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[2000] FMCA 2
Federal Magistrates Court of Australia
2000-09-13
Original judgment source is linked above.
Discrimination in employment on grounds of sexual harassment
Ms Diana Stewart instructed by Messrs Higgins & Higgins, Solicitors
Ms Katherine Eastman instructed by Messrs Cowley Hearne, Solicitors
1 This application is brought by Donna Marie Shiels against Trevor Leighton James and Lipman Pty Limited pursuant to s.46PO of the Human Rights and Equal Opportunity Act 1986 (Cwth) [HREOC Act] claiming that she was the subject of sexual harassment contrary to s.28B (6) of the Sex Discrimination Act 1984 (Cwth) [SDA].
3 The proceedings when originally commenced, included as a Respondent Anthony Michael Wood. However, on the first day of the hearing it was submitted by Counsel for the Respondents that whilst the original complaint had included an allegation against Mr Wood, this allegation had been withdrawn by a letter from the Applicant's solicitors, Messrs Higgins & Higgins, to HREOC dated 2 November 1998 [Exhibit 1] which stated in terms:
"Mr Tony Woods (sic) is not to be identified as a Respondent".
4 On the second morning of the hearing the Applicant's Counsel formally withdrew the claim against Mr Wood.
5 Although the proceedings before this Court were not conducted by way of points of claim or other form of pleading the original affidavit of the Applicant indicated that it would be alleged that Ms Shiels' employment with Lipman Pty Limited was terminated as a result of the discrimination which she had allegedly suffered. This allegation would give rise to a claim in damages for loss of earnings. It was submitted by Counsel for the Respondent that although this claim was contained in the application to the Court it was not contained in the original complaint to HREOC. S.46PO(3) HREOC Act states:
"The unlawful discrimination alleged in the application:
(a) must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the complaint; or
(b) must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint."
6 The effect of this section, it was submitted, was to prevent a claim of unlawful termination of employment from going forward if it had not been alleged in the initial complaint before the Commission.
7 The Court found that no complaint of this type had been made to the Commission and ordered that it could not be put forward to the Court. However, it was made clear to the parties that this would not prevent the Applicant from claiming as damages any loss of earnings arising out of her inability to obtain employment or any reduction in that ability because of the effects upon her of the alleged discriminatory behaviour.
8 During the hearing the Applicant sought to adduce evidence from Dr Parmegiani. The production of that evidence was objected to by the Respondent on the grounds that the procedures set out in the Practice Note prepared by the Federal Court in relation to expert witnesses had not been complied with. This objection was overruled and reasons were read on to the transcript. Essentially the Court came to the view that as the Applicant had complied with the terms of s.177 of the Evidence Act and in view of the objects of the Federal Magistrates Court which were to pursue its proceedings with the minimum of formality it was in the interests of justice that the evidence be admitted.
What facts does the Applicant rely on to establish her claim?
9 The complaint to HREOC put forward by the Applicant consists of the completed complaint form and amended complaint form together with three documents. The first of these documents is an annexure to the first complaint form and has been described in the proceedings as the 4 August document [Exhibit 2] because it was filed with the complaint on or around 4 August 1998. The second is described as the 2 December document [Exhibit 3] because it contains a date stamp from the HREOC as having been received on that date. The third document is entitled "statement in reply" [Exhibit 4]. It does not have a date but is signed by the Applicant and must come after February 1999 as it makes reference to a statement of Peter Baker dated 4 February 1999. The Applicant filed three affidavits in the proceedings dated 11 May 2000, 10 July 2000 and 25 August 2000. She also gave oral evidence.
10 The Applicant stated that she was a single mother living in Oberon when in October 1997 she obtained through an employment agency, SOS, a job as a temporary clerical assistant in the site office occupied by Lipman Pty Limited in connection with that company's contract for the erection of the Lithgow Hospital. The site office was a temporary building which measured approximately 15 metres by 30 metres and was occupied by the Applicant and five or six other men. A plan of the site office became Exhibit 5.
11 The project manager and the most senior employee operating out of the site office was Mr Peter Baker, his next most senior employee was Mr Trevor Leighton James, the site manager. The Applicant was required to undertake secretarial duties which consisted of typing letters and reports, organising files, acting as receptionist and answering the telephone. She did most of her typing for Mr Baker but she also did some for Mr James and other staff members. For the first two weeks of her employment she shared an office with Mr James whilst her area of the office was being erected.
12 The Applicant had a teenage daughter who was undertaking her final school studies and two younger sons. Shortly after obtaining this employment she decided to move from Oberon to Lithgow and she shared a house with another site worker whose name was Mr Hacket. Excluding the matters which are the subject of this application, the relationship between the workers at the site office was reasonably harmonious and co-operative. Ms Shiels took part in out of work activities such as after work drinks. Ms Shiels' daughter, Ms Sarah Jane Bird, visited the site from time to time and utilised the office equipment and services contained there for the purposes of her studies. Ms Bird only lived in Lithgow for a short period after her mother commenced work, deciding to remain at school and with her boyfriend in Oberon.
13 The Applicant makes a series of allegations about the conduct of Mr James which have conveniently been collected by the Respondent's counsel and set out in her written submissions. This form has been substantially reproduced in these reasons for decision but there has been added the references to various allegations which have been made in the affidavits of the Applicant and Ms Bird.
"About the same time, the other men in the office started to have a number of conversations about my friend in America. They often asked me questions in words to the following effect":
Leighton James asked personal questions about my life.
"Mr James started making personal remarks and asking personal questions":
"Leighton James asked whether I was wearing certain underwear and if I had any on at all"
"Often, remarks were directed at me by Mr James to the following effect:
"I can see your g-string" and "what sort of underwear are you wearing today"?
* Page 1, Para [5] Document 2 December 1998:
"During those three months on a daily basis, Mr James would make the following comments to me:
(a) "What kind of underwear are you wearing today?"
"Mr James started making personal remarks and asking questions to the following effect:
* Affidavit of Sarah Jane Bird 10 July 2000, para 7
"I remember a number of conversations between Mr James and my mother in which I heard him say words to the following effect to my mother:
"Did you get a bit last night? or "Didn't you get a bit last night?""
* Page 1, para [8], [9] and page 2, para [1], 4 August document:
"That was said to me on several occasions when I asked the workers to cool it when the language started."
"I often got extremely angry and told the other men to stop swearing in front of me."
"Karen Stapleton said to me words to the following effect:
"They said they were pleased with you, I don't know how you handle this with all the swearing and alcohol..""
"However, my swearing in the office was nothing in comparison to the amount of swearing in the office when the males were in there drinking in front of me. My mother came to the office, I was embarrassed to the point of walking out and letting my mother hear such foul language by the men in the office."
"I observed a lot of alcohol was drunk and much swearing took place. I did not like the language but I put up with that."
"If I was standing at the photocopier and the site manager walked past he would purposely rub up against me either touching my breast of (sic) my leg."
* Document of 2 December 1998, Page 1, Para 6:
"When I was using the photocopier, Mr James would walk past me and run his hand along my behind or rub against my shoulder touching my breasts".
"Whilst undertaking some of my duties, for instance photocopying, Mr James used to pass me and run his hands along my bottom and rub my shoulder, touching my breasts. This sort of behaviour happened at least two or three times a week during the whole period I was employed at Lipman."
"On one occasion my computer had broken down and Mr James offered to fix it. He bent underneath my table to take a closer look at the computer and looked up my dress."
"When Mr James was fixing my computer on one occasion, I was standing next to my desk and Mr James was under the desk. He grabbed my leg and when I tried to move away for (sic) the desk he looked up my dress."
"On another occasion my computer broke down and Mr James attempted to fix it. He bent underneath my table to look up my dress. He said to me words to the following effect:
"Come a bit closer so I can take a better look.""
"For example, on one occasion I observed Mr James looking up my mother's dress, from under her desk, and touching her on the knee while he was working on connections for the computers."
"On another occasion Mr James was fixing his own computer and was lying on the floor on his back. I walked into his room to deliver some files wearing a dress and Mr James said to me:
"Walk over here so I can look up your dress and get a better look.""
"On a further occasion I walked into Mr James' office to deliver files. He was lying on the floor fixing his computer and he said to me words to the following effect:
"Walk over here so I can look up your dress and get a better view.""
"Mr James would find it amusing to flick rubber bands at my legs. When this started to occur I bent over to touch my legs and I soon realised he would flick the bands so I would bend over and he would watch my reaction with other men and laugh."
"Mr James was always flicking rubber bands to get my attention. I did not ever flick rubber bands at anyone as this was juvenile and I did not want to be recognised as an attention seeker. On one instance Mr James flicked a rubber band and hit me in my tailbone while I was standing at the photocopier. I was very angry and said to Mr James:
"Another of Mr James' ploys was to flick rubber bands at my legs and this would cause me to bend over to rub my legs. I observed him to watch me bend over. I attempted to ignore Mr James rather than respond to these activities."
20 The allegations adumbrated above were described by both Counsel as being extremely serious. Ms Shiels complained that they had caused her considerable distress and made her working life at Lipmans very difficult. Ms Bird in her Affidavit, para 11, stated:
"I observed my mother to become increasingly distressed over the time that she worked at the hospital site for Lipman. Especially after the time that we moved to Lithgow and whilst we were living in Lithgow she seemed very upset and used to frequently become very angry and take it out on us."
"I have never known my mother to be like this before."
"From my observations I say that she has changed since that time and lost her confidence and self esteem to the point where I suggested she should see a counsellor..."
"From my observations, it seemed to take at least a year before my mother was anything like her old self. For a long time she stopped going out and became quite (sic) and withdrawn. She seemed really lost and strange."
"...She stopped eating and became very thin and from my observations, seemed to live on coffee and cigarettes and smoked to me to be very unhealthy.
"I had always previously observed my mother to be very conscious of her appearance but then she seemed to let herself go and seemed very unhappy and seemed not to care about anything."
" I observed that up until the time my mother had worked for Lipman, she had always been a cheerful helpful person and very supportive of her family.
"As I have indicated I noticed a big change in her after that period."
28 Ms Shiels in her Affidavit of 10 July 2000 states that:
"For a long period following my employment with Lipman, I had difficulties in sleeping and experienced nightmares involving physical assault, rape and situations where I was being stalked by Mr James. I lost approximately 6 kilos in weight and felt thoroughly depressed and lacking in self esteem."
29 In February 1998 Ms Shiels' employment with Lipman was terminated by Mr Baker. She was told that she was being let go because of failings in her typing abilities and also because Mr Baker had heard that she had been discussing company matters on social occasions. She was paid two weeks notice and she asked Mr James whether he could provide her with a reference. He did not provide a reference in writing but he did provide an oral reference to the next clerical job which Ms Shiels got some short time later with the Cox's River Catchment Area Authority. This position was in an office entirely staffed by females.
30 It is Ms Shiels' claim that since the incidents which form the subject matter of this application she has been unable to work in an office environment which contained men. She says she has had to take what she describes as "menial" jobs of the process worker/cleaning variety instead of being able to improve her position through clerical work. Ms Shiels' allegations concerning her employment abilities were considered by the consulting psychiatrist Dr Parmegiani in his report which became Exhibit A in the proceedings. In his oral evidence Dr Parmegiani said that Ms Shiels would find it difficult to return to work in an all male environment. He also said that she could work in a mixed environment provided it was monitored.
31 Other matters that assumed importance in the evidence of Ms Shiels were her relationship (this term being used in its widest possible sense) with Mr Hacket and her relationship with an American named Kerry who she met on an internet chat line and with whom she lived in the United States for a period from 21 March 1999. Although these relationships had no bearing on the allegations made by Ms Shiels she was cross examined extensively about them in order test her credit generally.
32 Importantly, there is no allegation by Ms Shiels that she made any complaint about the behaviour of Mr James to Mr Baker or to any other person within the organisation apart from Mr Hacket who was not really in a position to do very much about it. However, she does state in her Affidavit of 10 July in paragraph 40:
"I recall many conversations with Mr James to the following effect:
To which he either made no response or laughed.""
What facts does the Respondent dispute and how is that done?
33 With the sole exception of one incident relating to the flicking of rubber bands which Mr James deposed was instigated by Ms Shiels, the Respondents and Mr James in particular, deny each and every allegation. He denies emphatically all allegations of physical involvement with Ms Shiels, he denies emphatically the allegations concerning his looking up her dress whilst repairing either his or her computers and he denies the gravamen of remarks that he is alleged to have made about her appearance and about her sexual activity. He stated that he may have complimented Ms Shiels on her appearance from time to time but that was all. This is therefore not a case where a finding could be made that the parties merely misunderstood one another. The Court is required to come to a conclusion as to whether or not, on the balance of probabilities, the events alleged by Ms Shiels took place, and if they did, whether they took place with the frequency suggested by her.
34 The evidence for the Respondents was given by Mr James and by Mr Baker. Mr Baker also deposed to the fact that he had not witnessed any of the incidents alleged by Ms Shiels even though he spent approximately 50% of his time in the office which was a small and closely confined area.
35 It is the Respondent's evidence that around 28 November 1997 Ms Shiels and all members of the Lipman staff at temporary offices received a document entitled "Lipman Pty Limited Anti-Discrimination, Sexual Harassment and Non-Smoking Policies". This document described discrimination and sexual harassment and provided a guide to the reader as to what to do if the reader felt he or she was being discriminated against or sexually harassed. The document also provided details of persons to whom a report about discrimination or harassment could be made.
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, 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. Recollection is notoriously unreliable.
37 In this case the evidence of Ms Shiels was tested by means of an attack on her general reliability as an historian and in particular on the apparent inconsistencies between the various documents which formed her claim and the evidence in support of it. The documents are indeed inconsistent both internally and when compared with one another. For example, paragraph 19 of the Affidavit of 10 July 2000 Ms Shiels refers to her relationship with Mr Kerry Harbutt, the American. She states in paragraph 20:
"I was concerned to maintain our privacy and was most particular in not gossiping or having conversations about my private life outside the office."
"At about the same time, the other men in the office started to have a number of conversations about my friend in America."
39 The Court is forced to question how the men in the office could have learnt about Mr Harbutt unless they were told by Ms Shiels who had previously stated that she wished to keep her personal and business life separate.
"I was continually sexually harassed by Layton (sic) James from the day I started to the day I left."
41 In her Affidavit 10 July in paragraph 22 she states:
"As far as I was concerned, everything went smoothly for the first couple of weeks working for Lipman."
42 And in the her oral evidence she agreed that the allegations she was making concerning Mr James' behaviour did not commence until approximately two weeks after she had commenced work.
"There were several conversations between workers and most of the time during and after work the swearing was extremely bad. This didn't really bother me."
44 Ms Shiels was cross-examined concerning her relationship with Mr Hacket. In 4 August document there was a reference to this gentleman in paragraph [4] where Mr Shiels says:
"Whilst employed in the position I had a relationship with one of the workers also employed by Lipmans."
"Mr Greg Hacket and I had formed a relationship when I was working at the construction site."
46 In her Affidavit of 10 July 2000 in paragraph 48 she states:
"There was no question of any personal or physical relationship. We were simply good work friends."
47 In the statement in reply Page 3, Para 5, she states:
"In February 1999 Mr Hacket and I decided to lie to Mr James about our relationship. We decided to pretend to Mr James that we were no longer involved in the relationship because Mr James constantly asked me personal questions about my relationship with Mr Hacket."
48 Even after re-examination the Court is no nearer to understanding what the real relationship between the Applicant and Mr Hacket was. One is left with the feeling that the Applicant was being evasive in this regard. However, whilst that may go to her general credibility it does not really affect the core issues in these proceedings.
49 Another matter upon which the Applicant was cross-examined in some detail was the length of time for which she worked for Lipman. She stated that she commenced work in November but it was accepted during the course of the proceedings that she had in fact commenced work in October 1997. She also stated that she had received the Anti-Discrimination documentation about two weeks after she had started work but this came in late November which was in excess of one month after she had started. The Applicant was inconsistent about the time at which the allegedly harassing comments commenced and in evidence insisted that this had happened after about two weeks and not immediately as she had originally suggested.
50 The Applicant was pressed about certain inconsistencies in her statement. These appear to be more the product of bad typing than anything else and in this regard the Court generally accepts the evidence of Mr Baker that he was dissatisfied with the Applicant's typing abilities and that this together with the report he had received concerning her talking out of turn prompted him to dismiss her. It should be recalled that in this regard Ms Shiels was not an employee of Lipman but a temporary typist hired from an agency that could presumably be asked quite easily to replace her with someone whose skills were more well honed.
51 One incident upon which the Applicant was seriously challenged related to the incident under her computer. The effect of Mr James' evidence was that it was physically impossible for him to be working under the computer and looking up the Applicant's dress in the manner in which he described. A photograph [Exhibit 6] was tendered in evidence and there is no doubt that the area was small and cramped. The incident is referred to in the 2 December document and in the Affidavit of 10 July.
52 It does not appear to have been suggested by the Applicant that Mr James peered up her skirt from directly underneath rather that he looked up her skirt probably from some angle. The incident is corroborated by Ms Bird in her evidence when she states that in addition Mr James touched her mother's knee.
53 The cross-examination of Ms Shiels was rather more effective when she was challenged about the number of times the type of remarks which she alleged had been made by Mr James were made. She agreed that this probably did not happen every day or even three or four times a week but she insisted that the remarks had been made and had offended her.
54 Both Ms Shiels and Mr James were put through the same type of cross-examination attempting to elicit admissions that there were inaccuracies in their Affidavits. It is not unsurprising that there were inaccuracies in both witnesses' statements. The question which is posed by this revelation is whether the existence of inaccuracies influences the Court in its view of the evidence as a whole. Is the gravamen of the evidence still believable? Did the cross-examination influence the Court to prefer one version of the facts over another? The Applicant's phraseology might have been more accurate but the rather loose use of words and phrases is not necessarily indicative of untruthfulness.
55 In coming to a version of the facts it is necessary to make a judgment about the veracity of the witnesses. The Court has no difficulty in accepting the evidence of Mr Baker. He gave his evidence clearly, was responsive to the questions put to him in cross-examination and appeared to have no vested interest to protect. However, the fact that he did not witness any of the incidents which were referred to by the Applicant does not mean that they did not take place. By his own admission he was only in the office about 50% of the time and appears to have been preoccupied with ensuring the wellbeing of the site in general. He gave evidence about the efficiency of Ms Shiels as a typist which the Court, having considered a number of the documents prepared by Ms Shiels in relation to the case has little difficulty in accepting, but his evidence does not provide an answer to the complaints made by Ms Shiels.
56 Ms Bird was also considered to be a witness of truth. She was impressive in the manner in which she gave evidence and in which she dealt with the cross-examination. She appeared to have few allusions about her mother but did have a genuine impression that her mother was not herself whilst working at Lipman and continued to be affected by what had occurred for some time after that employment had ended. She made no suggestion that she herself was the victim of any harassment or unwelcome sexual advances from Mr James but she did corroborate the Applicant's complaint of unwelcome remarks and of having her skirt looked up by Mr James. The existence of this evidence makes the task of believing Ms Shiels considerably easier.
57 It is accepted that in the case of Mr James he was faced with the difficulty of having to prove a negative. He claims that the actions alleged against him just did not occur. Short of repeating that statement again and again there was little he could do. Through his evidence he sought to point out that his relationship with Ms Shiels was a friendly one and that he had given her considerable support and assistance both within the work situation and outside it. Ms Shiels accepted that she went to Mr James for help after she had heard that her job was in danger, she accepted that Mr James lent her his motor vehicle on occasions, she accepted that Mr James had discussed the participation in a fishing trip with her sons and she accepted that she had asked Mr James to provide her with a reference.
58 These admissions pose a paradox. They indicate a relationship which is either inimical to the allegations made or a relationship which could exist notwithstanding what is alleged to have occurred.
59 The Applicant gives as her reason for her failure to complain about the unwelcome activities of Mr James the fact that she was a single mother anxious to remain in work so that she could care for her three children. She tried to ignore the occurrences although she was fearful that they might go further. Whilst in the clinical atmosphere of a Court of Law Ms Shiels' silence and continued harmonious relationship with Mr James may seem odd it would likely appear less so in the confines in a temporary office on a building site in Lithgow in which Ms Shiels, anxious to keep her job, was the only female worker.
60 Under cross-examination Mr James did not resile from his position that the activities complained of had not taken place. It was submitted by Counsel for the Applicant that Mr James gave his evidence in a manner that was "flip" and "smart alecy". This suggestion is not accepted but it is felt that Mr James did give his evidence in an awkward and unopen manner which was less impressive than that of the Applicant. Mr James was asked a series of questions about his interest in the clothes the Applicant was wearing. Having previously agreed that he did comment favourably on her appearance on occasions his following answers denying interest in her clothing, its shape, form or colour were unconvincing.
61 Mr James did make an admission in relation to the rubber band flicking incident. He stated that this was done on only one occasion and was instigated by the Applicant. It is the Applicant's case that it happened frequently. Although it is not entirely clear whether this was solely to get the Applicant's attention or in addition to make her react in a way, such as bending over, that would have a sexual connotation, the Court is of the opinion that the latter is the more likely explanation.
62 Taking all of these matters into account the Court is of the view that approximately two weeks after Ms Shiels commenced work at the Lipman site she began to receive unwelcome remarks from Mr James which were of an overtly sexual nature. The Court is of the view that Mr James questioned the Applicant on her personal life in an unwelcome manner and ignored any protestations which might have been made.
63 The Court finds that the incident described by Ms Bird relating to the computer took place as did the second incident described by the applicant. It finds that whilst the number of occasions is in all probability exaggerated there were times when Mr James passed by the Applicant at the photocopying machine and touched parts of her body in an unwelcome manner. The Court finds that the rubber band incidents were instigated by Mr James, took place on more than one occasion and were part of a pattern of sexual pressure placed upon the Applicant by Mr James.
64 The Court accepts that no complaints to any other person than Mr James were made but the complaints which might have been made to Mr James were made in a way that had no effect upon him.
65 The Court finds that the Lipman Anti-Discrimination Policy was provided to Ms Shiels and the other members of staff on or about 28 November 1998 and that the persons named in the document were both in Sydney. One was a male and the other was a female with whom Ms Shiels had had some dealings but only on a company basis. She would have had to telephone this person during working hours from the small office to make any complaint to her. The only other person to whom she could have complained was Mr Baker who was of an age with Mr James and obviously worked closely with him. There was no evidence produced that the policy was explained to the staff or amplified in any way.
66 The Court also accepts that after Ms Shiels' dismissal from the Lipman site she worked satisfactorily for some six months in an all female office for the Cox's River Catchment Area Authority doing clerical duties. Between that time and the date of this hearing a number of events have occurred in her life. She travelled to America with her younger children to meet the gentleman that she had first communicated with on the Internet and hoped to marry him. That did not occur. She returned to Australia. Her daughter became pregnant and had a child and a close friend with whom she had had a relationship and indeed had been described as her fiance, died of heart failure while she was in America. Dr Parmegiani agreed that these were traumatic events in her life but their importance must be tied to what eventually were her claims in respect of the effect of the conduct she had been subjected to whilst at the employ of Lipman Pty Limited. Originally a very substantial claim was made. This was later withdrawn and replaced by a claim for a cushion arising out of the difficulty which the Applicant may have in obtaining clerical employment in an all female office or in a mixed office with supervision. Dr Parmegiani felt that the completion of these proceedings would accelerate Ms Shiels' recovery and the fact that she did not feel the need to seek her own medical advice would tend to indicate that the effects of Mr James' conduct upon her were capable of being overcome.
67 The Applicant contends that the actions of Mr James were in breach of the SDA Part II Section 28B which states:
"(6) It is unlawful for a workplace participant to sexually harass another workplace participant at a place that is a workplace of both these persons."
Sexual harassment is defined in Part II Section 28A as follows:
"(1) For the purpose 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.
68 There was also alleged sex discrimination under ss.5 (sex discrimination), 14 (discrimination in employment or in superannuation) 16(d) (discrimination against contract workers).
69 It was submitted that the Second Respondent Lipman Pty Limited is liable in this matter pursuant to s.106 SDA which provides as follows:
"(1) Subject to sub-section (2) where an employee... of a person does, in connection with the employment of the employee...
(b) an act that is unlawful under Division 3 of Part II;
this Act applies in relation to that person as if that person had also done the act.
(2) Sub-section 1 does not apply in relation to an act of the kind referred to in paragraph 1(a) or (b) done by an employee or agent of the person if it is established that the person took all reasonable steps to prevent the employee or agent from doing acts of the kind referred to in that paragraph. ""
70 There was little disagreement between the parties that if it was found that the conduct alleged had taken place then it would have constituted sexual harassment as defined and that subject to the proviso in sub-section (2) of s.106 SDA Lipman, the Second Respondent, would be vicariously liable for the actions of Mr James and the other workers. Counsel for the Respondent also agreed with the Court that the facts could show a case of discrimination short of harassment if it was found that the rubber band flicking incidents did not have a sexual connotation but were merely indicative of conduct that was made towards a woman which would not have been made towards a man. The Court was given considerable authority relating to the burden of proof and the appropriate tests to be applied. The Court was also referred to Hall v A & A Sheiban Pty Limited (1988) 20FCR 217 where at p252 Wilcox J said:
"Not every sexual comment between employer and employee, even if those people be of different sexes, is capable of being regarded as sexual harassment. That will be because, in such cases, the parties concerned enjoy a relationship of personal equality, permitting each of them to control the course of their conversation without fear for, or actual affect upon, anybody's employment prospects. On the other hand, there may be comments, incapable of serious belief, which are not given and received in a relationship of personal equality which do fall within the concept of sexual harassment."
71 The Court's attention was also directed towards a number of cases in which Applicants have failed to satisfy Commissioners under HREOC that discrimination had taken place. This included Richard Davidson v Michael Murphy H97/194 before Sir Ronald Wilson, Rebecca Jane Hosemans v Crea's Glenara Motel Pty Limited and John Hanna No H98/89 before RRS Tracy QC and Magda Youssef v Ramzy Bashay No H96/56 before Commissioner Sidoti. The Court was also referred to Kalich v Es (1999) EOC 92/961. This case like several others indicated that a Court in weighing the allegations should be satisfied to the Briginshaw standard that they occurred. Other cases such as Doyle v Riley & Anor (1995) EOC 92/748, Smith v Buvet & Anor (1996) EOC 92/840 and Proceedings Commissioner v Woodward & Anor (1998) EOC 92/943 went to the general award and quantum of damages.
72 The Court finds that the remarks, the incidents around the computers and the photocopier attributed to Mr James constituted unwelcome conduct of a sexual nature within the meaning of s.28A of SDA. It finds that this conduct was committed by one workplace participant upon another workplace participant in contravention of s.28B(6). The Court finds that the incidents relating to the elastic bands were also of a "sexual nature" forming part of a broader pattern of inappropriate sexual conduct (Harwin v Pateluch No H94/40 before Commissioner Kevin O'Connor 21 August 1995).
73 The Court has some difficulty with the allegations of swearing. There is no direct allegation of Mr James swearing in the company of Ms Shiels. It seems to have been workers generally on the site. The Court is assisted in coming to a conclusion on this matter by the findings in W v Abrop Pty Limited HREOC No H95/95 before Commissioner RG Atkinson where a finding was made that offensive language constituted sexual discrimination in a situation where abuse of male employees took place in private and abuse of the complainant took place in public. However, in that case there was not only direct abuse of the complainant but also a general use of abusive language in the workplace that was not included in the findings which led to an award under s.81 SDA. In the instant case there is no evidence that swearing was carried out by Mr James and might therefore form part of the pattern of his general harassment of the Applicant and there is no evidence that it was directed against the Applicant in a way which might constitute discrimination if the words used were not considered to be "of a sexual nature". In short the behaviour appears to have been rude, overbearing and boorish and it certainly offended Ms Shiels but it does not, according to the evidence given and the arguments presented, constitute discrimination under SDA.
74 The Court finds that the Second Respondent is unable to bring itself within the exception found in sub-section 2 to s.106 SDA for the following reasons:
1 That the Anti-Discrimination Policy, as good as it was, was not delivered to the Applicant or indeed any of the workers on the site until 28 November 1998 some six weeks after the Applicant had commenced work and some four weeks after the allegations of sexual harassment which the Applicant experienced from Mr James commenced.
2 There was no explanation of an oral nature to any of the work people about the policy nor was its existence specifically drawn to any person's attention.
3 The Applicant could have expected that her interests would be looked after in a more direct manner in the particular circumstances in which she found herself, a lone female on a building site.
4 The persons who were nominated as contacts in the case of suspected sexual harassment were persons who were based in Sydney with whom she had little or no contact on an ordinary day to day basis.
5 There is some evidence that Ms Shiels complained to Mr James about the incidents, but he, although a senior employee of the company, did not desist.
75 In order to succeed in her application the Applicant must establish that on the balance of probabilities the incidents which she described in her complaint and in the application occurred and that they constituted in law the type of unwelcome conduct which has been defined as sexual harassment. The Court has come to such a conclusion after weighing up all the evidence and the manner in which it was given. The Court took into consideration those matters discussed earlier in this Judgment which affect any decision on the witnesses' veracity.
76 The Court has indicated in general terms that it preferred the evidence of Ms Shiels to that of Mr James. Some of the evidence of Ms Shiels was corroborated by her daughter Ms Bird whose evidence the Court unequivocally accepts. It follows from this that the Court finds that Ms Shiels was the subject of unwanted sexual harassment from Mr James and that this commenced approximately two weeks after she commenced in her employment and continued until she was dismissed. The Court is of the view that neither the remarks nor the incidence of physical contact around the photocopier happened as frequently as Ms Shiels alleged but finds that they were not isolated incidents but part of a general pattern. The Court accepts that Ms Shiels may have made some protestation to Mr James indicating that his conduct was unwanted and humiliating and that he did not desist from it. The findings of law described in the previous section make Lipman Pty Limited, the Second Respondent, liable for the actions of Mr James.
77 The Applicant claims relief by way of compensation under s 46PO(4)(d) HREOC Act. The compensation should be made up as to two parts. The first relates to a form of damages for what is described in Kalich v Es (supra) as "compensation for hurt, humiliation and distress" which is also addressed by Lockhart J in Hall v Sheiban (supra) p522 and 526 by Wilcox J at 548. The second head of damage relates to the economic loss allegedly suffered by the Applicant arising out of the effects of the harassment which she complained of. Although originally this was set at a very high figure the Applicant, through her Counsel, later resiled from that position and substituted instead a claim for a cushion to take into account the difficulties she may have in finding work in a suitable environment.
78 The Court believes that such a cushion is appropriate but in considering the amount notes the evidence of Dr Parmegiani that the conclusion of these proceedings will itself have a beneficial effect on the Applicant's condition and the fact that she has suffered a number of trauma totally separate from these proceedings. Nonetheless, the cushion should not be minimal and should take into account that the Applicant lives and works in an area of high unemployment.
79 The cases, including those previously cited, indicate a range for damages for hurt and humiliation of between $7,500.00 and $20,000.00. In the higher range of those Judgments the activities complained of constituted either more physical action (Harwin v Pateluch) (supra) or more substantial physical sequelae (Smith v Buvet)(supra). Bearing these matters in mind and the dates upon which those cases were decided the Court is of the view that an appropriate award in this case would be $13,000.00. In respect of the cushion for loss of employability the Court is of the view that an appropriate award would be $4,000.00. These awards are made against both the First and Second Respondents.
80 The case proceeded before the Court for three days. The amount of the award would be totally extinguished if no order for costs was made and in those circumstances costs should follow the event and the Applicant should have her costs payable by the First and Second Respondents and taxed on the Federal Court scale if not agreed. The Federal Magistrates Court when it propounds its Rules will include within those Rules simplified procedures in relation to costs. This will include lump sum costs based upon events. Those Rules are not yet promulgated and should have no bearing on any taxation but if the parties wish the Court to make it own binding assessment of costs the Court would be pleased to do so provided it is so informed within seven days.
# Shiels
James \[2000\] FMCA 2