DAMAGES - where lack of medical evidence about ability to return to work damages for unlawful dismissal not extended beyond six months

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

Watkins v Fryer & Anor [1994] HREOCA 33; (1995) EOC 92-667 followed

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

Cachia v Hanes [1994] HCA 14; (1994) 120 ALR 385 referred to

(1) Proceedings against DAPHNE GERALDINE KIRKLAND dismissed with no order as to costs.

(2) Respondent RAYMOND KIRKLAND to pay the applicant the sum of $24,200.00 by way of damages for breach of ss 5, 14(2)(c), 28A, 28B(1) of the Sex Discrimination Act 1984 (Cth).

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

1. The applicant, Ms Wattle, was employed for approximately nine weeks from 11 November 1999 until 9 February 2000 as a taxi driver with Kirk's Cabs of Mudgee. The applicant alleges that this business is owned by the two named respondents Mr and Mrs Kirkland. Mr and Mrs Kirkland allege that the business is owned by a company Kirks Enterprises Pty Limited of which they are both directors.

2. The applicant alleges that during the period of her employment she was the subject of unwanted activity and remarks both of a sexual nature from Mr Kirkland. The applicant claims the activities constituted sexual harassment in breach of ss 28A and 28B(1)(a) of the Sex Discrimination Act. The applicant also alleges that when she provided the respondent with a medical certificate indicating she required at least two weeks off work for stress which she says resulted from the harassment, she was improperly dismissed by Mrs Kirkland in breach of s 14(2) SDA. The applicant claims damages and lost income calculated at the rate of $350.00 per week for forty weeks, a period during which she says she was required to attend counselling for her condition.

3. The respondents deny the allegations of conduct in breach of the Sex Discrimination Act, they deny that the applicant was wrongfully dismissed and deny that she has any claim for damages or special damage. The respondents allege that the applicant's conduct in making the claim for sexual harassment were instigated in order to punish the respondents for what the applicant saw as a wrongful dismissal. The respondents argued that the dismissal was not unfair in the circumstances of the applicant's employment.

What facts does the applicant rely on to establish her claim?

4. The applicant had filed two affidavits with the court and also filed as an annexure to her application a statement made by her to the Mudgee Police. It was agreed by Mr Williams who appeared on behalf of the respondents and whose assistance and courtesy to the court and the applicant were greatly appreciated, that in lieu of those documents Ms Wattle could give oral evidence.

5. The applicant gave evidence that she commenced work on 27 November 1999. She says she was very nervous in the job. She says that on 29 November the car she was driving had bad brakes and she tipped a car in front of her whilst taking a customer to church. She reported the incident to Mr Kirkland who she says was very nice to her about it. She says he patted her shoulder and her hand but that she didn't think much about this at the time as she had been very upset and thought that Mr Kirkland was merely comforting her.

6. Between 29 November and 1 January 2000 Ms Wattle makes allegations of more touchings of her back and forearms. She says this made her feel uncomfortable when it took place in the office of Kirk's Cabs in Denison Street. She said these incidents might occur whilst she was working on the radio between 4.00 and 5.00p.m. The applicant stated that at about 5.00p.m. Mr Kirkland would come into the office and take the days takings from her which were hanging in a satchel bag. As he did that he would caress her arm or her hand. She says she was too nervous to say anything at the time.

7. The applicant states that the first occasion on which she was seriously concerned by the alleged activities of Mr Kirkland was on 2 January 2000. The applicant stated that by that time she had earned a nickname of "ducklegs" as she had short legs. On the day in question Mr and Mrs Kirkland and their son were in the office when she came in at about 2.00p.m. The applicant stated that they were all talking in the office and young Mr Kirkland complained that she had left the seat in a forward position. The applicant admitted to doing this on a number of occasions. The applicant stated that Mrs Kirkland was sitting on an easy chair, Mr Kirkland was on a swivel chair and she was standing between Mr Kirkland and his son. She said that "Mr Kirkland then grabbed me from behind on my inner thighs, laughed and said, `Oh its those little duck legs'." The applicant moved away. She felt very uncomfortable but she did not complain. She left shortly afterwards.

8. The applicant then deposed to an incident which she alleged took place on 9 January 2000. She believed that this was a Sunday morning and that she had come in after a very late shift which had ended approximately 5.00a.m. She was tired and had a headache. She went into the office with the takings and Mr Kirkland was in there. He was being jovial. She handed in the takings and the slip and said to him "Would you please put it in the book". The applicant says that Mr Kirkland responded "Oh I would love to put it in". As he said those words he looked her up and down and touched her arm. She was very upset at the incident but said nothing and left.

9. On 15 January 2000 which the applicant says was a Saturday she had done a day shift and returned to the office which was shared with Mr and Mrs Kirkland's private residence to cash in at about 5.00p.m. Mrs Kirkland cashed her in but then Mr Kirkland came into the room. She was asked to stay in the house for a drink and a piece of cake as it was Mrs Kirkland's birthday. She agreed to do this because she liked Mrs Kirkland. Mr Kirkland junior was also there. The conversation got around to age and she was asked when her birthday was. She felt the question intrusive and answered to the effect that the date of her birthday was her own concern. Mr Kirkland then said "I can find out from your licence". He reached for her handbag which she had placed in a chair next to her. Before he could get to it Ms Wattle picked it up and cradled it to her waist. She says that Mr Kirkland came up behind her and put his arms around her to reach the handbag but was in fact grabbing at her breast. She claims he touched her left breast and then Mrs Kirkland yelled at Mr Kirkland "Leave her alone, get off Raymond". The applicant says she wanted to run away but because Mrs Kirkland looked so sad she decided to stay and have a quick coca cola and piece of cake. She says that she was handed an alcoholic drink which she did not finish but she ate some cake and then left.

10. On 17 January 2000 she was in the office at a time which she believes was before 9.00a.m. Mr and Mrs Kirkland were both there. She was recalling an incident of the night before when she had received a sizeable tip of $10.00. The applicant says that Mr Kirkland then looked down at her breasts and said "I'd like to give you a tip". The applicant felt very uncomfortable at the way Mr Kirkland had looked at her and then left.

11. From that day on the applicant tried to make sure that she was never at the office at any time when Mr Kirkland was there. She was very upset at these incidents and says that her work began to suffer. She became physically sick and she cried in the cab. She missed bookings and complaints began to come through.

12. On 2 February the applicant was not working. She says that she had received a message to attend Mr Kirkland at his furniture shop. She suspected that a complaint had been made about her. This indeed had occurred, it had something to do with overcharging and the applicant says that she was told to take more care in the future.

13. Mr Kirkland and the applicant then went out and stood around her car and a general conversation commenced. The applicant said to Mr Kirkland "I was tired, I slept in today" to which Mr Kirkland replied "Oh no, I know what you have been doing". The applicant responded "I don't think so, I am a good girl". Mr Kirkland then said "I've heard all about you and what you were like as a little girl". The applicant says that this conversation upset her and she got into her car and left. At this stage she decided that she wanted to talk to someone to see if Mr Kirkland could be stopped from making unwelcome sexual remarks whilst still keeping her job.

14. On 7 February 2000 Ms Wattle said that she had been up all night sick and distraught. She was due to go on day shift but she asked a friend Mr Hallett to call in sick for her. She heard him on the phone and he said "Margaret won't be in today I don't know why, I don't know what is wrong".

15. On the same day the applicant went to see the Chamber Magistrate. He gave her a 1800 number to ring and she rang it. The number was that of the Women's Legal Resource Centre. The Centre gave the applicant some advice and she made an appointment with her local physician. Her physician gave her a medical certificate putting her off work for approximately two weeks. The medical certificate was tendered as Exhibit "A" in the proceedings.

16. At about midday the applicant took the medical certificate to the office. Mrs Kirkland was not in the office. She knocked on the front door and heard Ms Kirkland call her. Ms Kirkland said "Come in". The applicant went in and saw that Mrs Kirkland was in the bedroom and not looking very well. She held up the medical certificate and said to Mrs Kirkland "I have a medical certificate, I am off for a couple of weeks". Mrs Kirkland responded "As far as I am concerned you are off for good. If you have anything to say see Ray at the furniture shop".

17. The applicant claims she was very upset and she left. She had no further contact with Mr or Mrs Kirkland.

18. Some time later the applicant contacted the Human Rights & Equal Opportunity Commission who forwarded her leaflets and an application form. She also went to the Police and made a statement dated 1 March 2000 which is attached to the HREOC Complaint that is itself attached to the application in these proceedings. The applicant made no claim for workers compensation. She claims that she required counselling for a period of approximately ten months and was unable to obtain employment during that time. She was put on anti-depressant medication by Dr Yates.

19. The applicant also tendered in support of her claim a medical certificate from Dr Yates indicating that she presented on 8 February 2000 with acute stress reaction and exacerbation of her chronic asthma and was unfit for work until 25 February. She also tendered a report from Dr Yates of 2 January 2001 and copies of Dr Yates' medical notes which indicated that she had seen the applicant on

8 February 2000 and 16 March 2000 when the applicant complained as follows:

8 FEB. "Accusing employer of sexual harassment. Has been driving taxis for 9 weeks. Claims to have been fondled & inappropriately touched by employer. Vomits in am prior to going to work exacerbation of asthma-? 2o to stress- ?2o to smoking as a result of stress, can't eat not sleeping, cries all time. Is getting legal advice

Has made report to police is waiting to see if they will proceed. has a solicitor. Had to drop partner for work at Kirklands saw ex employer-had acute stress panic attack & nearly hit an oncoming car".

20. The respondents dispute all the allegations of harassment. They deny that they ever took place. In support of their position they called four witnesses who had previously filed affidavits.

21. Mr Barry Mathes is a friend of the Kirkland family and was present at the birthday party on 15 January 2000 along with his wife Shirley. He said that Mr & Mrs Kirkland, their son Les and his wife and children were there. He deposed that Mr Kirkland was sitting around the table and did not leave it save to go to the kitchen. According to his evidence Ms Wattle came straight into the party and later went out with Mrs Kirkland to deal with the takings. He makes no mention of any conversation about birthdays in his affidavit nor does he refer to Mr Kirkland trying to get hold of Ms Wattle's bag. He provides a motive for Ms Wattle's proceedings, claiming he overheard her say to some ladies at the Mudgee Soldiers Club "I am going to get Ray for putting me off and I don't care how I do it".

22. Les Kirkland also gave evidence about the birthday party. He could not recall his father leaving the festivities to have a conversation with the applicant. He did say that there were many people there wandering in and out. He made no reference to the conversation about the applicant's birthday or the handbag. Les Kirkland also deposed that he was present on the 2nd January. He alleges that the applicant asked who had moved the car seat and that he said that he had and offered to fix it but the applicant said she would do it. He says nothing about the 'duck' incident and claims that he was present during the whole time the applicant as on the premises and saw no physical contact between her and his father.

23. Raymond Kirkland in his affidavit denied each of the incidents. His version of events on 2 January was similar to that of his son. He says in relation to the 9 January allegations that he was asleep in bed, although he was also "aware that the applicant had been at the house earlier and had a conversation with my wife".

24. Mr Kirkland's version of events on 15 January differs considerably from that put forward by Mr Mathes and Les Kirkland. He admits to going to the office door whilst the applicant was having a conversation with his wife. He admits to the conversation about the applicant's birthday and to trying to get hold of her bag, which must have been inside the office. He denies the physical contact alleged by the applicant.

25. Mr Kirkland denies the conversation of 16 January. He states there was another driver there at the time, a Mr Nicholson. He did not give evidence. He denies that he saw the applicant on 2 February. He advances as a reason for the termination of Ms Wattle that he had received complaints about her conduct from customers. He makes no mention of advising the applicant of the complaints. In evidence-in-chief he said that the applicant was appointed on a three-month trial basis and she was dismissed because her work was not satisfactory. He referred to one accident which he said was slight in one part of the evidence, but in response to a question from me alleged there were three accidents.

26. Finally, Mrs Kirkland gave evidence. Although her affidavit does not mention the three-month trial, she said that this was a condition of employment in her oral evidence. She gives similar evidence to her husband and son in relation to the alleged incident on 2 January and says there was no physical contact between her husband and the applicant on that day.

27. Mrs Kirkland also put forward as a reason for the applicant's dismissal that she had received complaints about the applicant's driving. I asked Mrs Kirkland whether any warnings had been given to Ms Wattle. She told me that she had a conversation with the applicant in December when the applicant was told there had been complaints about her driving. These matters were not referred to in her affidavit.

28. Mrs Kirkland gave quite detailed evidence in her affidavit concerning what occurred at the birthday party. She confirms the conversation concerning the applicant's birthday. She says that when the applicant put her hand on her bag and said "its private property" Mr Kirkland backed off and went into the lounge room.

29. In her affidavit Mrs Kirkland described the events on 8 February. She says:

"There's a Doctor's certificate. I am off until the end of February."

"Don't worry, you won't be back. If you need any more information go and see Ray".

30. During the course of her evidence Mrs Kirkland suggested that she had said more to the applicant. She suggested that she had said:

"I said don't worry about that, I think we will end it here, it is unsatisfactory".

31. In response to questions from me Mrs Kirkland advised that Kirk's Radio Cab was a business name which was owned by Mr Kirk's Enterprises Pty Limited, a company of which she and her husband were directors.

32. I found that the applicant was employed from approximately 26 November 1999 until 8 February 2000 as a cab driver by Kirk's Radio Cabs which would appear to be the business name operated by Kirk's Enterprises Pty Limited.

33. I have carefully considered all the evidence concerning the alleged sexual harassment of the applicant. The allegations consist of:

a) A general allegation of touching at various times;

b) Allegations of unwelcome remarks on three occasions being 9 January, 17 January and 2 February;

c) The physical contact which is alleged to have occurred on 2 January and 15 January 2000.

34. The only relevant evidence brought on behalf of the applicant is that of the applicant herself whereas the respondents called four witnesses to deny these allegations. It is generally considered (Watkins v Fryer & Anor [1994] HREOCA 33; (1995) EOC 92-667) that allegations of this type should be proved to the Briginshaw standard (Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336) and I have used this in coming to my conclusions.

35. The applicant gave her evidence in a straightforward manner. It is to be remembered that she was conducting her own case and was nervous. It is also clear from the medical records that were tendered that she is, even outside a courtroom, a person of a nervous disposition. She was asked in cross-examination about discrepancies between the statement which she made to the Police and the evidence which she gave in Court. Her response was that when she gave the statement to the Police she was very much more upset than she was at this time and was probably more confused. The statement to the Police does not really vary in material particulars to the evidence given in Court and I would not use this as a reason for disbelieving the applicant. I am also not concerned that the applicant's oral evidence is more detailed in some ways than the affidavits which she put on. The applicant could not be expected to understand how detailed such affidavits need to be or the intricacies of what is or is not admissible evidence. Considering whether or not to accept the applicant's evidence I started from the base that a person was unlikely to make up and bring to prosecution allegations of this nature against a businessman of some profile in a small country town. There is nothing novel about this assumption and it is one that can be easily rebutted if the complainant is shown to have a motive for making his or her complaints. In this case the respondents attempted to show as a motive the dismissal of the applicant. The difficulty which I have in accepting this submission is that the applicant attended upon her doctor and complained of sexual harassment before she was dismissed. Furthermore, the evidence relating to the unsatisfactory nature of the applicant's driving put forward as a reason for her dismissal was only put forward very late in the day and not contained in any of the original affidavits. Although the applicant readily conceded that her driving had suffered in the few weeks prior to her dismissal it was never suggested in the affidavits of the respondents that they had warned her or that for any other reason she should feel that her employment was in jeopardy. The suggestion of a warning from Mrs Kirkland in December was to my mind a late invention by that witness which I discount.

36. In the evidence given by the respondents, Mr and Mrs Kirkland attempt to show that the guiding mind of the taxi business was that of Mrs Kirkland. This may well be the case, but if it was one wonders why she made the remark that she did upon dismissing the applicant, namely "If you want to know more, go and see Ray". It may be that this remark had more to do with the fact that Mrs Kirkland had had enough of her husband's actions vis a vis the applicant, had told him so and expected him to tell the applicant. This may be mere surmise on my part but it is a surmise which sits comfortably with the facts as Mr and Mrs Kirkland wished to have them believed and the lack of explanation put forward by Mrs Kirkland in the witness box.

37. The evidence from the Doctor's notes is corroborative of the applicant's statement. It is not suggested that the applicant went to the Doctor after she saw Mrs Kirkland and was dismissed, and it is not suggested that the applicant was aware that she was about to be dismissed before she went to the Doctor.

38. There are a number of discrepancies between the evidence given by Mr and Mrs Kirkland and that given by Mr Mathes and Leslie Kirkland. This is particularly the case in respect of what occurred at the birthday party on 15 January. It seems clear to me that Mr Mathes and Mr Leslie Kirkland were both mistaken when they suggested that Mr Kirkland senior did not go into the office. Having gone into the office the three stories of the events which took place there are similar up until the point at which the applicant alleges that Mr Kirkland grabbed her from behind and with one hand fondled her left breast.

39. The applicant's evidence about what occurred was clear. It is fair to say that the denials from Mr Kirkland and Mrs Kirkland were equally clear. The applicant was disadvantaged by her inability to properly cross-examine Mr and Mrs Kirkland and it would have been descending into the arena if I had conducted some form of cross-examination on her behalf. In making up my mind to prefer the evidence of the applicant over that of Mr and Mrs Kirkland I took into the account the totality of the demeanour of each in the witness box and their manner of giving evidence. There was something about Ms Wattle's evidence that, independently of any corroboration, made me believe that she was telling the truth. I am not prepared to go so far as to say that on the contrary there was something about the evidence of Mr and Mrs Kirkland that made me feel that they were not telling the truth. But I felt that their demeanour showed signs of them appreciating that they had very much more to lose than Ms Wattle had to gain by being believed.

40. The incident of the 15 January was the most serious of all the incidents and because of the way in which the applicant's evidence was ranged against that of four others the most difficult to deal with. However, having found that that incident occurred and having found that it occurred to the Briginshaw standard (by a combination of my observation, the discrepancies in the respondents' witnesses testimony and the corroboration from the medical records) it is more simple for me to come to the conclusion that the other incidents described by Ms Wattle also occurred. I accept her evidence of both the remarks and the other touching incident. In respect of the evidence concerning the remark made on 9 January 2000 some of the explanation given by Mr Kirkland in his affidavit is unsatisfactory. At one stage he says he was asleep and at another he says he knew that the applicant had come into the office.

41. The applicant contends that the actions of Mr Kirkland constituted sexual harassment within s 28A of the Sex Discrimination Act 1984 (Cth). That section is as follows:

"28A(1) [Sexual harassment defined] For the purposes of this Division, a person sexually harasses another person (the "person harassed") if:

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

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

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

42. The applicant would also contend that the actions of Mr Kirkland as a director of the company which owned Kirk's Cabs was in breach of

s 28B(1)(a) which reads as follows:

"28B(1)(a) [Employees] It is unlawful for a person to sexually harass:

43. It is alleged by the applicant that the actions in breach of ss 28(1)(a) and (b) and 28 B(1)(a) constitute sexual discrimination within s 5 of the Sex Discrimination Act and further that her dismissal constituted a breach of s 14(2)(c) of the Act.

44. There would appear to be an allegation of responsibility by way of vicarious liability under s 106 of the Sex Discrimination Act against Mrs Kirkland.

45. I am satisfied that the actions which I have found took place did indeed contravene s 28A, s 28B, s 5 and s 14 of the Sex Discrimination Act. I am satisfied that the employing entity was the company rather than Mr and Mrs Kirkland in their personal capacity and therefore I do not make any findings in regard to vicarious liability or otherwise against Mrs Kirkland. In making the findings (other than that relating to vicarious liability) which I have made in a form as bald as I have made them I take into account the fact that no submissions were made to me by Counsel for the respondents that any of the conduct did not so constitute breaches of the Act.

46. The applicant succeeded because I found that the allegations which she had made constituted unwelcome sexual advances or unwelcome conduct of a sexual nature which a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimidated. There was no real suggestion that either the remarks or the actions were not actions of a sexual nature or could otherwise be explained.

47. I found that because of the applicant's demeanour in the witness box and the corroboration afforded by her Doctor's medical records that I could believe her evidence over that of the two main witnesses for the respondents whose evidence contain a number of inconsistencies and whose demeanour was less satisfactory than that of the applicant. I found that the additional evidence of Mr Mathes and Leslie Kirkland was in contradiction to that given by the applicant and Mr and Mrs Kirkland and was less than helpful to the case being put by the respondents.

48. The applicant has claimed general damages for hurt and humiliation and also special damages made up of forty weeks of the wages which she would have received had she continued in her employment. The period of forty weeks has been chosen because she says that was the period during which she attended for counselling which she required after the harassment which she suffered. Regrettably there was little in the way of medical evidence and no evidence whatsoever from any counsellor. The medical records of Dr Yates do appear to confirm that the applicant did have counselling and this has not been seriously challenged by the respondents. On the other hand it is not easy for me to accept without more that the counselling was required for the full forty weeks or that the applicant was incapable of going back to any form of employment during that time.

49. On the other hand the applicant was dismissed from her employment and the effect of my findings has been that she was dismissed not because of her failings as a driver but because she was to the knowledge of Mrs Kirkland the object of sexual harassment by Mr Kirkland. A dismissal for these reasons is unlawful pursuant to

s 14(2)(c) of the Sex Discrimination Act. If Ms Wattle had been represented it is not difficult to foresee that a very much larger claim for special damages for loss of earnings might have been made. There was evidence given that the applicant was in receipt of a pension and this pension appears to be connected with her asthma and diabetes problems. The position relating to her ability to work has therefore not been clarified and for that reason I would not be inclined to extend any damages for loss of earnings beyond the forty weeks claimed. The question is whether or not the forty weeks is itself defensible. On balance I do not think it is. If one looks at the matter purely from a unfair dismissal point of view then a period of six months damages would be more usual particularly for a person in the non managerial categories. The lack of evidence of a medical nature is such that I cannot extend the period for that reason.

50. The applicant deposed to suffering hurt and humiliation, fear and concern which manifested themselves in panic attacks and exacerbation of her existing asthma. It was not denied that she had attended counselling for approximately forty weeks. In the circumstances I believe an appropriate award of general damages would be $15,000.00. In respect of the special damages I would award the applicant twenty-six weeks at $350.00 per week, a total of $9,100.00. This award is made gross, noting that it is an award for loss of wages and should be declared as such and tax paid upon it pursuant to Income Tax Ruling 2484.

51. The applicant was self-represented and accordingly is not entitled to any legal costs (Cachia v Hanes [1994] HCA 14; (1994) 120 ALR 385). She did, however, come from Mudgee to Sydney for a directions hearing, in respect of which I am prepared to assess her out-of-pocket expenses as $100.00.

53. I would dismiss the claim against Mrs Kirkland in her personal capacity. She is a director of the employing company but she was not responsible for the acts of her co-director husband. However, I do not think any extra costs were involved by her being joined (instead of the claim being made against the company and Mr Kirkland) and I would make no order as to costs. Mr Kirkland as instigator of the unlawful activity must pay the award.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Kenneth Raphael FM