Sex Discrimination Act 1984 (Cth), ss.5(1), 14(2), 28A & 28B, 106(1)

Racial Discrimination Act 1975 (Cth), ss.9(1), (2), 15(1)(b), (c), 18A(1)

Brigginshaw v Brigginshaw [1938] HCA 34; (1938) 60 CLR 336

Shiels v James [2000] FMCA 2

Horman v Distribution Group Ltd [2002] FCA 219

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

Hughes (formerly De Jager) v Car Buyers Pty Ltd [2004] FMCA 526; (2004) EOC 93-344

Australian Iron & Steel Pty Ltd v Banovic [1989] HCA 56; (1989) 168 CLR 165

Human Rights and Equal Opportunity Commission v Mount Isa Mines Ltd (1993) 46 FCR 301

Macedonian Teachers Association of Victoria Inc v Human Rights & Equal Opportunity Commission & Anor [1998] 1650 FCA

Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349

Hall v Sheiban [1989] FCA 72; [1988-89] 85 ALR 503

Commonwealth v HREOC [2000] FCA 1150

Gilroy v Angelov [2000] FCA 1775

Commonwealth of Australia v Evans [2004] FCA 564

Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63

Rexlynne Nominees Pty Ltd v Last Frontier Picture Co Pty Ltd [1999] FCA 1380

Kelly v TPG Internet Pty Ltd (No 2) [2005] FMCA 291

(1)

The respondents to pay the applicant damages in the sum of $2,000.00 for breach of s.18C of the Racial Discrimination Act 1975 (Cth) and s.28B of the Sex Discrimination Act 1984 (Cth).

DIRLUCK PTY LTD (TRADING AS JOE'S MEAT MARKET) DEREK LAMB

The applicant brings these proceedings against the respondents, her former employer and one of its managers respectively, pursuant to s.46PO of the Human Rights & Equal Opportunity Commission Act 1986 ("HREOC Act") relying upon the provisions of ss.5(1), 14(2), 28A and 28B and s.106(1) of the Sex Discrimination Act 1984 (Cth) ("SDA") to allege discrimination on the grounds of sex and ss.9(1) and 9(2), 15(1)(b) and (c), 18A(1) of the Racial Discrimination Act 1975 (Cth) ("RDA") to allege racial discrimination in employment. At all material times the applicant was employed as a long term casual cashier or sales assistant at Joe's Meat Market ("JMM"), a retail butcher in the Bankstown Mall. Her claims that she was discriminated against on the grounds of race and sex and sexually harassed have as their bases allegations the second respondent and two other employees made derogatory racial and sexual comments to and about her during her employment, that the first respondent through its senior staff failed to address her complaints and having failed to respond adequately to those complaints by, inter alia, providing her with a transfer to another store and reducing her working hours, forced her to resign her employment, thus constructively dismissing her. The applicant claimed that she suffered isolation and hostility from colleagues, was required meekly to accept their bad behaviour and was denied access to a benefit associated with employment, namely the society and companionship of fellow workers.

The respondent denies the allegations made by the applicant claiming, in regard to the remarks allegedly made, that they were either never made or if they were made were no more than acceptable casual banter between work people and could not be found to constitute "unwelcome conduct of a sexual nature" so as to breach s.28A of the SDA or offensive conduct prohibited pursuant to s.18C of the RDA. The first respondent accepts vicarious liability for the acts of its employees including the second respondent.

The applicant was employed as a cashier at the Bankstown branch of JMM from 7 August 2002 to 9 July 2003. She worked for four days a week from 10.00a.m. to 5.00p.m. until March 2003 when she completed her studies for a nursing course. Thereafter she worked five days a week and sometimes on Saturdays. The workplace at JMM was divided between the butchers, all of whom were male, and the cashiers, all of whom were female. The head cashier was named Janelle Ross and she was the first person to whom a cashier would take any matters of concern. The female cashiers worked at the front of the shop serving customers. They were generally younger than the butchers although one of the complaints is made against a person who at the time was a 15 year old apprentice. The applicant complained that the cashiers were required to do heavy lifting and other hard physical jobs. I am not satisfied that they did this to the exclusion of the butchers nor am I satisfied that they were not given help by butchers when required. They certainly lifted trays of meat and poultry but the preponderance of evidence indicates that there were no excessive weights and that assistance was readily available either from other cashiers or from butchers. To the extent that the question of lifting raised a lightly made complaint of sexual discrimination I reject it. It was also suggested that the butchers took longer breaks than the cashiers. I am not at all sure that this is the case, but even if it was, a complaint about it would fall clearly within the concept of indirect discrimination and was not made on that basis.

The general atmosphere within the butcher's shop was permeated with the use of strong swear words, butcher's slang and jocularity. There is a dispute on the evidence as to the extent to which the applicant was part of this activity. She claimed that she tried to distance herself from conversations about sex and women. Witnesses for the respondents said that she swore as much as any other employee and on occasions made lewd references to male sexual organs utilising sausages or other meats.

The second respondent, Mr Lamb, was employed full time at the store as a manager in about September 2002 where he trained Anthony Scamell as shop manager. Sometime between September and December 2002 Scamell took over management of JMM and Mr Lamb moved away. He did return from time to time to the shop to work. Also at around that time a Glen Teasel undertook a week's work experience at JMM. He was about 15 years old at the time. In about March 2003 Mr Teasel commenced work as an apprentice butcher at JMM.

The first of the applicant's complaints concerns the conduct of Mr Lamb. She complained that he would regularly say to her "how's your love life." Mr Lamb admits doing this. He said it was a form of greeting which he used to many people. A Melissa Harding who gave evidence on behalf of the applicant said that he would ask the applicant that question every morning without fail. She said:

"It was like a ritual and you would wait for it to happen when he came in. He asked me "How's your love life"? the first time he met me but never again after that during the time I worked there. I did not observe him ask Janelle or Jacky "How's your love life?" during the time I worked there.

She said on one occasion when Violet arrived at work she heard Derek ask:

and then she heard a further comment from Mr Lamb after Ms San had not responded:

Ms San indicated that she did not tell Mr Lamb that his remarks were unwelcome, although they were. She tried to indicate this to him by giving him only very short answers or ignoring him. She claimed that on one occasion after asking her the usual question Mr Lamb said:

Mr Lamb would respond by offensive comments which included:

"Your boyfriend must be shit in bed."

"Can't he get it up?"

"He must be gay."

Eventually Ms San got to the point where she would respond positively to Mr Lamb by saying "Good" or "Yeah it was great." in order to avoid further conversation.

Ms San also complained that on one of these occasions, after Mr Lamb asked the standard question in the presence of Mr Teasel, she responded sarcastically:

"That's right, fuck off ching chong, go back home."

She noted that Mr Teasel had burst out laughing after this was said. On the same day she complains that she asked Mr Lamb to cut a piece of meat for her and after she had handed him the piece of meat and began to walk away she heard him say:

The applicant said that she had told Janelle Ross, the head cashier, about this incident but was told not to let it get to her and to ignore remarks from butchers or to say something smart back.

Ms San first denied that she ever used the word "fuck" towards her own work colleagues which others said she had. It was alleged against her that she had made racist remarks about customers which she also denied and she denied making the sexual references with the use of frankfurter sausages. Under cross examination she accepted that she may well have used swear words on more than one occasion particularly to Mr Teasel, indeed, she deposes to doing so. She also admitted calling another young butcher Chad Thomas "a fat hairy Aussie" which she said was a joke.

Another incident complained of by the applicant took place after Mr Lamb had ceased working full time but on a day when he had returned to JMM. The applicant said that Mr Lamb was with two other butchers at the back of the store and called out:

"Violet me and the boys are going for a pee pee so if you need us we will be back in a while."

Ms San said that in a sarcastic tone she responded:

But as she walked away she heard Mr Lamb say to the other butchers:

She was so upset about this remark that she confronted Mr Scamell and the other butcher who had been present and asked them if Derek had said what she claimed he had said. They both denied it. She felt that by doing this the manager was not protecting her or any of the girls from the actions of the butchers. The applicant was cross examined in some detail about her allegations. The respondents attempted to show by use of plans of the premises that the remarks could either not have been made in the place they were indicated to have been made or that they could not reasonably have been heard by the applicant and so they were untrue.

The series of complaints which I have recited above are those relating to sexual discrimination and sexual harassment. One of the remarks could be considered offensive both sexually and racially. In March 2003 after Mr Teasel joined JMM full time the applicant claimed that he instigated a number a racial comments. Before she deals with those in her affidavit she notes a conversation between herself and Mr Teasel in which she asked him how old he was and he had told her that he was eighteen. She made some enquiries and found out that he was only fifteen. The first complaint she makes about Mr Teasel was that in his presence she made a sandwich with fried egg and raw bacon for lunch and he started teasing her because of what she was eating. The conversation as deposed to by her which puts her complaint at its highest is in the following form:

"In a loud voice that everyone could hear, Cheezel said "Err, she's eating raw bacon. Who eats raw bacon? You have to cook it." Cheezel continued to make similar comments in a loud voice so that everyone could hear.

Derek then said "Oh, she's going to be farting egg farts all day."

Cheezel said: "The food that she's eating is like vomit."

In a condescending tone, Chad said: "What, is it Chinese food?"

Cheezel said: "No, it's just cold eggs and bacon."

The applicant's evidence then proceeds to describe further altercations between herself and Mr Teasel. She stated that she complained to another butcher Chad about Mr Teasel's "rude and disrespectful behaviour." She complained to Ms Ross about his "teasing and disrespectful behaviour". She said that she told Mr Ross:

"If I go back in there and he starts again, if I get in trouble for this I am warning you that I am going to scream at him and get angry with him. If you won't help me I will deal with him myself."

She deposes to getting angry with Mr Teasel and saying to him loudly:

"Are you a racist? Do you hate me? What the fuck is your problem?"

"No I don't think you're stupid Violet. I don't have anything against you, I don't know why you're angry for, we were only joking."

The applicant complained that Mr Teasel gave her orders which she resented. On 7 July 2003 the problems in their relationship reached a crescendo. Ms San had asked Mr Teasel to help her by lifting some heavy boxes out to the front of the shop because she was busy serving customers. He refused and ignored her when she repeated her request. She went out to the back of the store and there was a heated discussion between them. She said in her affidavit:

"It was obvious that Cheezel was ignoring what I was saying and I became furious because of his lack of respect. In my anger I threw an empty cardboard box at him. Janelle and Chad came running out to the back room and a conversation took place to the following effect:

"Janelle said: "Go home Violet! Get out! Everyone can hear you!"

"Chad said: "Go outside and calm down."

There was then a further conversation between Ms Ross and the applicant after which Ms Ross is alleged to have said:

"Don't come back until you decide to get along with everyone."

and the applicant claims she was locked out of the premises for about fifteen minutes. She then stated that after she had left work she was walking around Bankstown Square looking for a new job when she ran into a Mr Cameron who was a senior manager. She asked to speak with him and they walked to the car park having a conversation about what had occurred earlier that day. She complained that Mr Teasel wasn't helping her and was giving her orders. She complained that she was having lots of problems with work, she referred to the remark "fuck off Ching Chong" allegedly made by Mr Lamb. She said that Mr Cameron told her to go into the shop the next day and he would bring in Mr Scamell and they would all sit down and have a coffee and talk it out in a professional way. The next day when she started work at 10.00a.m. Mr Cameron had not appeared. At 1.00 Mr Scamell told her that she could go when she had a conversation with Mr Scamell along the following lines:

"Don't you want to hear my side of the story?"

Tony said: "No"

I said: "Well tell me the truth then, do you still want me here?"

Tony said: "I don't want you here but that's up to Cole Cameron. So come in tomorrow, we'll see what happens."

On 9 July when she arrived at work she found Mr Scamell and Mr Cameron already standing outside the shopping centre having a discussion. They asked her to come around the back dock to speak with them. They then had a conversation which is deposed to in Ms San's affidavit in which she complained about Mr Teasel giving her orders and the fact that he was only 15 and she was 21. She said words to the effect:

"I don't need a 15 year old boy to tell me how to serve a customer. I have Janelle as my supervisor, I don't answer to little boys who have just started work here."

Mr Scamell then left the discussion and Ms San asked Mr Cameron whether he could arrange a transfer for her. She says that he agreed to do that and asked her whether she wanted to work at JMM until he found her a transfer, she agreed and went back to work until 1.00p.m. when Mr Scamell told her she could go. Upon receiving those instructions she told him that she wanted him to tell Mr Cameron that she didn't wish to work at JMM anymore and she would wait for his call for a transfer. The call never came. She telephoned Mr Cameron on a number of occasions but he did not respond. Eventually she got through to him and he told her that he did not have anything for her. She never received a transfer and never returned to work.

The respondents' witnesses were divided between those who gave evidence as to the company's policy with regard to discrimination in the work force and the witnesses to the actual incidents about which the applicant complained. In regard to the evidence concerning the reasonable steps which the company says it took to prevent its employees acting in a manner contrary to the provisions of either the SDA or RDA I do not see that this evidence is relevant as the first respondent has admitted that it is vicariously liable for the actions of its employees. I therefore do not intend to rehearse that evidence.

As regard to the other witnesses Mr Cameron disputed that he told Ms San that he would arrange a transfer for her or that he offered her the option of staying until she got a transfer or leaving and awaiting a transfer. He denied receiving messages on his voice mail but agreed that he had spoken to her and told her that he didn't have anything yet. He was firm in his evidence that the only discussions he had with Mr San on 7 July were about her taking orders from Mr Teasel.

Mr Lamb admitted that he asked Ms San "How's your love life" but did not accept the suggestion that this was continual or that it was followed by other remarks. He accused Ms San of swearing and of making racist comments about customers. He told the court that he did not believe that any conversations he had with Ms San, if they were of a sexual nature, could be said to be unwanted. He claimed that he wasn't at the Bankstown store when the first incident with Mr Teasel occurred and he denied the remarks that Ms San said were made when he and others were going to lavatory. Ms Elchaar and a number of other witnesses gave statements that the making of racist or sexual slurs was out of character for Mr Lamb. Ms Elchaar also indicated that no sexual or racist remarks were made in the workplace to her knowledge. She did agree that there was occasional swearing in the workplace. Mr Chad Thomas, another butcher who was involved in the raw bacon incident, denied that he made any reference to Chinese food. Mr Teasel denied teasing the cashiers, said that he did not hear Mr Lamb make the remark "fuck off ching chong go back home" or any other allegedly racist or sexual remark. He did accept that he was involved in the egg and raw bacon incident although he denied the comments about the egg farts or that Mr Thomas had made any reference to Chinese food.

Ms Ross gave evidence that she did not hear Mr Lamb make inappropriate remarks of a sexual or racial nature but said that she did hear Ms San make racial remarks. She confirmed that Ms San made a complaint to her about what she described as:

And she told Ms San to speak to the store manager. She denied that Ms San had made any other complaints to her and said that she would have taken those complaints to Mr Lamb or Mr Cameron. She said that was the only time that Ms San made a complaint to her and after she had been directed to Mr Scamell the manager she never mentioned it again. Ms Ross does state in her affidavit:

"I recall the incident when Violet had a loud argument with Cheezel. She was shouting and swearing at him, loud enough to be heard by customers. I told Violet to go out the back, sit down and try and calm herself down. Afterwards I sent her home and told her to come back to work when she can get along with people. Cheezel is a polite and well mannered young man and I never heard him speak to anyone in a racist, sexist or aggressive manner."

Both parties accept that the responsibility of establishing the allegations made in these proceedings lies on the applicant and that whilst the burden of proof is to the civil standard the dicta in Brigginshaw v Brigginshaw [1938] HCA 34; (1938) 60 CLR 336 applies. In the second case heard in this court Shiels v James [2000] FMCA 2 I set out the manner in which I would look at questions of fact.

"[36] Tribunals and Courts of Law are frequently asked to decide which of two versions of a series of facts they accept. It is often a very difficult task particularly where both witnesses are credible. The decisions are made with the benefit of a number of factors. Perhaps the most important is each witnesses' demeanour in the witness box [by which I mean] his or her method of giving the evidence, the way questions are answered in cross-examination, the willingness to acknowledge the possibility of error and changes in recollection due to the passage of time. Other matters that would be looked at include the interest that the witness might have in the outcome of the proceedings and the inherent likeliness or unlikeliness of the evidence when considered with the background of the known facts. Finally, most Tribunals or Courts seek to find some form of corroboration from other evidence of whatever nature. The decision that is made is not always one between believing one witness and not believing another or holding that one witness is telling the truth and the other is lying. More often than not the decision comes down to the preference of one recollection over another."

This statement was approved by Emmett J in an appeal from this court in Horman v Distribution Group Ltd [2002] FCA 219. I have adopted this approach in connection with the evidence given in this case.

I found that Ms San answered the questions put to her in cross examination carefully, with thought and consideration. Her manner of response was quiet. Her denials firm. She made admissions against interest. I am prepared to accept her evidence that she was regularly greeted by Mr Lamb with the question "How's your love life" and other remarks. I do this because I found her evidence credible and, more importantly, it was corroborated by Ms Harding and at least partially admitted by Mr Lamb. I also accept her evidence in relation to the conversations that led to the remarks "Oh good I haven't seen an Asian cunt before." I say this because of my generally favourable view of the applicant's evidence and because there is some corroboration from Ms Ross who confirmed that the applicant complained to her about it. Whether the word used was "Asian cunt" or "I haven't seen an Asian come before" which I believe is a more likely remark coming off the back of the applicant's comment "Shall I come". I regard both to be remarks of a sexual nature.

I also accept Ms San's evidence that the remarks were unwelcome.

I do not subscribe to the theory put forward by the respondents that because Ms San did not make many direct complaints to Mr Lamb and did on occasion answer him back that this indicated that she accepted the remarks as ordinary employee banter. Firstly Ms Harding confirms that it appeared to be directed almost exclusively at Ms San and secondly I accept Ms San's evidence and the submissions made on her behalf that she saw Mr Lamb, who was for a time the manager of the premises, as a person in a superior position to her to whom she would have, at least to some extent, to defer. It would not be easy for her to tell him that she found the remarks unwelcome. I accept that she took what steps she could personally by answering very shortly then by responding positively to alleviate the situation. The respondent argues that Ms Harding's evidence confirms that Mr Lamb used the remark generally and it was in no way offensive. For the reasons just given I do not accept this. However, the "period" comment allegedly made was not put to Mr Lamb in cross examination nor was it given in evidence by the applicant and I cannot accept that it occurred.

Ms Ross says she has no knowledge of the conversations but confirms a complaint was made to her. One other witness who could have given important evidence about all of these matters was Mr Scamell. He was not called and no explanation as to why that occurred was given. I am entitled to infer that nothing he might have said would have been of any assistance to the respondent: Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298.

Mr Lamb denies making the racial comments alleged of him by Ms San the most serious of which is the allegation that he said in a sarcastic tone "That's right, fuck off ching chong go back home." I am not impressed by the geographic evidence that was put. No one suggested that the shop was particularly large. I have no reason to believe that Ms San did not hear what she says she heard and I accept that Ms San complained about this matter to Mr Scamell.

If Mr Scamell had given evidence he may have corroborated her.

I cannot say that he would, but I can say that his evidence would not have been of assistance to the respondents. In those circumstances I prefer the evidence of Ms San to that of Mr Lamb and am satisfied on the Brigginshaw standard that the events occurred.

I am also satisfied that the event that Ms San deposes to with regard to Mr Teasel occurred to an extent that was so similar to the way in which she described it that it would make no difference to a decision as to whether or not it constituted offensive behaviour under s.18C of the RDA. There is one area of disagreement in the sandwich incident and that is whether or not Mr Thomas made a reference to Chinese food. Mr Teasel and Mr Thomas both denied it. I found that Mr Thomas had given his evidence confidently and appeared to have an understanding of and sympathy with anti-discrimination policies. Putting his evidence against that of the applicant and noting Mr Teasel's denial I cannot be satisfied to the required standard that he did make the remark about Chinese food.

The respondents' witnesses gave evidence of conduct by the applicant which indicated that she made racist and sexual remarks. These witnesses were cross examined to the effect that anything said by Ms San was said in jest or in context such as "girl talk". To my mind the most serious of the allegations was that concerning the use of the frankfurters. This allegation was made by Mr Lamb and I have indicated previously that I prefer the applicant's evidence to his. She denied the incident. But the fact that Ms San may have made these remarks or acted in this way does not excuse any breaches of the Act by others. Her conduct could only go to consideration of whether the sexual remarks directed at her were likely to offend, humiliate or intimidate her.

The structure of the Anti Discrimination Acts passed by the Commonwealth of Australia follows a similar, but not identical, pattern. The RDA has a general provision making racial discrimination unlawful (s.9). It then makes specified areas of discrimination unlawful on the grounds of race. The relevant section for these proceedings is s.15(1) which is in the following form:

"(1) It is unlawful for an employer or a person acting or purporting to act on behalf of an employer:

(a) to refuse or fail to employ a second person on work of any description which is available and for which that second person is qualified;

(b) to refuse or fail to offer or afford a second person the same terms of employment, conditions of work and opportunities for training and promotion as are made available for other persons having the same qualifications and employed in the same circumstances on work of the same description; or

(c) to dismiss a second person from his or her employment;"

There is also provision in the Act prohibiting offensive behaviour because of race. This is s.18C discussed earlier. The section is in the following form:

Offensive behaviour because of race, colour or national or ethnic origin

(1) It is unlawful for a person to do an act, otherwise than in private, if:

(a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and

(b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.

Note: Subsection (1) makes certain acts unlawful. Section 46P of the Human Rights and Equal Opportunity Commission Act 1986 allows people to make complaints to the Human Rights and Equal Opportunity Commission about unlawful acts. However, an unlawful act is not necessarily a criminal offence. Section 26 says that this Act does not make it an offence to do an act that is unlawful because of this Part, unless Part IV expressly says that the act is an offence.

(2) For the purposes of subsection (1), an act is taken not to be done in private if it:

(a) causes words, sounds, images or writing to be communicated to the public; or

(c) is done in the sight or hearing of people who are in a public place.

"public place" includes any place to which the public have access as of right or by invitation, whether express or implied and whether or not a charge is made for admission to the place."

It was not argued in this case that JMM was not a public place.

In the SDA discrimination is first defined in s.5 the relevant sections of which for the purposes of this case are ss5(1) and 5(2) which are in the following form:

For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of the sex of the aggrieved person if, by reason of:

(b) a characteristic that appertains generally to persons of the sex of the aggrieved person; or

(c) a characteristic that is generally imputed to persons of the sex of the aggrieved person;

the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of the opposite sex.

(1A) To avoid doubt, breastfeeding (including the act of expressing milk) is a characteristic that appertains generally to women.

(2) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the sex of the aggrieved person if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons of the same sex as the aggrieved person."

Section 5(2) known as the "indirect discrimination definition" is subject to reasonableness tests set out in s.7B. As has already been noted there is no claim for indirect discrimination made in this case. Section 5 does not proscribe any activity. Discrimination is permitted save in circumstances where it is not permitted. Those circumstances include under s.14 discrimination in employment, the relevant sub-section being s.14(2) which is in the following form:

It is unlawful for an employer to discriminate against an employee on the ground of the employee's sex, marital status, pregnancy or potential pregnancy:

(a)

in the terms or conditions of employment that the employer affords the employee;

(b)

by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment;

(c)

by dismissing the employee; or

(d)

by subjecting the employee to any other detriment.

Finally, sexual harassment is defined in s.28A in the following form:

For the purposes of this Division, a person sexually harasses another person (the person harassed) if:

(a)

the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or

(b)

engages in other unwelcome conduct of a sexual nature in relation to the person harassed;

in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimidated.

(2) In this section:

"conduct of a sexual nature" includes making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing.

And made unlawful in employment pursuant to s.28B and relevantly sub-sections 28B(1), 28B(2) which are in the following form:

1) It is unlawful for a person to sexually harass:

(b) a person who is seeking to become an employee of the person.

(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 order to establish that a party has been discriminated against under either the SDA or DDA the applicant must satisfy the court of a number of matters. First, the alleged actions must fall within the definition of discrimination. Then the applicant must show that this discrimination occurred within one of the prohibited areas of life, in this case employment. In relation to offensive behaviour the applicant must show that the impugned act falls within both sub-sections 18C(1)(a) and 1(b). In regard to sexual harassment the impugned act must be unwelcome, of a sexual nature and in the circumstances set out in s.28A(1). In all instances there must be what Ronalds and Pepper describe in Discrimination Law and Practice 2nd Ed [36] as:

"An identifiable cause or link between the grounds of discrimination alleged and the decision or action complained about."

In this case the allegations would appear to be divisible into three. First there are the sexual harassment allegations concerning unwelcome remarks made by Mr Lamb. Second there are the offensive conduct allegations made against Mr Lamb and Mr Teasel and Mr Thomas. Third there are the allegations of less favourable treatment by Ms Ross and Mr Cameron. I shall deal with each in turn.

I have found that Mr Lamb did make most of the remarks attributed to him by the applicant. I am satisfied that this form of "sexual banter" can constitute unwelcome conduct of a sexual nature: Font v Paspaley Pearls [2002] FMCA 142; (2002) EOC 93-232, Hughes (formerly De Jager) v Car Buyers Pty Ltd [2004] FMCA 526; (2004) EOC 93-344. I also accept the evidence of Ms San that it was unwelcome. I do this because I believe she was generally a truthful witness and like many women (who are usually the unfortunate victims of this type of activity) in the workplace she was reluctant to make her feelings known. Her sense of hierarchy, which I will refer to again later in these reasons, reinforced the difficulty which she had in explaining to Mr Lamb that the remarks were unwelcome. But she did complain about those remarks and I have heard evidence about that from another witness. The objective test applied to this type of conduct is that of a reasonable person. Ronalds and Pepper state at [95]:

"There has been little judicial scrutiny on whether a reasonable person may or may not be offended, humiliated or intimidated when it is clear that the complainant responded in that way."

The proper test to be applied would surely be the same test that is applied to offensive behaviour generally. This involves taking into account the way in which society typically expresses itself. When George Bernard Shaw made Henry Higgins say _"Damn Mrs Pearce; and damn the coffee and damn you and damn my own folly"..._in Pygmalion there was allegedly a scandal in the English theatre. Nowadays words that once would have made a bishop wince are in common usage and found in newspapers, upon the television, and notoriously, on the cinema screen. In the High Court decision Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63, Gleeson J discussed the distinction between an activity that is done in private and one that is done in public. His Honour at 42 stated that in identifying what is private, it is necessary to account for:

"Certain kinds of activity, which a reasonable person, applying contemporary standards of morals and behaviour, would understand to be meant to be unobserved. The requirement that disclosure or observation of information or conduct would be highly offensive to a reasonable person of ordinary sensibilities is in many circumstances a useful practical test of what is private."

Similar sentiments were expressed in Rexlynne Nominees Pty Ltd v Last Frontier Picture Co Pty Ltd [1999] FCA 1380, a case that discussed whether or not an injunction should be applied to prohibit publication of a video that was alleged to cause irreparable damage to the reputation of the applicant, who was described in the video as a "larrikin". In determining if that word could be viewed as offensive, Heerey J [at 22] said:

"Many people in Australia today, in many different walks of life, use bad language from time to time. But there is a time and place for everything."

Thus a reasonable person having heard the evidence of Ms San that she said to Mr Teasel "what the fuck is your problem" would not consider that she would have been offended when she was told to "fuck off" by Mr Lamb. It might also be argued in those circumstances that the use of the word "fuck" did not constitute conduct of sexual nature. But the gravamen of the allegations against Mr Lamb is not the simple use of swear words in conversation but the making of remarks of a sexual nature directed at the applicant consistently and almost exclusively.

I am satisfied that a reasonable person would have anticipated that Ms San would be offended, humiliated or intimidated by being asked about her love life consistently in the way described in the evidence.

I have accepted Ms San's evidence that Mr Lamb also said to her on one occasion:

"That's right, fuck off ching chong go back home."

Ms San believed she heard Mr Lamb use another word but I prefer the evidence of the witnesses who were with him at the time. I do not believe that the first remark constitutes conduct of a sexual nature but I believe that the second remark does. Even though Ms San heard it as something other than that which was said I am satisfied that whichever of the two words were used it did constitute unwelcome conduct and such conduct could reasonably be anticipated to have offended her.

The remarks which are said to constitute offensive behaviour under s.18C RDA are the remarks made by Mr Lamb "Fuck off ching chong go back home", "I haven't seen an Asian come before" and the remarks made by Mr Teasel and Mr Thomas when Ms San was eating the cold bacon sandwich. I am satisfied that the remarks attributed to Mr Lamb were remarks that were reasonably likely to offend Ms San because of her race and that they therefore constituted a breach of s.18C. I am not so satisfied with regard to the remarks made in the sandwich incident. The applicant has asked me to infer that the remarks were made because the applicant was a person of Chinese origin and Mr Teasel and Mr Thomas who made them associated the eating of raw bacon with Chinese persons. I am not prepared to draw that inference. I have already stated that I am not satisfied that the one explicitly racial remark that was alleged to have been said was said on that occasion.

The evidence which was given by Ms San in her affidavit and under cross examination makes it clear to me that her dispute with Mr Teasel was not a dispute based upon his views of her as a person of a different race to himself. She became offended at what she perceived to be him ordering her around. She was also offended because of his apparent refusal to provide her with assistance. My impression after reading her affidavit and hearing her in the witness box was clearly that she believed that as a person of over 20 years of age she had a superior position in the hierarchy of JMM than did Mr Teasel. She believed that she should be treated with respect by Mr Teasel and that meant that he should not give her orders. The altercation between them which resulted in her being sent home and eventually quitting her employment was not an altercation which had any causal connection with her race or sex. She says that on at least two occasions in her affidavit that Mr Teasel was "disrespectful" to her. She says that she screamed at him, that she took matters into her own hands because she was so angry at the way he was treating her. It is clear she is a woman of some temper. She states that:

"In my anger I threw an empty cardboard box at him."

I am not satisfied that the applicant has established any causal link between the behaviour of Mr Teasel and her race or sex. It would seem that in the two main incidents deposed to by Ms San she was the person acting aggressively and her aggression was a product of what she saw as the disturbance of the proper hierarchal structure in the workplace.

Ms San asked the court to make findings that the actions of her employers following her final row with Mr Teasel constituted direct sexual discrimination. The evidence of Ms San on this matter as set out in her affidavit puts her case at its highest. Her story of the incident and the immediate aftermath is contained in paragraph 31 of her affidavit:

[31] "On 7 July 2003 I asked Cheezel to help me lift some heavy boxes out to the front of the shop because I was busy serving customers. Not only did he refuse to help me, but he ignored me as well, even though I asked him several times for assistance. He refused to work as part of a team. So I went out the back of the store and a conversation to the following effect took place:

I said: "Do you hate me Cheezel?"

Cheezel said: "No why should I?"

I said: "Then do you have selective hearing?"

Cheezel raised his voice and said: "Look Violet, don't start with me, if you have a problem talk to Chad."

I screamed at him and said: "Don't think you're so good now, you are nothing to me."

It was obvious that Cheezel was ignoring what I was saying and I became furious because of his lack of respect for me. In my anger, I threw an empty cardboard box at him. Janelle and Chad came running out to the back room, and a conversation took place to the following effect:

Janelle said: "Go home Violet! Get out! Everyone can hear you!"

Chad said: "Go outside and calm down."

I walked out to the back dock and sat down and had a cigarette.

I was crying and upset. Janelle came outside and a conversation to the following effect took place:

While pointing her finger close to my face and screaming, Janelle said: "You're an obnoxious little girl. You had no right to tell Cheezel off like that, and for Bee, you must apologise to her for being so rude."

I said: "Don't think I don't know that you bitch behind my back. You play favourites with Bee and me. You don't even know my part of the story and you are going to take sides."

Bee was one of the cashiers I worked with and Janelle favours her. Bee and I had a misunderstanding around that time and we could not resolve it between ourselves. Bee complained to Janelle and Janelle basically gave her the authority to tell me off.

Janelle said: "Don't come back until you decide to get along with everyone."

Janelle then went back inside and locked the door behind her so that I couldn't get back inside. I shouted and knocked on the door for about 15 minutes before Bee opened the door for me".

Ms San argues that the action taken by Ms Ross in locking her out of the shop for approximately 15 minutes constituted the treatment of her less favourably than, in circumstances that are the same or not materially different, she treated or would have treated a person of the opposite sex by reason of the sex of Ms San. Ms San argues that the proper comparator here is Mr Teasel. He was not locked out of the shop. I believe that it is clear from Ms San's own evidence that she was responsible for her argument with Mr Teasel rising to the level it did. I accept Ms Ross' evidence that Ms San had a short temper. I am not at all sure having heard the evidence of Ms Ross that Ms San was indeed locked out of the shop for 15 minutes, but assuming she was I do not believe that this occurred on the grounds of her sex. Certainly Ms San is a woman. Certainly Mr Teasel was not told "Don't come back until you decide to get along with everyone." But the reason those words were said to her was because of her behaviour and not because of her sex. An intention to discriminate is not required under the SDA: Australian Iron & Steel Pty Ltd v Banovic [1989] HCA 56; (1989) 168 CLR 165, Human Rights and Equal Opportunity Commission v Mount Isa Mines Ltd (1993) 46 FCR 301, Macedonian Teachers Association of Victoria Inc v Human Rights & Equal Opportunity Commission & Anor [1998] 1650 FCA, Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349. But the discrimination must be on the grounds of sex. The applicant has not satisfied me that it was.

The next matters complained about were the actions of Mr Scamell in requiring Ms San to go home at 1.00p.m. on the two days following the incident. Once again it is suggested she was treated less favourably than Mr Teasel who was not required to go home at 1.00p.m. and that she was a woman. It is suggested that the requirement for her to go home arose out of a failure by the company to investigate exactly what happened in the Teasel incident. I was told that I must draw an inference that Ms San's sex was a factor in the decisions made about what action was taken as a result of the activities. I am not prepared to draw that inference. Ms San's evidence would indicate that the row was so loud that everybody including Ms Ross heard it. Ms Ross was entitled to draw her own conclusions as to who was responsible for the row and even if she was wrong about it I cannot see any connection between the conclusion she came to and Ms San's sex. This was a case of having two employees who did not get on, deciding that it was the greater fault of one of them than the other and punishing that person accordingly. In a case of direct discrimination, which this is, more evidence than that is needed that the actions of Ms Ross were taken on the grounds of the sex of Ms San.

The situation regarding the short hours is more difficult. There is no doubt that by sending her home at 1.00p.m. Ms San was treated less favourably than she had previously been treated. But was she treated less favourably than a person of the opposite sex? In other words if Mr Teasel had been the person found to be at fault would he also had been sent home at 1.00p.m. on two days running. I am asked to infer that he would not and I am asked to infer that this was because he was a man and she was a woman.

Because no reason was given to Ms San by Mr Scamell for sending her home and because there is no independent evidence from which I can conclude that the reason or part of the reason was her sex the only way that I can find for Ms San is if I do draw the inference she request me to draw. She has the onus of proof and the respondent is not required to call evidence in rebuttal. But if the applicant puts up a prima facie case and the respondent does not rebut it then I would be entitled to find that the prima facie case is made out. In my view Ms San has not established a prima facie case of direct discrimination. It may be that Mr Scamell sent her home because she was a cashier as opposed to her being a butcher. And it may be that in doing what he did Mr Scamell imposed a condition requirement or practice that had the effect of disadvantaging persons of the same sex as Ms San because the preponderance of cashiers were female and the preponderance of butchers were male. But that is indirect discrimination and it was not alleged. If Ms San has not raised even a prima facie case I cannot utilise the rule in Jones v Dunkell to assist me to draw the inference she requires from the failure to call Mr Scamell to give evidence.

The final matter alleged by Ms San is that she was constructively dismissed and that the actions which caused her to have a reasonable belief that her contract was at an end arose out of the respondent's breach of the RDA or SDA. I would say immediately that as regards to this complaint and the last complaint that there is simply no evidence that the actions of the first respondent were racially motivated. The evidence is that the company employed a number of persons of non-anglo celtic background as is to be expected of a shop in that area of Sydney. There is no evidence whatsoever of any racial views being expressed by any senior member of staff or anyone responsible for Ms San's employment. I exclude Mr Lamb who was not the shop manager at the time Ms San left JMM.

Ms San submits that there was a failure to properly investigate her complaints of sexual harassment and racial discrimination; there was a failure to accord her natural justice in investigating the incident of the cardboard box; she was directed to leave the workplace; her hours were halved on two days and the company failed to provide her with the transfer to another branch as agreed. I have already found that on Ms San's evidence she was the person at fault in escalating the row with Mr Teasel. The evidence of Mr Cameron was that after Ms San approached him in Bankstown Mall he spoke to Mr Scamell but Mr Scamell didn't seem to think there was a problem. He agreed that he told Ms San to take her complaints to Mr Scamell and believed that the matter was one to be dealt with between them at shop level. His evidence was clear that the discussions which she had with him on

7 July were about being required to take orders from Mr Teasel. He did not agree that he had told her would arrange a transfer for her and he denied offering her the option of staying until she got a transfer or leaving and awaiting a transfer. On the other hand he agreed that he had spoken to her as deposed to by her when she did manage to raise him at the telephone and told her that he did not have a transfer for her yet. In these circumstances I prefer Ms San's evidence to that of Mr Cameron and accept that he did offer her the opportunity for a transfer.

Ms San's allegations of a failure to properly investigate complaints was not restricted to the final incident. She did not believe she was properly treated when she complained to Ms Ross or when she complained to Mr Scamell about the conduct of Mr Lamb. I think that her treatment was probably less than appropriate so far as Ms Ross was concerned. She should have taken the matter up with Mr Scamell. But that does not mean that the failure had any causal relationship with her race or sex. I do not know what occurred after Ms San complained to Mr Scamell about Mr Lamb but I am entitled to draw an inference that not very much did because Mr Scamell was not called to give evidence. However, that incident was some months before Ms San left her employment and I do not believe that there was a real causative link between that failure and her reason for believing that her contract was at an end.

The other matters which Ms San complains about certainly took place. There was not a full investigation of the box incident because Ms Ross thought she knew exactly what had happened. Ms San was directed to leave the workplace. Ms San's hours were halved for 2 days and she was not given a transfer to another branch as agreed. Those matters may have caused her to have a belief that the contract was at an end and that belief may have been reasonable. I would only have to make a finding on that if I found or inferred that Ms San's sex or race was a factor in the making of these decisions. There is no direct evidence upon which I can base such a finding and I do not make that inference, I do not believe it can be drawn from the evidence in this case as referable to direct discrimination.

In the result I have found that the second respondent breached the provisions of s.28B(2) of the SDA and s.18C(1) of the RDA. The first respondent has accepted its vicarious liability under s.18A RDA and s.106 SDA. I do not find that the applicant has made out any of the other claims advanced. The applicant seeks damages, which I am prepared to award. It is perhaps unfortunate that neither the SDA nor the RDA have a provision for additional damages the type found in s.115 of the Copyright Act 1968 that are intended to deter the type of conduct found to have occurred. In the circumstances damages for this type of activity must be limited. There has been discussion on quantum in such cases as Hall v Sheiban [1989] FCA 72; [1988-89] 85 ALR 503; Commonwealth v HREOC [2000] FCA 1150; Gilroy v Angelov [2000] FCA 1775 and Commonwealth of Australia v Evans [2004] FCA 564. The principle which can be distilled from those authorities is that damages should be assessed in a manner similar to those for personal injury so that where medical sequelae can be established the damages will be more substantial than where they cannot. In this case no evidence was proffered of an expert nature and there was no lay evidence of the effect upon Ms San other than her own. I am satisfied that the remarks made would be hurtful. But the evidence is that they did not contribute towards her decision to leave job. I am satisfied that arose purely out of her altercations with Mr Teasel and the events thereafter. Those events do not constitute a breach of either Act by the respondents in the manner claimed by the applicant.

In all the circumstances I believe an appropriate amount to award for damages is the sum of $2,000.00.

The applicant has succeeded in her claim although not all of her claims. The normal order would be that costs follow the event. I had in Kelly v TPG Internet Pty Ltd (No 2) [2005] FMCA 291indicated that it is not appropriate to fillet costs decisions so that the unsuccessful party obtains relief for the costs of that part of the hearing in which it was successful. But there may be other reasons why I should hear the parties as to costs before making an order and I will do so.

The applicant also asks for a declaration and for an apology. It is generally considered not appropriate for a court to give a declaration in matters such as this where the order itself constitutes an acknowledgment of a breach of the Acts. I will not give a declaration. I have in the past made it clear that I see no utility in requiring people to give apologies. An apology should come from the heart and not be the subject of a court order. I think that the applicant deserves an apology from both the respondents and I would hope that following their reading of this judgment they will give it. But I will not order them to do so.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Raphael FM