Pursuant to section 136 of the Equal Opportunity Act 1995 and section 109 of the Victorian Civil and Administrative Tribunal Act 1998 this Tribunal orders-

1. That, the claim of sexual harassment having been found proven, the Respondent must pay to the Complainant $8,000.00 to compensate the Complainant for the lost, damage and injury found by the Tribunal to have been suffered by the Complainant in consequence of that sexual harassment. That compensation is by way of general damages for embarrassment, loss of self esteem, stress and the aggravation of previous medical conditions.

2. The amount mentioned in Paragraph 1 must be paid on or before 5 April 2005.

3. On or before 5 April 2005 the Respondent must provide to the Complainant a written apology for the conduct which this Tribunal has found breached the Equal Opportunity Act 1995. That apology must be in a manner and form agreed between the parties, or in default of agreement, determined by the Tribunal on Application. The parties may by agreement vary the date by which the apology must be provided. The Tribunal may on application, vary the date by which the apology must be provided.

4. In all other respects, the Complaint having been found not proven, the Complaint is dismissed.

5. The parties costs are reserved. The parties have liberty to apply for those costs on reasonable notice to the Tribunal and each other.

(1) I am now in a position to hand down this decision. My orders will be that the complaint is found proved in part and that to redress the loss which I found to have arisen I award $8000 by way of compensation for embarrassment, humiliation and stress. I also order the respondent to provide to the complainant a written apology in a form and at a time to be agreed between the parties and failing agreement to be determined by the Tribunal. I now give my reasons.

(2)

I first deal with the history of the proceeding. On 20 April 2004 Ms Styles lodged with the Equal Opportunity Commission ("the Commission"), a complaint under the Equal Opportunity Act 1995 ("the Equal Opportunity Act"). The complaint claims according to the Commission itself and the particulars of complaint and submissions that the respondent, which I call ("the company"), discriminated against Ms Styles on the basis of her sex and sexually harassed her. Conciliation was attempted by the Commission and that was unsuccessful.

(3)

On 16 September 2004 under s.117 of the Equal Opportunity Act and at Ms Styles request, the Commission referred the complaint to this Tribunal.

(4)

Attempts to resolve this complaint through mediation have been unsuccessful. The Tribunal then made directions designed to prepare the complaint for hearing. Particulars of Complaint, Particular of Defence and witness statements have been filed and served. The hearing commenced on 1 February 2005 and in aggregate lasted some three days.

(5)

In brief Ms Styles claims that two of the company's employees sexually harassed her and that Mr Howe, the company's managing director terminated her employment because she was a woman. She seeks compensation for loss of wages and by way of general damages for humiliation, embarrassment and stress and an apology, costs and any other order which the Tribunal thinks fit. It is now clear from closing submissions that she also seeks interest.

(6)

The respondent denies the claim. It admits some of the facts alleged by the complainant but denies any of those facts constituted sexual harassment. It denies the discrimination which is claimed. It denies therefore that Ms Styles was dismissed because she was a woman. It says that she was retrenched solely because of the company's poor financial position and it also denies the loss that is alleged. It says that it took reasonable precautions to prevent any breach of the Act occurring.

(7)

I first deal with the law in general terms. I then consider the evidence and make findings. Next I consider the key issues in the case of the parties' submissions. Finally, I consider what the remedy should be. I first deal with the law in general terms.

(8)

Ms Styles claims that her employer, the company, discriminated against her on the basis of her sex by terminating her employment in breach of the Equal Opportunity Act. Section 14 among other things prohibits an employer from discriminating against an employee by dismissing the employee or otherwise terminating his or her employment (See s.14(b)).

(9)

The effect of s.7 is that discrimination includes direct and indirect discrimination. It is clear from the particulars of complaint and submissions that direct discrimination is claimed here. The effect of s.8 is that one person directly discriminates against another on the basis of an attribute, if the first person treats the other less favourably than the person treats or would treat a person without that attribute or with a different attribute, in the same or similar circumstances.

(10)

It is clear from s.8(2) and 10 that the attribute must be a substantial reason for the treatment although it need not be the sole or dominant reason for the treatment. It is also clear that a person can directly discriminate even if he or she is unaware of the discrimination or did not consider the treatment less favourable and that motive is irrelevant.

(11)

Under s.6, sex is listed as one of the attributes on the basis of which discrimination is prohibited. To apply these provisions to this case Ms Styles must prove that the company or its agent or employee terminated her employment substantially because she is a woman and that in similar circumstances it would not have terminated the employment of a man.

(12)

Ms Styles also claims sexual harassment in breach of the Equal Opportunity Act. Section 86(2)(a) provides that

(a) another person employed by his or her employer;

(13)

Section 85 defines sexual harassment. The section relevantly provides-

"(1) For the purpose of this Act, a person sexually harasses another person if he or she"

"(b) engages in any other unwelcome conduct of a sexual nature in relation-

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

(2) In sub-section (1) "conduct of a sexual nature" includes-"

"(b) making, orally or in writing, any remark or statement with sexual connotations to a person or about a person in his or her presence;

(c) making any gesture, action or comment of a sexual nature in a person's presence."

(14)

The test in this section is both subjective and objective. The conduct must be, and be seen to be, unwelcome to the recipient. A comment would not be unwelcome if the recipient by conduct or comment condones it. For example, by replying with comments of a similar nature or by otherwise showing in actions or words that the conduct is found to be amusing.

(15)

The fact that a recipient of a comment or a gesture is silent does not automatically mean that the comment is welcome. Again, the fact that the maker of the comment or gesture has not been told in advance by the potential recipient or someone else that the comment or gesture would be unwelcome to the potential recipient, does not automatically make the comment welcome.

(16)

The maker of the comment might beforehand know or suspect that the recipient would find the comment unwelcome. Whether or not a comment is welcome must be determined having regard to all the circumstances. The test of whether the comment could reasonably be anticipated to offend, humiliate or intimidate is not to be judged from the subjective point of view of either the actor or the recipient. For this reason I disagree with the respondent's submission that I must ask whether a person of the same age and background of Mr Ujvari, one of the people alleged to have made a number of comments in questions, would have anticipated that his comments would offend, humiliate or intimidate Ms Styles. The matter is to be judged from the stand point of a reasonable person with knowledge of all the circumstances and this is, in my view, consistent with the objects of the Act.

(17)

The word "presence" in section 85(2) should, in my view, have a broad meaning. It should include not only physical proximity but also within the sight or earshot of a person. Section 85(2)(b) covers statements made by or about a person in his or her presence. Section 85(2)(c), in my view, covers acts, gestures or comments made in a person's presence but not necessarily made to or about that person.

(18)

The feature in paragraph (c) is that the comments must be made in the person's presence. It is that feature which makes the comments made in relation to that person for the purposes of section 85(1)(b). If this were not so then s.85.(1)(b) instead required something more, some additional relationship to that person, then section 85(2)(c) would have no effect.

(19)

The effect of section 102 is that if a person in the course of employment or while acting as an agent breaches among other things part 3 or 5 of the Act, that is, the parts prohibiting discrimination in various areas and sexual harassment or engages in conduct that would, if engaged in by the employer or principal, breached any of those provisions both must be taken to have breached the provision and a complaint may be lodged against either or both. In this case Ms Styles has chosen to complain against the company rather than the individuals.

(20)

The effect of section 103 is that an employer or principal is not liable, among other things, for a breach of the prohibitions against discrimination or sexual harassment by an employee or agent if the employer or principal proves, on the balance of probabilities, that the employer or principal took reasonable precautions to prevent the employee or agent contravening the Act.

(21)

I now come to the evidence and my findings. I first make some general comments.

(22)

First, in cases under the Equal Opportunity Act the complainant must prove his or her case on the balance of probabilities where the claim is sexual harassment and having regard to the grave consequences which a finding on sexual harassment might have to the reputation, relationships, career and community standard of the harasser. The Tribunal must be particularly careful not to proceed on indefinite or inexact proofs. See Granretossa (1994) EOC 92-635 applying Briginshaw v. Briginshaw (1938) 60 CLR. at p.336. But this does not alter the standard of proof.

(23)

Second, I briefly say what material is before me. Evidence was given in the form of witness statements adopted on oath or affirmation by the witness and by additional oral evidence. Ms Styles herself gave evidence together with some other witnesses. Mr Howe, for the company. Mr Ujvari and a number of other employees. I mention in more detail later, the medical evidence.

(24)

Third, I was asked by Ms Styles' counsel to admit into evidence two statutory declarations given during the processing of the complaint through the Commission but not during conciliation. The maker of one of these statutory declarations, Rory Moore, was summoned by the Tribunal at the request of the complainant to attend as a witness but did not answer the summons. The Tribunal constituted by one of our vice presidents issued a bench warrant for his arrest for the purposes of bringing him before the Tribunal. He could not be found then and has not been found now.

(25)

The other maker of a statutory declaration, Paul Collins, was the subject of a summons issued by the Tribunal at the complainant's request. The summons could not be served on him because he could not be found and still has not been found.

(26)

Those declarations contain material highly relevant to the case and in dispute between the parties. The company concedes that the signatures on the declarations are the signatures of the persons who purport to be the declarants.

(27)

Section 97 of Victorian Civil and Administrative Tribunal Act, ("the VCAT Act"), obliges the Tribunal to act fairly and on the substantial merits of the case. Section 102 requires the Tribunal to give to the parties a reasonable opportunity to call witnesses and to cross-examine witnesses.

(28)

Section 98 of the VCAT Act provides that the Tribunal is not bound by the rules of evidence although it is bound by the rules of natural justice and may inform itself as it thinks fit. The Tribunal, however, can determine that it is bound by the rules of evidence. But to say that the Tribunal considered itself not bound by the rules of evidence does not mean that it cannot use those rules as a guide. Indeed, it frequently does so.

(29)

Section 55 of the Evidence Act 1958 would permit the Tribunal to admit a document in relation to an issue where oral evidence of that issue would be admissible and where, among other things, the maker of the document has personal knowledge of the matter. One of the circumstances in which such evidence is admissible is where the person who made the document cannot, with reasonable diligence, be found. But the section is a discretion to the court and here the Tribunal, to refuse to admit such a document. We are satisfied that this would be inexpedient in the interests of justice.

(30)

In this case the respondent opposes the admission of these declarations. I am satisfied that they should not be admitted. The documents have not been the subject of cross-examination. The Tribunal has had no opportunity to judge the demeanour of the makers of the documents or to ask them questions. There are other witnesses who did appear before the Tribunal and who were cross-examined who have given evidence about these issues.

(31)

Taking into account the statutory provisions I have mentioned earlier it is not, in my view, consistent with fairness or with the interest of justice to admit these declarations.

(32)

Fourth, a number of witnesses gave evidence, particularly witnesses for the company gave evidence about things they said that they had heard from others where they had not themselves seen or heard those things occur. I prefer the evidence of those witnesses who themselves saw or heard what they relate rather than the more indirect evidence.

(33)

Fifth where there is conflict between the evidence of Ms Styles and Mr Howe, the managing director of the company, I prefer Ms Styles evidence. Ms Styles evidence was given in a direct and, in my view, candid and unhesitating manner. Mr Howe appeared to me at times reluctant to give direct answers to questions. Mr Howe's evidence was in one important respect inconsistent with that of his witness statement. In his oral evidence he agreed that on 11 November 2003 Ms Styles had complained to him that she felt unsafe at work in the presence of another employee, Nathan Ujvari, when Mr Howe was to be absent. Mr Howe denied this in his witness statement.

(34)

Again, some of Mr Howe's oral evidence was, in my view, implausible. He said that in the last week in October 2003 he had decided to retrench Ms Styles. Later in his evidence he said that in the same week when Ms Styles told him that she wanted to leave the work place he begged her to stay.

(35)

I accept that there is some confusion about dates in the witness statement of Ms Styles but in my view she clarified these sufficiently in her oral evidence. Ms Styles diary was admitted into evidence by consent. It is submitted from both parties that I should take it into account for various different purposes in considering other evidence.

(36)

I have given much greater weight to the direct evidence of the witnesses who gave evidence in this proceeding and in particular to Ms Styles' evidence than I have to her diary. She said in evidence, and I accept, that she did not include everything that happened to her in her diary. Neither the Tribunal nor the parties have asked her questions about the diary.

(37)

In summary then, I consider Ms Styles a witness of truth. I have said that I preferred her evidence to Mr Howe's evidence in certain respects and where there was conflict between their evidence. I do not consider Mr Howe to be a wholly unreliable witness and as will appear I have, on various points, accepted his evidence.

(38)

Sixth, I deal with the medical evidence when I consider remedy. I now come to my findings.

(39)

The company owns and operates a butcher's shop in Elsternwick. The shop trades under the name Ben Howe Butchers. Ben Howe is a director of the company and manages the business. The business was originally operated by his father and he has worked in it since he was a young man.

(40)

Ms Styles began to work for the company on 17 December 2002 as a counter or sales person on a part time basis. I accept her evidence that she was happy in the workplace until a new employee, Mr Ujvari, started work at the butcher's in August 2003.

(41)

I now come to the incidents which are the subject of the claim. I also deal with what was done about those alleged incidents.

(42)

Ms Styles says in her witness statement that Mr Ujvari began making sexist comments almost as soon as he commenced work in August or September 2003 and that she made what she calls in her evidence a minor complaint about these to Mr Howe on 10 October 2003.

(43)

There is no evidence of the exact nature of these comments or of the complaint. Mr Howe denies that the complaint occurred. In my view there is insufficient evidence for me to find that these comments or the complaint occurred.

(44)

It is not disputed that on 15 October 2003 Mr Ujvari said to a male workmate, "It's such a beautiful day. I'd really like to be in a spa with a beer in one hand and a cunt in the other". The only part of this statement which is in dispute is that Ms Styles says that the word "beer" was used and Mr Ujvari says that the word "bourbon" was used.

(45)

Mr Lambert who worked for the butchery as a manager although without that official title gave evidence that the word "bourbon" was used. I considered him a truthful witness and accept that this was the word used by Mr Ujvari.

(46)

Ms Styles says that she was present in the same serving area as Mr Ujvari when these words were spoken. Mr Ujvari denies this. Mr Lambert, whose evidence on this point I have said I consider reliable, says that he did not see Ms Styles in the serving area when the words were spoken but that immediately afterwards he reprimanded Mr Ujvari and then looked up and saw Ms Styles come in from the corridor where the freezers are located. It is not disputed that Ms Styles could have heard the comment from there.

(47)

I accept that while Ms Styles was not in the actual serving area with Mr Ujvari when the comments were made she was close enough to have heard it and did so. It is not disputed that Mr Lambert raised Mr Ujvari's comment with Mr Howe immediately Mr Howe returned from lunch and spoke to Mr Howe again about the comment about 6 p.m. on the same working day. I accept Ms Styles evidence that she also complained to Mr Howe about the comment at about lunchtime that day. She also says that she complained again to him at the end of the working day. I accept this.

(48)

Mr Howe denies that these complaints were made but as I said earlier where the evidence is in conflict I prefer Ms Styles evidence.

(49)

That evening Mr Howe phoned Ms Styles at home and told her that he would speak to Mr Ujvari and give him a verbal warning that if the behaviour recurred he would be given a written warning and that if it again recurred he would be fired. Ms Styles told him that she did not want Mr Ujvari to be given a warning but that Mr Howe should tell Mr Ujvari to tone it down. Ms Styles says and Mr Howe denies that Mr Howe then said that she could not tell him how to run his business. That she must watch her own behaviour or Mr Ujvari might complain about her and that everyone complained about everyone else he might as well close up shop.

(50)

I find that Ms Styles found Mr Ujvari's comment unwelcome and offensive and that a reasonable person would have anticipated that it would offend any woman who heard it. I am satisfied that the comment was of a sexual nature.

(51)

I accept Mr Howe's evidence that on 16 October 2003 he gave a verbal warning to Mr Ujvari in relation to the conduct I have just described, made him read the company's sexual harassment policy and told him that if the conduct recurred he would be fired. Although Ms Styles' evidence was that Mr Ujvari told her that Mr Howe had only told him to tone down his behaviour I accept that this in fact was not so. Mr Howe had told him much more than that.

(52)

On 17 October 2003 I accept that Mr Ujvari apologised to Ms Styles for his comment on 15 October 2003. On the same date, 17 October 2003, Mr Ujvari said in Ms Styles presence that he wanted to open his own brothel and call it Heaven on Earth. On that day and from then on until Ms Styles' employment ended on 14 November 2003 on a regular basis Mr Ujvari made comments on women passing the butcher's shop. If he liked the look of one of the women he said, "They could be one of my bitches". If he did not he would say, "Woof".

(53)

On 17 October 2003 and from then on until the end of Ms Styles' employment on a regular basis Mr Ujvari and Rory also called Kiwi Shannon, another employee in the butcher's shop, in front of Ms Styles remarked on cuts of meat, overemphasising the words breasts, racks and legs and then apologising sarcastically to Ms Styles after the comments were made and saying, "Sorry, cat. I didn't mean to offend you".

(54)

From 21 October 2003, on a regular basis and in front of Ms Styles, Mr Shannon and Mr Ujvari walked around the shop with pieces of eye fillet stuck down their trousers or a pig's tail hanging out of their flies. These were normally concealed by their butcher's aprons but they would often pull the aprons aside and show them. Except for one occasion no customer was in the shop when this occurred.

(55)

Ms Styles says that when she raised with them the company's harassment policy they laughed at her. All this is evidence given by Ms Styles and I accept it.

(56)

Ms Styles says that she complained regularly about this behaviour to Mr Howe who simply said that he had neither heard nor seen anything and did nothing to address her complaints. Mr Howe denies the making of the complaints but for the reasons I have given earlier I prefer Ms Styles evidence.

(57)

With two exceptions Mr Ujvari denies that these incidents occurred. The exceptions are the comment of

15 October 2003 and the comment about the opening of a brothel. He says that the comment about the opening of a brothel was made a few weeks earlier but he also said, directly in evidence, that he was not good with dates. He says that if he mentioned breasts, racks or legs, it was only in connection with serving meat to customers. I find Mr Ujvari a less convincing witness than Ms Styles and I prefer her evidence.

(58)

I find that all this behaviour considered as a whole was sexual in nature, was unwelcome to Ms Styles and was offensive to her and that a person, a reasonable person would have anticipated that it would offend. I find that this conduct and the conduct of 15 October 2003 was conduct in relation to Ms Styles, because it occurred in her presence, it related to women, and it was accompanied by teasing or sarcasm directed at her, or in the case of the comment of 15 October 2003 without regard to whether she would be offended or not.

(59)

I accept Ms Styles evidence that at some time in the first week in November 2003 she told Mr Howe she wished to resign. Mr Howe begged her not to and said that she was good for business. She agreed to stay. Mr Howe says that this conversation occurred in the last week in October. For reasons I have explained earlier, I prefer Ms Styles' evidence.

(60)

On 11 November 2003 an argument took place between Mr Ujvari and Ms Styles. Ms Styles and Mr Ujvari give different versions of what happened. Ms Styles says that Mr Ujvari yelled at her and after she had accidentally slipped and bumped him while he was bending down to a box of chicken pieces, he threatened to get one of his bitches to sort her out and to kick her to the ground and kick her in the temple until it bled.

(61)

Mr Ujvari's version of these events is very different. He says that Ms Styles deliberately kicked him in the head while he was bending down to chicken pieces and he yelled at her.

(62)

It is unnecessary for me to make findings about which of these versions is true. I find that there was an altercation between Ms Styles and Mr Ujvari involving angry words and physical contact. I accept Mr Howe's evidence that after the altercation he told Mr Ujvari to take the next day off and that day, 12 November 2003, Mr Howe and Mark Lambert were to be absent and Mr Howe did not want Ms Styles and Mr Ujvari to be together in the workplace without a manager present.

(63)

After work on that day, that is on the 11 November 2003, Ms Styles told Mr Howe that she would feel unsafe the next day if she worked with Mr Ujvari without Mr Howe present and Mr Howe explained to her that he had already told Mr Ujvari to take the day off. Ms Styles says and Mr Howe denies that Mr Howe also said, "You are always having trouble with men, like the time you thought that Paul had touched you" and then asked her why she had been sacked from her last job. For reasons given earlier, I accept Ms Styles' evidence. The comment about Paul relates to an earlier incident which is not relevant to this claim.

(64)

I now come to the retrenchment. On 12 November 2003 Mr Howe was absent from work, because his presence was required at the Equal Opportunity Commission in relation to a complaint made by a former employee. Mr Howe says that on that date he wrote a reference for Ms Styles. That reference is in evidence. In it Mr Howe states how valuable an employee Ms Styles is. It sets out her good qualities such as reliability and punctuality and how she is a favourite with customers and says that he is forced to make her position redundant. Mr Howe gave evidence that he had decided to make Ms Styles redundant in the last week in October. He did not explain why, according to his evidence, he begged her to stay also in that week.

(65)

I do not accept that he made his decision at that time. I find that he made the decision on or about the date of the reference. It is not in dispute that on 14 November 2003 Mr Howe terminated Ms Styles' employment, telling her that she was being retrenched, because the business was not doing well. Mr Howe's evidence to this Tribunal was that the sole reason why her employment was terminated was because the business was not doing well.

(66)

On the whole of the evidence I am not satisfied that this was the only substantial reason for the termination. First, it is implausible that in the same week, on Mr Howe's evidence, you would both decide to retrench Ms Styles and then beg her not to resign. Second, the evidence about what Mr Howe knew at the relevant time, which I found to be 12 November 2003, about the financial state of his business, is confused and does not point to a clear decision for financial reasons, alone, to terminate Ms Styles' employment. There is in evidence a report from Mr Howe's accountant dated December 2004 which indicates that, for the financial year ended 30 June 2004, there was a decrease of one per cent in the gross profit of the business. Its sales dropped by some $520,000 and it suffered a trading loss of $9733.

(67)

I do not take account of this evidence because, clearly, it was not part of what Mr Howe knew in early November 2003. Mr Howe said that the business only sent information to its accountant after the end of each financial year. I am satisfied that in early November 2003 Mr Howe was aware of what was in the monthly bank statements for the business account, although the statements for the period ended 10 November 2003 would have arrived by post after the time when the decision to terminate Ms Styles' employment was made. I accept that Mr Howe accessed bank statements by internet at least three times a week.

(68)

The statements for the period 10 September 2003 to

10 December 2003 are before the Tribunal. Those show balances with large fluctuations. This reflects fluctuations in the number and amounts of deposits and withdrawals over the period, so for example, the opening balance for the period commencing 10 September 2003 was, taking it to the nearest dollar, $27,430 and the closing balance at the end of the period on 10 October 2003 was $46,889. These reflect greater total deposits than withdrawals. The deposits totalled more than $155,000 and the withdrawals, more than $146,000 respectively.

(69)

The amount of fluctuation of the running balance is indicated by the lowest balance in that period, being $2,859 and the highest balance, which is the closing balance. Similar comments can be made about the other statements. In the statement for the period 10 October 2003 through 10 November 2003, the opening balance was $46,889 and the closing balance $38,424. The highest balance during the period was $58,351 and the lowest, $7,671.

(70)

The balances for the period 10 November 2003 to 10 December 2003 are much lower, but Mr Howe explained in evidence that this was due to unusually high withdrawals because of the need to buy extra stock to cover the Christmas period.

(71)

I am satisfied that the bank statements before me, although they show fluctuating balances, deposits and withdrawals, do not show a substantial downturn in the profitability of the business when the positions, as indicated in the bank statements at the beginning and the end of the period, are compared.

(72)

Mr Howe said in evidence that he believed his profit margin was less because the wholesale price of meat had risen considerably. He said that in June 2003 he had closed that part of his business which supplied meat to restaurants and had retrenched the three staff who worked in that part of the business. Mr Howe said that at present he employed eight staff in the remaining retail part of the business, six full time and two casuals.

(73)

He said that Ms Styles and another employee were retrenched in October and November 2003 and then one employee was replaced and then that Mr Ujvari had left employment. It was Mr Ujvari's evidence that he left in May 2004. As I have said, the relevant time for the purposes of the decision to retrench is early November 2003.

(74)

Ms Styles gave uncontested evidence that it was her understanding that some of Mr Howe's family, who usually worked at the butcher's during the busy Christmas period, were unable to do so for the Christmas period 2003. She gave uncontested evidence that she and other staff worked overtime during the whole period of her employment at the butcher's.

(75)

On Mr Howe's own evidence and taking all that evidence into account, I am not satisfied that the financial position of the retail part of his business in early November 2003 was clearly believed by him to be so bad as to justify solely the retrenchment of Ms Styles. An employee had left and another one was about to leave. I find Mr Howe's evidence on these matters unconvincing.

(76)

I am satisfied that, although a perception of his of lesser profitability of the business might have been one reason for his retrenching Ms Styles, it was not the only substantial reason. There is no direct evidence by Mr Howe of any other reason for her retrenchment. This being so, does the evidence justify an inference that there were other reasons? In my view it does. There is no dispute that on 12 November 2003 Mr Howe was absent from the butcher's. He attended the Equal Opportunity Commission in relation to a complaint made by one of his former employees. I have found that on many occasions, almost daily, Ms Styles had been complaining about what she said was sexist comments by two of his employees.

(77)

The decision to terminate her employment was made on the day Mr Howe visited the Equal Opportunity Commission. I infer that he was concerned that Ms Styles might also lodge a complaint against him, and this was another substantial reason for her termination.

(78)

On 11 November 2003 an altercation had occurred between Mr Ujvari and Ms Styles. It is clear from the evidence that Mr Howe was concerned that they should not work together while managers were absent. I infer that difficulties in the workplace involving this altercation were also in his mind when he took the decision to terminate Ms Styles' employment.

(79)

While I am satisfied that there were three substantial reasons for the termination of her employment by Mr Howe, I am not satisfied that Mr Howe terminated her employment because she was a woman. I am not satisfied that in similar circumstances he would have treated a man differently. The circumstances for the purpose of this comparison are a man who, on the day before the retrenchment decision was made, had an altercation with another employee and who had complained regularly about sexist comments made by employees.

(80)

I now come to the harassment policy and related issues. On 19 May 2003 Mr Howe gave to each employee in the butcher shop in an envelope a document called "Harassment Policy". He told each employee to read it and some two days later distributed a form for each employee to sign indicating that the employee had read and understood the policy. He told the employees to see him if they had any questions. I accept Ms Styles' evidence that because she was not working on the day the envelopes were given to other employees, she received her envelope on her next working day and then signed the form.

(81)

A copy of the Harassment Policy was also placed on the wall of the corridor where the freezers were located, which led from the front or serving area of the shop to the preparation area and tea room behind. There is some suggestion in Ms Styles' evidence that this was not a prominent enough position, but I am satisfied that it was. It was placed where all staff could see it, as they went many times daily through that corridor.

(82)

I accept the evidence of Mr Ujvari and Mark Lambert that when Mr Ujvari started working at the butcher's in August 2003, Mr Lambert showed him the Harassment Policy on the corridor wall, asked him to read it and then asked him to explain his understanding of what he had read. I accept Mr Ujvari's evidence that he understood the policy to mean that harassment was something that made other people feel uncomfortable and that there could be verbal or physical actions which were not tolerated in the workplace. I accept that on 16 October 2003 when Mr Howe warned Mr Ujvari for making inappropriate comments and said he would be fired if they recurred. Mr Howe made Mr Ujvari again read the Harassment Policy and sign a document indicating that he had done so.

(83)

In oral evidence Mr Howe said that he understood an Equal Opportunity Employer to be one who gave all a chance to work, whatever their disposition, race or nationality. He went on to explain that he had employed former alcoholics, drug addicts, a person with low vision, Ms Styles, whom he said was a person with epilepsy. He also mentioned that he had employed a number of women at various times. His evidence was that he understood harassment to mean doing something which makes another person uncomfortable or offended, whether or not the person who does the thing considers it offensive.

(84)

I accept Mr Howe's evidence that the Harassment Policy was prepared, at least in part, because one of his former employees had complained to the Equal Opportunity Commission, was the first time that the business had prepared such a policy. Mr Howe said, and I accept, that the policy had been written by his wife. There is some suggestion in his evidence that a solicitor, a friend, may have played some part in the preparation of the policy, but the extent of this is not clear. On Mr Howe's evidence I am satisfied that this wife was the main author.

(85)

The Harassment Policy itself is in evidence. It first makes it clear that harassment is contrary to Ben Howe's business philosophies and values, will not be tolerated, is unlawful under discrimination legislation, that employees have the right to work in a harassment free environment and a responsibility to prevent harassment and that an employee will not be victimised if he or she complains of harassment. The policy states that an employee found to have engaged in harassing behaviour will be given a first and final written warning and if the behaviour recurs, will be dismissed. It makes it clear that Ben Howe Butchers regards harassment very seriously. It explains that harassment is, and I quote, "unwelcome, uninvited behaviour which can make a person feel offended, humiliated or intimidated". It says that, again, that it is conduct, and again I quote, "with the purpose or effect of creating an intimidating, hostile or uncomfortable or offensive work environment".

(86)

It deals in general terms with harassment. It does not give examples or explain exactly what kinds of harassment will breach equal opportunity or anti-discrimination legislation. It does not make it clear that harassment could be constituted by word or actions. It does not explain at all what discrimination is prohibited by anti-discrimination legislation, how that legislation defines or for that matter, sexual harassment, and what are the attributes on which discrimination is prohibited under those pieces of legislation?

(87)

It states that if there is a question about the policy a person can discuss that with Ben Howe. It does not set out any contact person to whom one might go if one feels one has been harassed. Nor does it set out clearly any complaint handling process. It does not give information about external complaint handling mechanisms.

(88)

I find the policy inadequate as a policy for preventing sexual harassment. It is so general in its terms that it could very easily have been interpreted to cover only workplace bullying or other workplace disputes. It does not contain enough detail for an employee to know exactly what he or she ought or ought not to do or say and it does not contain enough detail for a victim of harassment to know how to complain.

(89)

I accept Mr Howe's evidence that he had no collective meeting of employees to discuss either the formulation or the implementation or the meaning of the Harassment Policy. His evidence was that his business was a hands-on one to one environment where meetings of this kind were not held. I have found that while Mr Howe warned Mr Ujvari after his comment of 15 October 2003, he did nothing about Ms Styles' many other complaints. I have found that Mr Ujvari continued the conduct of a sexual nature in relation to Ms Styles after being warned and despite having read the Harassment Policy.

(90)

The Harassment Policy was in its context inadequate and was not implemented effectively. I found Mr Howe's understanding of what constitutes sexual harassment in breach of the Equal Opportunity Act was at the material time, which is October and November 2003, very limited. His evidence was in fact that he was to undertake his first training with the Equal Opportunity Commission in March 2005. I find that Mr Howe did not take reasonable precautions to prevent sexual harassment in breach of the Equal Opportunity Act.

(91)

I now come to the key issues. Did Mr Ujvari and Rory Shannon sexually harass Ms Styles in breach of section 86 of the Equal Opportunity Act? I find that they did. Was the termination of Ms Styles' employment direct discrimination on the basis of her sex in breach of section 14 of the Equal Opportunity Act? I find that it was not.

(92)

First, Ms Styles has not proved that the fact that she was a woman was the substantial reason for that termination.

(93)

Second, she has not proved that in similar circumstances Mr Howe would have treated a man differently. Unless section 103 of the Equal Opportunity Act applies, the company will be liable for the sexual harassment which, as I have found, breached the act, because of the operation of sections 102.

(94)

I have found that Mr Howe did not take reasonable precautions to prevent sexual harassment. The defence to vicarious liability provided by section 103 has not been made out. The company is therefore liable for the breach.

(95)

I now come to remedy. Section 136 of the Equal Opportunity Act permits the Tribunal, if it finds the complaint or any part of it proven to make, among other things, an order to pay to the complainant an amount to compensate the complainant for loss, damage or injury suffered in consequence of the contravention and to order the respondent to do anything specified in the order with a view to addressing any loss, damage or injury suffered by the complainant as a result of the contravention (See s.136(a)(ii) and (iii)).

(96)

Ms Styles claims that she has suffered financial loss, embarrassment, loss of self esteem, stress and the aggravation of previous conditions of anxiety, depression and epilepsy. She asks for compensation by way of loss of wages and general damages and interest. She asks for an apology and other orders which the Tribunal deems fit. There are no other orders asked for in final submissions.

(97)

I first deal with the evidence as to loss, damage and injury and make my findings. I base my findings on Ms Styles' own evidence and on the evidence of Professor Cook, for many years Ms Styles' treating neurologist, Dr Farnbach for many years, Ms Styles' treating psychiatrist and Mr Dungey, a clinical psychologist who at the request of the respondent examined Ms Styles in January 2005.

(98)

It is of benefit for the respondent that the evidence of Dr Farnbach is insufficiently documented and is based mainly on conversations with Ms Styles. The evidence of the psychologist, Mr Dungey, it is submitted, was more reliable. I do not agree. I found Dr Farnbach a straightforward and impartial witness who clearly gave evidence from carefully taken contemporary notes. I consider both he and Mr Dungey to be reliable witnesses, but where there is difference in opinion between them, I prefer Dr Farnbach's evidence. Dr Farnbach has been Ms Styles' treating psychiatrist for a very lengthy period.

(99)

My findings are these: Ms Styles was sexually abused by her father and beaten by her mother and suffered extensive emotional abuse from both her parents for some seven years in early youth. This has left her with chronic, fluctuating symptomology involving anxiety, depression, chronic pain disorder, panic disorder and significant emotional problems and a predisposition to react strongly in situations of perceived sexual harassment.

(100)

I pause here to say that in my view, in cases under the Equal Opportunity Act, one must take the victim as one finds the victim. Loss is still compensable even though the victim may, because of some earlier condition or event, be more than ordinarily sensitive to the particular conduct. See Hall v. Shybann (1989) EOC 92-50 and Capita Casa v. Herald & Weekly Times, a decision of VCAT reported in 99, Equal Opportunity Cases, 92-969.

(101)

In 1996 Ms Styles began to have epileptic seizures and was unable to work for two years because of them. Since at least 1998 she has been taking two kinds of anticonvulsant medication and two kinds of antidepressant medication daily and medication for chronic pain as the occasion requires. Her mental state fluctuates with external circumstances. Stress or sleeplessness increases her seizure activity. That activity is largely intractable to medication although medication has been prescribed.

(102)

I accept Dr Farnbach's evidence that the beginning of her employment with Mr Howe was accompanied by an improvement in her mood and she was at that time as stable as she had been for a long time, although not free from her underlying symptoms. Ms Styles also has some stress arising from recurring relationship problems between her and her long term partner. Dr Farnbach in his evidence described this relationship as "stablely unstable".

(103)

From October 2003 Ms Styles began to experience more panic attacks, anxiety and sleep disturbance. From then the frequency of her seizures increased from approximately one every one to two months, to almost nightly and she commenced to have seizures during the day. She had a seizure on the day of her retrenchment, 14 November 2003.

(104)

In early October 2003, Dr Farnbach doubled her epilepsy medication and effectively doubled her antidepressant medication. She still remains on increased dosages of this medication. In 2004 she unsuccessfully returned to university study. The stress of this attempt was also a contributor to her symptoms.

(105)

The medical evidence is that the latter part of Ms Styles' employment with Mr Howe, that is, that I have found to be the part in which the sexual harassment occurred and also her retrenchment, was a significant contributing factor to the worsening of her medical conditions. Mr Dungey's opinion is that the retrenchment and the sexual harassment were both main contributing factors. Dr Farnbach's evidence is that the main contributing factor was the sexual harassment. I prefer Dr Farnbach's evidence for the reasons I have given. He, as I have said, is a long standing treating medical practitioner of Ms Styles. He also saw her at a much closer time when the incidents occurred.

(106)

I also accept Dr Farnbach's evidence that the contribution of the employment to Mr Howe to the worsening of her conditions was temporary and had ceased by the end of 2004. This still leaves her with her underlying symptoms from her earlier conditions. The worsening of her conditions between October 2003 and December 2004 was due to what happened in October and November 2003 in her employment with Mr Howe, with the sexual harassment being a main contributing factor and the retrenchment a less important contributing factor. To this was added the stress from the unsuccessful attempt at study in 2004.

(107)

I accept Dr Farnbach's evidence that although it is difficult to quantify how much of the exacerbation of these conditions was due to which of these contributing factors, and to distinguish them from the underlying symptomology. It can be said that her conditions worsened in October 2003 and she has not returned to her pre-October 2003 medical state.

(108)

I accept the medical evidence that at least in 2004, some of the aggravation of her conditions was due to the stress of the complaint process itself. Causation and quantification are always difficult in cases of this kind. I take into account that the loss here is an aggravation of existing conditions where the underlying symptoms still continue, and that employment with Mr Howe contributed to this exacerbation for a limited period and that my task is to determine the part played by the conduct which breached the Equal Opportunity Act, the sexual harassment.

(109)

Given my findings, I consider that $8,000 is an appropriate sum to reflect in monetary terms compensation for the loss in consequence of this breach. I award no compensation for loss of wages either past or future, because I am satisfied that this loss was due to the retrenchment, not the sexual harassment. I have found that the retrenchment did not breach the Equal Opportunity Act.

(110)

The complainant seeks interest on the compensation awarded. For a number of reasons I do not propose to make such an order. First, there is some doubt about the Tribunal's power to make such an award under s.136(a)(iii) of the Equal Opportunity Act. That permits an order for compensation for loss, damage or injury in consequence of the breach. Arguably, interest is to compensate for the loss of use of money to which one is found to have been entitled. Where the money was not in the person's hand at the time when the entitlement arose, rather than to compensate in a way that directly is related to the loss, damage or injury in consequence of the breach. However, it may be possible to say that award of interest would constitute compensation and it may be that it is possible to follow that the case of A. Reid v. Department of Education and Training, (2004) NSWCA 404.

(111)

It may also be that an award of interest could be supported by the Tribunal's power to make orders to give effect to and make orders consequential on the primary orders which it makes. See section.130 of the VCAT Act. I bear in mind that neither section130 nor the Equal Opportunity Act itself contain an expressed power to award interest or interest in the nature of damages, as is the case with section 60 of the Supreme Court Act (1958).

(112)

Second, even if there is a power to award interest, interest is ordinarily awarded where damages are compensation for a definite sum to which the person would have been entitled, but for the breach and but for the unlawful act, rather than where there is an award of general damages.

(113)

Third, interest has only been raised in closing submissions in this case. It was not raised in the particulars of complaint or earlier at the hearing. This is a matter which has been taken into account in some anti-discrimination cases. See Laver v. Commissioner of New South Wales Fire Brigade, No. 2 (2003), EOC, 93-280. The Supreme Court's practice in this regard should also be taken into account. On this basis, it seems to me that in this case an award of interest is not appropriate.

(114)

Part of Ms Styles' loss results from a loss of confidence, a loss of self esteem, which in my view can be attributed to the sexual harassment in breach of the act. For this and to redress this, an apology is appropriate. I have provided for an apology in my orders. I have not provided for the manner and form of that apology. If the parties cannot agree on the manner and form of the apology, I will determine these on application.

(115)

That concludes my reasons for decision.