and employment. The findings are such that the award made by the Tribunal is, in my view, sustainable even though the Tribunal found contraventions not the subject of a complaint in terms of s.136.

64 The considerations being those to which I have adverted, in my view, the appropriate outcome is to affirm, pursuant to s.218(a) of the Act, the Tribunal's decision that the appellants pay the respondent$48,724.10 compensation with costs on the District Court Scale for matters under $50,000.00.

[1] [1987] HCA 25; (1987) 163 CLR 54 per Brennan J. at 77

[2] [1990] HCA 33; (1990) 170 CLR 321

[3] [1938] HCA 7; (1938) 59 CLR 369

[4] [1995] HCA 58; (1995) 184 CLR 163

[5] It is clear from the letter, the statement and ss.136, 207 that the statement and not the other documentation which accompanied the Commissioner's subsequent referral to the Tribunal was the complaint under the Act.

[6] These considerations create difficulties for the respondent's submissions in support of the decision to the effect that this was "a case of a systematic environment fostering . . . discrimination and harassment." Such a case may have been open but is not what the complaint and the points of claim raise. It should also be noted that vicarious liability is when the law holds one party liable for the misconduct of another even if that party is free of fault, see Fleming Law of Torts 9th ed, ch.19 where there is an interesting discussion of the origin and development of the doctrine.

[7] It might be thought by some unduly tendentious that the defences were not content with denying factual allegations but put the respondent "to strict proof" and demanded "full particulars".

[8] That it took reasonable steps to prevent the other appellants from convening the Act.

[9] The finding is curious because its significance is not clear.

[10] It might fairly be said that the concern seems to have been with technical compliance rather than substance of the concerns addressed by the Act.

[11] The first draft was prepared in 1991 and there was apparently no satisfactory explanation for the delay.

[12] There was evidence to the effect that this particular requirement was seriously enforced only after the respondent left the first appellant's employ.

[13] [1996] HCA 25; (1996) 186 CLR 541

[14] [1995] QCA 187; (1996) 2 Qd.R 462

[15] (1987) 10 NSWLR 247 per McHugh JA. at 279

[16] [1989] VicRp 2; (1989) VR 8 at 19

[18] at 482 per McPherson and Davies JJA.

[19] (1983) 3 NSWLR 378 at 381