Webb v Newcastle Hire Cars Pty Ltd & Ors

REASONS FOR DECISION BACKGROUND 1 The Ms Telina Webb (the Applicant) commenced employment with Newcastle Hire Cars Pty Ltd (the First Respondent) in approximately February 1997 as a hire car driver/chauffer. She terminated her employment on 4 May 1998. 2 On the 19 May 1998 the Anti-Discrimination Board (the ADB) received a complaint from Ms Webb alleging discrimination on the ground of sexual harassment against Newcastle Hire Cars Pty Ltd. She subsequently joined Mr Peter Pandel and Mr John (Jago) Solaja to the complaint. 3 On 17 April 2003 the ADB referred the complaint to the Equal Opportunity Division of the Administrative Decisions Tribunal pursuant to section 94 (1) of the Anti-Discrimination Act 1977 (the Act). 4 In the Report from the President of the ADB the President exercised his discretion pursuant to section 88 (4) of the Act to accept all out of time allegations and it was noted that the complaint spans from some time in March 1997 up to 4 May 1998. RELEVANT PROVISIONS OF THE ANTI-DISCRIMINATION ACT 1977 5 Part 2A of the Anti-Discrimination Act 1977 ("the Act") prohibits sexual harassment in certain areas. Section 22A of the Act defines sexual harassment as follows: For the purposes of this Part, a person sexually harasses another person if: (a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the other person, or (b) the person engages in other unwelcome conduct of a sexual nature in relation to the other person, in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be (c) offended, humiliated or intimidated. 6 Section 22B(2) of the Act makes it "... unlawful for an employee to sexually harass a fellow employee or a person who is seeking employment with the same employer". 7 Section 53 of the Act 'Liability of principals and employers' provides: (1) An act done by a person as the agent or employee of the person's principal or employer which if done by the principal or employer would be a contravention of this Act is taken to have been done by the principal or employer also unless the principal or employer did not, either before or after the doing of the act, authorise the agent or employee, either expressly or by implication, to do the act. (2) If both the principal or employer and the agent or employee who did the act are subject to any liability arising under this Act in respect of the doing of the act, they are jointly and severally subject to that liability. (3) Despite subsection (1), a principal or an employer is not liable under that subsection if the principal or employer took all reasonable steps to prevent the agent or employee from contravening the Act. THE EVIDENCE 8 The Report of the President of the ADB referring the complaint to the Tribunal was admitted into evidence. 9 We have taken account of all the evidence to the extent that it was logically probative and relevant to the facts and issues in dispute in making this determination. APPLICANT'S EVIDENCE Telina Webb 10 Ms Telina Webb relied upon her sworn statement of 7 September 2003 and gave evidence to the Tribunal. She was employed as a casual Hire Car Driver/Chauffer with Newcastle Hire Cars from 18 January 1997 to 4 May 1998. 11 She claimed she earned an average of $ 250.00 per week and relied upon some wage records which she retained. Ms Webb stated that she only worked evening shifts because she worked full time elsewhere. Claim against John Solaja Phone calls and invitations 12 Ms Webb stated that shortly after she commenced employment with Newcastle Hire Cars Mr John Solaja repeatedly asked her out socially. She stated that she repeatedly told him she did not wish to go out with him socially. He would call her at her home and at her day job. She did not take any action as she did not wish to jeopardise her employment. 13 When questioned about the phone calls Ms Webb stated that the invitations were within the first 6 months of her employment and started within a couple of weeks after March 22 1997. On the first occasion he asked her out for a drink. She brushed it off and continued with small talk. On the second occasion Ms Webb said she felt uncomfortable however she was not rude. 14 On the third or fourth occasion Mr Solaja telephoned Ms Webb, she said she decided to go out because she did not know what else to do. Ms Webb stated that on the first occasion she went out with Mr Solaja they went to the Casino in Sydney. The drove to a restaurant and had dinner at Warrawee then went to the Casino in Sydney. Mr Solaja played Roulette and Ms Webb walked around the Casino. They drove home to Newcastle arriving back at around 3.00am, possibly later. 15 Ms Webb stated that on the basis that nothing inappropriate happened she agreed to go out with Mr Solaja a second time. They met and went for a drink at a hotel in Charlestown and then drove to Warner's Bay. Ms Webb stated that on that occasion Mr Solaja put his arm around her and squeezed her. She said, "Don't be a naughty boy". He replied, "Can I get naughty with you". She replied, "No". He stopped. Mr Solaja drove Ms Webb back to her car and they went their separate ways. Ms Webb conceded that Mr Solaja was aware that this was the "end of it" and he did not ask her out again. Poking and touching 16 Ms Webb states that Mr Solaja poked her in the sides while she was at Newcastle Hire Cars and would laugh about it. She said that she repeatedly told him "Don't touch me, just don't touch me". She said it was quite clear that she did not want him to touch her. She felt offended and uncomfortable as her personal space was invaded. She felt the gestures were sexual in nature. 17 On one occasion when Mr Solaja was poking her in the sides, she said, "Just don't touch me". He replied, "What are you going to do about it" and grabbed her in a head lock. Claim against Peter Pandel 18 Ms Webb stated that Mr Peter Pandel was the radio operator on the Saturday night shifts at Newcastle Hire Cars. He would allocate vehicles and jobs to drivers and was in charge during this shift. 19 Ms Webb stated that from approximately June 1997 until she resigned in May 1998 Mr Peter Pandel repeatedly asked her out socially. She stated that she repeatedly told him that she was not interested in going out with him. She claims that she stated on numerous occasions that she did not want to be touched by him. She claims she said "Don't touch me, just don't touch me". 20 She said that late in the evenings waiting at the base for jobs she spent numerous hours in conversation with Mr Pandel. Mr Pandel made it clear that he had been a friend of Mr Solaja for 20 years. Ms Webb stated that a lot of the conversation was very personal and she became uncomfortable. Mr Pandel told her that he was married but had an "arrangement" with his wife. Ms Webb stated that she was intimidated by Mr Pandel and his position at Newcastle Hire Cars. She said that she did not want to make any complaints as that might jeopardise her job. 21 Ms Webb stated that after some weeks of Mr Pandel's personal questioning she decided to participate in what she described as "Hot Plating" a process whereby a driver would wait outside a venue for a fare. (It is noted that Mrs McLeish told the Tribunal that while this activity is not allowed technically it is not what is known in the industry as "hot plating") Ms Webb said that the process was not allowed by the Hire Car regulations and somewhat risky for a female driver as you did not know who was getting into the vehicle. 22 Ms Webb stated that on more than one occasion Mr Pandel would come up to her vehicle when she was refuelling and place his hand on top of hers whilst she was holding the pump handle. She stated that she always took her hand away and he continued to fill the car. He would say, "I just want to help you". 23 Ms Webb stated that Mr Pandel would make sexual gestures with his tongue and looking directly at her which repulsed her. 24 Ms Webb stated that on one occasion Mr Pandel became angry at the end of a shift because she said that she was going to meet a friend for breakfast. He wanted an explanation as to why she would not accept a similar invitation from him. 25 Ms Webb stated that on another occasion she accepted a lift home from a Newcastle Hire Car driver. The following week Mr Pandel confronted her and said, " I've been dirty with you all week. Why didn't you let me take you home?" Ms Webb stated that she didn't complain about the above incidents because she did not want to jeopardise her job. She stated she did not know who to speak to at Newcastle Hire Cars about these incidents. 26 Ms Webb stated that Mr Pandel often insisted on buying her a meal during the shift. He would get angry if she rejected the offer. As a result of this she missed a lot of meals during shifts to avoid confrontation. She said that she started bringing in a portable barbecue to work and to try to get drivers to put in funds so as to avoid the issue of meals with Mr Pandel. 27 It is alleged by Ms Webb that approximately 7 weeks prior to Mr Pandel taking annual leave he said that she had 7 weeks to prepare for his departure, as he wanted a "little cuddle" before he left. Ms Webb stated that on his last Saturday night shift before he left he cornered her and requested a cuddle. She told him "No". She stated that she had been dreading the moment in anticipation. She stated that she did not make any complaint as she did not want to jeopardise her job. 28 Ms Webb stated that on one occasion she came to work with a little bruise on her neck which she described as a "love bite". Mr Pandel asked if the bruise was real. He said that he did not understand how she could do this as she had rejected his invitations to go out. She said that she told him that she could not comprehend the interest he and other staff members had in her personal and sex life. Mr Pandel replied that she would not attract attention if she had not been so secretive. She also stated that Mr Pandel called her at home the following day to apologise but then he stated, "but you know how I feel about you". 29 Ms Webb stated that upon her return to work from an overseas holiday she asked Mr Solaja to arrange for her to work on alternate weekends for an indefinite period. Ms Webb stated that she did not discuss this with Mr Pandel, he noticed a change in the roster and asked why she was doing this. Ms Webb stated that he suggested that she work every weekend on Saturday. Ms Webb stated that in conversations with Mr Pandel he would say to her, "I just want to be with you." 30 She said that she did not make any complaint as she did not want to jeopardise her job. She said that in a diplomatic effort to discourage Mr Pandel she told him that she was not interested in being with him and that she was not interested in him in a personal way. 31 She stated that one morning she needed transport and telephoned Newcastle Hire Car to book a car. She stated that when the vehicle turned up she felt sick, as Mr Pandel was driving. She said she did not want to be alone with him, nor in close proximity. 32 Ms Webb alleges that when she got into the car Mr Pandel said to her, "you don't live here, what are you doing here?" She replied she was house sitting. He reached over and took hold of her right hand. She said she took away her hand and sat on both her hands. She said she did not make any complaint as she did not want to jeopardise her job. 33 Ms Webb claims that on a Saturday night shift at Newcastle Hire Cars she had a severe toothache. She was taken to the Mater Hospital by a Newcastle Hire Car driver and left. She was given a Pethadine injection. She contacted Newcastle Hire Cars and Debra Edwards a driver with Newcastle Hire Cars picked her up from hospital. Ms Webb states that by that time she was heavily sedated. On the way home they stopped at the Newcastle Hire Cars base to pick up her things. 34 Ms Webb stated that when Ms Edwards got out of the car Peter Pandel came around to Ms Webb's side of the car. He opened the door and took her hand and began rubbing it and squeezing it and talking to her. She said that she was very upset that Mr Pandel was taking advantage of her in that condition. When Ms Edwards returned Ms Webb said to her, "I can't stand it when he touches me." Ms Webb stated that Mr Pandel telephoned her the following day. Ms Webb stated that she did not make a complaint as she did not want to jeopardise her job. 35 Ms Webb stated that because of the number of unwanted telephone calls from Mr Pandel she eventually decided to disconnect her telephone in approximately April 1998. She stated that she did not make a complaint as she did not want to jeopardise her job. She said that she did tell Tony Hoare why she had disconnected the telephone. 36 Ms Webb stated that by this stage she was very apprehensive about going to work at Newcastle Hire Cars. Mr Pandel questioned her numerous times about the location of her day job, suggesting they meet during her lunch break. She stated that she always declined theses invitations. 37 She said that she has said to Mr Pandel repeatedly "Don't touch me, just don't touch me." Calendars and Magazines 38 Ms Webb stated that during the entire time she worked for Newcastle Hire Cars there were obscene calendars on display. She said she was offended by the calendars and spoke to Tony Hoare on a number of occasions about the calendar. The calendars were visible to employees. She stated that she was offended by the material and embarrassed when comments were made in reference to it in her presence. 39 The particular calendar was located on a wall in the operator's room. Ms Webb said that the calendar was visible to staff and the public. She said the calendars had photographs of women including bare breasts. 40 She stated that there was also a poster in the men's toilet cubicle with about two hundred photos of women's breasts on it. Under the breasts women's names had been written including employees wives, the office assistant Ms Kelly Gumb and her own name. 41 Ms Webb said that Mr Tony Hoare told her about the poster and she went into the toilet to look for herself. She was very embarrassed by the calendar but did not complain as she did not want to jeopardise her job. 42 Ms Webb stated that pornographic literature (magazines) was strewn around the meal room at Newcastle Hire Cars. She said she was offended by the material and it embarrassed her when other staff members read it in her presence. She said the magazines were "Picture" and "Post" and included photographs of naked women. The Meeting of 30 April 1998 43 Ms Webb stated that she was called into a meeting with Mr Solaja and Mrs McLeish on Thursday 30 April 1998. Mr Solaja asked if she had any problems with anyone at Newcastle Hire Cars. Ms Webb replied "no". Mr Solaja then asked why her phone had been disconnected. She said to Mr Solaja the whole thing was very difficult for her. She said that she did not want to create any problems and that it was hard enough fitting into a predominantly male work place without singling her out over this issue. She told them that she enjoyed the job. Ms Webb stated that she was concerned was that she might make her working situation worse, or lose her job, if Mr Pandel's actions became public knowledge. 44 Ms Webb stated that Mr Solaja insisted that she should come to him if there were any problems as that was the only way to solve them. He said that he was aware that she was spending time off the base to avoid Mr Pandel. Ms Webb stated that Mrs McLeish then assured her that she had the right to be comfortable at work and to rest in the meal room in between jobs. Mrs McLeish said, "We can get into a lot of trouble about this". 45 Mr Solaja said that he had received complaints from other drivers alleging favouritism by Mr Pandel in his allocation of jobs to Ms Webb. Ms Webb said that she had not encouraged any favouritism. She said that the issue was very stressful and upsetting and she did not want any-one to touch her. She stated she became more visibly upset. She states that at no time during the meeting did Mr Solaja or Mrs McLeish ask her how she would prefer they handle the matter or what outcome she expected if any. 46 Mr Solaja stated that he would be holding a meeting to sort out this and other issues on Saturday 2 May 1998. 47 Ms Webb stated that immediately after the meeting Mr Solaja followed her down the stairs. She said "Please don't do this to me" referring to the up-coming staff meeting on Saturday. Mr Solaja replied, "Don't worry about it". Ms Webb said "Do you want me to be nervous and up-tight?" He replied "it's good to be tight isn't it?" He then squeezed Ms Webb's hand in his patting it and shaking it. She said she pulled her hand away. 48 Ms Webb stated that a short time later Mr Tony Hoare told her he had overheard what had been said by Mr Solaja. 49 After taking advice from the Working Women's Centre Ms Webb arranged to have a support person attend the meeting to be held on Saturday 2 May 1998 and had her friend Ms Munro attend the meeting. Mr Solaja asked if Ms Munro was a new driver. He said the meeting was for management and drivers and "anyone else can get out". 50 The meeting went ahead and dealt with procedures for the use of the 2-way radio, procedures for calling jobs and general protocol. Ms Webb stated that Mr Solaja then asked if any body had anything else to say. Ms Webb stated that she then said, "I'd like to know what your policy is on sexual harassment and what its placement is in this workplace". She repeated the request and Mr Solaja started yelling and said that she had told him she did not want him to do anything about this. Ms Webb stated that she accused him of not having a policy and he said he did have one. They were arguing and shouting until Ms Webb eventually left the meeting. 51 Ms Webb stated that she had dropped off a letter to Mr Solaja at 5.50pm on the previous night being Friday advising that she was bringing a support person to the meeting. Mr Solaja was not there at the time. 52 Ms Webb sent a letter of resignation by registered post on Monday 4 May 1998. Evidence of Deborah Edwards 53 Ms Deborah Edwards relied upon her sworn statement of 7 September 2003 and gave oral evidence at the hearing. She was employed as a casual driver/chauffer in 1997 and 1998. 54 She said that she did not socialise with Ms Webb outside of work but developed a normal working relationship. 55 She told the Tribunal that one Saturday night when Ms Webb developed a toothache she took her to the Mater Hospital. At approximately 3.00am she was informed that she could collect Ms Webb from hospital. She said that when she collected her she called at the base to collect Ms Webb's bags. 56 She said that she left the engine running on the car and went inside to collect the bag. When she returned she could see Mr Peter Pandel almost half way in the car. He was leaning over Ms Webb. She had to ask him to move to place the bag at Ms Webb's feet. When she got around to the driver's side he was again leaning in the car touching her hands. He did not get out of the car until she shifted the car into drive and the car started to move. Ms Webb said to her "I hate it when he touches me". She was clearly upset. 57 Ms Edwards also told the Tribunal that she had seen pornographic literature in the meals rooms. She identified it as "Picture" "Post" and "Playboy" magazines. 58 She also told the Tribunal there was a calendar of semi-naked women on display in the radio operator's room. She said the photographs included women with bare breasts often kneeling. When it was put to her that the women wore swimsuits she said that she had a clear recollection of a photograph of a "topless" woman. 59 Ms Edwards had no recollection of ever seeing a sexual harassment policy. 60 Ms Edwards told the Tribunal that she had overheard Ms Webb say to many people including Mr John Solaja "Just don't touch me". She said that on one occasion Mr John Solaja put his hand on Ms Webb's and said "Don't worry". She replied, "Just don't touch me". 61 She recalled another incident where Ms Webb had her hand on a ledge and Mr Solaja put his hand on hers. Evidence of John Solaja 62 Mr Jago John Solaja relied upon his sworn statement of 2 October 2003 and oral evidence given to the Tribunal. Mr Solaja is the second respondent and a principal of the first respondent. He said that Ms Webb was employed from 18 January 1997 to 4 May 1998 and that pursuant to the contract of employment Ms Webb was paid 40% of each fare. 63 Mr Solaja denies that he ever requested Ms Webb to go out with him socially. He said that the only time he ever telephoned her at her principal place of employment was on Monday 24 March 1997 following a motor vehicle accident in which Ms Webb was involved on the previous Saturday. The purpose of the call was to organise insurance papers. He denied calling Ms Webb at home on any occasion. He would direct his radio operators to call Ms Webb to offer work. 64 He denies that he ever took the Ms Webb to the Star City Casino. He denies he touched the Ms Webb or made sexual advances at any time. He denies that he said "Can I get naughty with you", to Ms Webb. He also denies holding Ms Webb in a headlock. 65 Mr Solaja stated that on or about 28 April 1998 he had a conversation with Mr Tony Hoare. Mr Hoare said words to the effect, "Telina Williams has disconnected her phone because of Peter Pandel" and "Peter Pandel has been harassing Telina over the telephone". He said this was the first notice that he had that there was any problem between any other worker and Ms Webb. 66 Mr Solaja said that on 30 April 1998 he arranged for a meeting with Ms Webb, himself and Mrs Val McLeish. He stated that he said to Ms Webb words to the effect, "I have a question for you. The question is , "Do you have any problems with anybody here ?" She said "No". He then went on to say, "The second question is, why did you disconnect your phone?" She said words to the effect "I don't want to talk about this". He states he said words to the effect, "I heard a rumour that you have been harassed by Peter Pandel on the phone". To which she replied words to the effect, "the problem is that all the drivers talk about the operator favouring me with better jobs than them and, if there is any truth in that, I am not the instigator of it. It solely falls back onto the operator." He said that "I have received a few complaints regarding this and I will address the matter on Saturday afternoon before the commencement of the shift". Ms Webb said words to the effect, "Don't mention anything because I can't see any problems." 67 Mr Solaja said he advised Ms Webb that another driver Chris Grieves had made a formal complaint about the allocation of jobs. He advised that there were rules for the calling for a job. Ms Webb then said "I don't want you to mention this to anybody". Mr Solaja stated he replied, "I think I have a problem and I have to fix it." He said that later that evening Ms Webb said to him on two occasions, "Please don't mention this to anybody". He stated that as she said this she was smiling and winking and he did not respond because he was confused by her behaviour. 68 Mr Solaja denies following Ms Webb down the stairs. He further denies stating to her, "it's good to be tight isn't it?" He denies taking Ms Webb's hand in his. 69 Mr Solaja denies that Ms Webb ever brought it to his attention that she was bringing a support person to the meeting and consequently was surprised when Ms Munroe was present at the meeting on Saturday 2 May 1998. He concedes that he asked her to leave the meeting. 70 He stated that it was quite clear that the intention of the meeting was to deal with the issue of operators not following proper procedure in allocating work. He stated that he did not see why he would need to consult with Ms Webb as to what outcomes she expected from the meeting, nor why it was necessary for her to have a support person. The policy is clearly set out in the document entitled "2-way radio procedure". 71 Mr Solaja stated that he did not counsel nor reprimand Mr Pandel as no complaint was made about his behaviour. When questioned he stated that he said to Mrs McLeish after the meeting on 30 April 1998 "What am I going to do now" as no complaint had been made by Ms Webb about Mr Pandel. 72 He stated that Ms Webb did not make a verbal or written complaint about sexual harassment. He was therefore extremely confused by her behaviour at the meeting on 2 May 1998. 73 He states that at no time during her employment did Ms Webb complain about posters or calendars or any other material in the work environment. 74 Mr Solaja conceded that he saw magazines such as "Picture" and "Post" in the meal room and did not pick them up. He states that such magazines do not contain "pornographic" literature and are capable of being purchased at a newsagency. 75 A poster of women's breasts appeared in the men's toilet with women's names including Ms Webb's underneath the pictures. He states that he did not know who put up the poster and he removed the poster as soon as it came to his attention. 76 Mr Solaja stated that the sexual harassment policy was always on display in the noticeboard cupboard. Evidence of Mrs Val McLeish 77 Mrs Valmay McLeish said she is a principal of Newcastle Hire Cars Pty Ltd the first respondent and also the Office Manager. 78 She said that on or about 29 April 1998 John Solaja said to her words to the effect: "Tony Hoare has told me that we may have a problem with Telina Webb and Peter Pandel. Apparently, Telina has disconnected her phone because Peter Pandel has been giving her a hard time. I intend to hold a meeting with Telina to make sure everything is okay." 79 On 30 April 1998 Ms Webb was called to attend Mrs McLeish's office. A meeting was held with Ms Webb, Mr Solaja and Mrs McLeish. Ms Webb said words to the effect, "What have I done". Mr Solaja said words to the effect, "I have a question for you. The question is, 'Do you have any problems with anybody here?'" She said "No". She denied that she had any problems with anybody at work. Mr Solaja continued to question her but she continued to deny any problems. 80 Ms McLeish said that she said words to the effect, "If there is any truth in the allegations that Peter Pandel is causing you any problems I will personally take action as I have known him for 20 years". Ms Webb said words to the effect "I don't want you to mention anything to anybody. I don't have any problems." Ms McLeish states she then said words to the effect, "Telina, you have the right to feel safe and comfortable at work and to rest in the meal room in between jobs. If you have any issues, please let us know." Ms Webb again denied she had any issues she wanted to canvas. 81 Ms McLeish states that a copy of the Sexual Harassment Policy was placed in the noticeboard of Newcastle Hire Cars and was on display during the time Ms Webb was employed as a driver. 82 Ms McLeish states that at no time during her employment did Ms Webb make a complaint to her about any other contract worker, any posters or calendars or material in the work environment. 83 Mrs McLeish conceded that she had seen "Picture" and "Post" magazines in the meal room and that she had not picked them up and put them in the bin. 84 She said that she was aware that there was a calendar in the operators room. The calendar could only be seen from the side window if you twisted your head. It could also be seen if you entered the room. The room had a door which read, "No Entry. Operators Room". Evidence of Ms Kelly Gumb 85 Ms Kelly Gumb gave evidence relying upon her statement sworn 3 October 2003. She attended the meeting of 2 May 1998 and took the minutes. She later transcribed the minutes with the assistance of her own and John Solaja's notes. 86 She stated that she did not see any offensive calendar in the operator's room, nor did she see any pornographic literature in the meal room. 87 Ms Gumb when questioned conceded that she had never seen the sexual harassment policy, however stated that she was aware that one existed. 88 She stated that she once had a problem with Mr John Solaja when he got angry and swore at her. She went to Mrs McLeish and made a complaint. The matter was dealt with and such an incident never recurred. Evidence of Margaret Robertson 89 Margaret Robertson was employed with Newcastle Hire Cars. She stated that she did not observe any pornographic literature in the meal room, nor anywhere else on Newcastle Hire Cars premises. Evidence of Peter Pandel 90 Peter Pandel relies upon his sworn statement of 27 October 2003. He stated that he has worked for Newcastle Hire Cars and its predecessor as a part time employee since 1968. 91 He states that to the best of his recollection during the period 18 January 1997 to 4 May 1998 he worked each Saturday evening from 4.00pm to 6.00am on Sunday morning as a radio operator. During this time he also did casual shifts as a driver when requested to do so. He stated that there would be 8-10 drivers operating cars on a Saturday night. He said his job was to allocate jobs to the drivers. 92 Mr Pandel stated that to the best of his recollection he would have first met Ms Webb in January or February 1997. He stated that to the best of his recollection shortly after he met Ms Webb he asked her out for a drink. He said that to the best of his recollection over the next 4 or 5 shifts that he found himself working with Ms Webb he would ask her, "would you like to go out for a drink?" or "would you like to go out for coffee?" He stated that to the best of his recollection her response was "no thanks". On each occasion the conversation was friendly and would continue for some time thereafter. He states that to the best of his recollection he did not ask Ms Webb out after March 1997. He denies asking Ms Webb out socially from June 1997 until May 1998. 93 He denies that Ms Webb ever said to him "don't touch me. Just don't touch me." 94 He recalls an incident in the driver's room in early 1997 when another driver asked Ms Webb if she was married. She responded, "I am not discussing my personal life. It's private." He denies that those words were said to him then or on any other occasion. 95 He states that he does recall one or two occasions when he placed his hand over Ms Webb's when she was trying to refuel the vehicle to ensure she made a good connection and demonstrate the action needed to make the connection properly. He states the refuelling connection is difficult and drivers would often have difficulty establishing a proper connection. If a proper connection was not made LPG fumes would escape. He states he understands this has the potential to cause burns, skin irritation, and the fumes can get caught in clothes. He states that this would not have occurred more than one or two occasions. He also states that he was frequently asked for help in this manner by both male and female drivers. 96 Mr Pandel denies showing favouritism to Ms Webb on the basis of allocating well paid jobs. He states he allocated work on the basis of occupational health and safety considerations. He said that after midnight on Saturday customers would often be inebriated and there would be groups of males wanting to travel together. He allocated certain jobs to Ms Webb to avoid unnecessary risk having regard to the fact that she was the only female driver on a Saturday night. 97 Mr Pandel agreed that just before he went on an overseas trip he said to Ms Webb "give us a cuddle before I go". He had also given Val McLeish a cuddle on his last shift with her. He said Ms Webb requested that he bring her back some perfume and offered to pay. He said that he did try to give her the perfume as a gift. 98 Mr Pandel agreed there was an occasion when he was driving for Newcastle Hire Cars when he was called to a job at an address in Wallsend. He said he did not recognise the address, however upon arrival he was surprised to see Ms Webb. He said he did not know who called the job in. He said words to the effect, "you don't live here, what are you doing here?" He states he does recall reaching over and squeezing Ms Webb's right hand as a gesture of friendship. 99 In relation to the incident when Ms Webb went to hospital with toothache Mr Pandel states that he recalls she was rostered to work that evening. Mr Pandel said the Mater Hospital rang the depot to advise Newcastle Hire Cars that Ms Webb could be picked up. He asked if she would be able to drive that evening and was advised no. He said he allocated Deborah Edwards to collect Ms Webb. 100 Mr Pandel said that when Ms Edwards and Ms Webb arrived at the depot he went out to the car. He said that Ms Webb was crying and appeared distressed. Ms Webb said words to the effect that "she was sorry she was letting me down because she could not drive for the rest of the shift". Mr Pandel said that he took her hand and said "don't worry". He then said to Ms Edwards to take Ms Webb home. He then said to Ms Webb, "I will ring you tomorrow morning to see how you are going". 101 He stated that he did ring the next morning to the best of his recollection at about 10.30am. 102 Mr Pandel stated that to the best of his recollection he would have telephoned Ms Webb at home approximately on 5 or 6 occasions during the entire time he knew her. He stated that with the above exception on the other occasions the calls related to work. He stated that he does not know anything about Ms Webb having her telephone disconnected. FINDINGS AND DECISION 103 Sections 22A-J of the Anti-Discrimination Act 1977 commenced on 4 July 1997. The provisions are not retrospective. The Tribunal therefore cannot find a contravention of sections 22A and 22B in relation to this matter prior to the commencement of those sections. 104 Prior to the introduction of section 22B sections 24 and 25 of the Act had been interpreted to include sexual harassment see O'Callaghan v Loder [1983] 3 NSWLR 89. There were, however, limitations on the scope of the application of these provisions in claims of sexual harassment. It was not possible to bring a complaint of sexual harassment against a fellow employee pursuant to section 25. Therefore in relation to this matter any allegations against Mr Solaja and Mr Pandel complained of prior to 4 July 1997 would not fall within the scope of section 24 and 25 and also would not be caught by sections 22A and 22B. 105 In relation to employers the circumstances identified by Mathews DCJ in O'Callaghan v Loder require proof of disadvantage or detriment where there is actual or contemplated non-compliance with the sexual demands placed upon the complainant. See Commissioner of Police New South Wales Police Service v Orr [2001] NSWADTAP 16 106 The standard of proof is that of "comfortable satisfaction" as set out in Briginshaw v Briginshaw. In determining whether the Applicant has established her case, we have applied the civil standard of proof. In doing so, we have taken into account the gravity of the allegations and the serious consequences of any adverse findings to the Respondent. See Dixon J in Briginshaw (1938) 60 CLR 336 at pp 361-362. See also O'Callaghan v Loder (1984) EOC 92-024 at pp 75, 511-75, 512. 107 The First Respondent formally conceded that Ms Webb is an employee of the First respondent and that the provisions of the Anti-Discrimination Act 1977 apply to Ms Webb's employment with Newcastle Hire Cars Pty Ltd. CLAIM AGAINST JOHN SOLAJA Phone calls/Invitations 108 The Tribunal heard evidence from Ms Webb that Mr John (Jago) Solaja telephoned her and asked her out socially on approximately four occasions. She gave evidence that she did not want to go out with Mr Solaja, however she was concerned for her job. Ms Webb gave evidence that when Mr Solaja asked her out she would "brush off" the invitation and the conversation would continue amicably. Mr Solaja denies the invitations were made to Ms Webb. 109 Ms Webb gave evidence, which is disputed by Mr Solaja, that they went out twice. Ms Webb told the Tribunal that on the first occasion she went out with Mr Solaja they drove to Sydney and went to the Casino. Mr Solaja denies this. She went on to state that Mr Solaja behaved entirely appropriately and it was on this basis that she agreed to go out with him again. 110 On the second occasion Ms Webb went out with Mr Solaja, which he again denies, she states that they met and drove to Warners Bay. Ms Webb claims that it was on this occasion that Mr Solaja put his arm around her. She said to him "don't be a naughty boy", to which Mr Solaja is alleged to have replied, "Can I get naught with you?" Ms Webb states that she said "No". She concedes that Mr Solaja accepted this rejection and did not call her or ask her out again. 111 Having regard to this part of the claim the evidence is equivocal as to the facts. Even if however the Tribunal were to accept the facts as proven, the evidence is not sufficient to establish that Mr Solaja was sexually harassing Ms Webb. Ms Webb's evidence is that on the second or third invitation she did in fact accept the invitation out and did so again on a later date. There is no evidence to suggest that Mr Solaja was aware that his conduct was unwelcome and it is clear that Ms Webb never indicated to Mr Solaja that she did not want to go out with him. Accordingly we find that even if Mr Solaja's conduct was unwelcome he would not have been aware of this and that such a belief would not have been unreasonable in the circumstances. The evidence at it's highest is that when Mr Solaja did proposition Ms Webb, he accepted her rejection with good grace and did not ask her out again. Accordingly we find that the allegations against Mr Solaja even if proven would not amount to conduct within the scope of section 22A of the Act. Inappropriate Touching 112 Ms Webb alleges that Mr Solaja poked her and on one occasion grabbed her in a head lock. She states that she had said to him on a number of occasions, "don't touch me, just don't touch me". Mr Solaja denies this part of the claim. Ms Webb does not give a date to these incidents. Mr Solaja in turn denies these events. 113 As Ms Webb was unable to place these events in time the Tribunal can make no findings as to when the events are alleged to have occurred. Accordingly this part of the claim must fail as section 22A and 22B did not commence until 4 July 1997 and Mr Solaja as a fellow employee would not be caught within the scope of sections 24 and 25 prior to that date. "Tight" Comment 114 Ms Webb gave evidence that after the meeting with Mr Solaja and Mrs McLeish on the 25 April 1998 Mr Solaja followed her down the stairs. She claims she said to him, "Do you want me to be nervous and uptight?" and he is alleged to have replied, "it's good to be tight isn't is?" Mr Solaja denies making this comment. Ms Webb asserts that Tony Hoare overheard the comments, however Mr Hoare gave evidence that he did not recall overhearing any such comments. 115 The evidence is equivocal in relation to this part of the claim and there is no reason to prefer the evidence of Ms Webb to that of Mr Solaja. In circumstances where the evidence is equivocal and there is no reason why the Tribunal should prefer the evidence of Ms Webb over Mr Solaja the Tribunal cannot be comfortably satisfied that the events as alleged occurred. Accordingly this part of the claim fails. THE CLAIM AGAINST PETER PANDEL 116 It is submitted that even if we find that Mr Pandel has engaged in conduct amounting to sexual harassment that the applicant has not made out her claim because she has been unable to place these events in time. The provisions of section 22B of the Anti-discrimination Act 1977 dealing with sexual harassment did not commence until 4 July 1997. Mr Pandel denies he asked Ms Webb out socially after March 1997 and it is submitted that as Ms Webb is unable to place these events in time after the commencement of the relevant provision the claim must fail. 117 Ms Webb asserts that Mr Pandel constantly asked her out socially throughout the course of her employment with Newcastle Hire Cars Pty Ltd from June 1997. Despite repeatedly refusing these requests she claims it did not stop so that she started staying off the base between fares rather than resting in the drivers meal room in order to avoid Mr Pandel. She asserts that he constantly telephoned her at home culminating in her disconnecting her home telephone by April 1998. She asserts he touched her constantly despite her repeatedly requesting that he not touch her. She asserts that he put his hand over hers on more than one occasion when she tried to refuel her vehicle. She asserts that he constantly enquired into her private life. 118 Mr Pandel concedes he asked Ms Webb out 5 or 6 times when she first started with Newcastle Hire Cars, however he claims he did not ask her out after March 1997. He concedes he called her at home the day after she went to Mater hospital with a toothache. 119 It was not disputed that Ms Webb had her telephone disconnected around April 1998. She claims that the reason was because Mr Pandel was sexually harassing her with telephone calls at home. 120 Having regard to the totality of evidence before the Tribunal we prefer the evidence of Ms Webb to that of Mr Pandel. The evidence is more consistent with Ms Webb's version of events than that of Mr Pandel. We therefore find that he did continue to call her at home throughout the course of her employment and that as a consequence she had her telephone disconnected. Ms Webb states the purpose of the calls was to ask her out and we find that this is again consistent with the evidence before the Tribunal. Having regard to the evidence before the Tribunal we find that Mr Pandel did continue to ask Ms Webb out after 4 July 1997. We find that this conduct therefore falls within the scope of section 22 B of the Anti-discrimination Act. 121 We therefore find that for the purposes of section 22B of the Act the telephone calls were relevantly made during the period from 4 July 1997 up to some time around March or April 1998 by no later than mid April, a period of approximately 9 to 10 months. 122 The Tribunal finds on the balance of probabilities that the Applicant was subjected to acts of sexual harassment in employment by the respondent Mr Pandel, within the meaning of the Act. Having regard to the evidence given by Ms Webb and Mr Pandel we find the conduct was of a sexual nature. We find that the evidence given by Ms Webb and Ms Edwards clearly discloses that this conduct was unwelcome. The persistent conduct was such that a reasonable person in the circumstances would have anticipated that she would be offended, humiliated or intimidated. 123 Ms Webb claims that Mr Pandel inappropriately touched her throughout the course of her employment. She gives details of specific instances. Mr Pandel concedes that he did touch Ms Webb on some occasions, but only in friendship. He asserts that she never told him not to touch her. The evidence of Ms Edwards supports Ms Webb's claim that she made it very clear that she did not want to be touched. 124 In relation to this part of the claim none of the incidents specified are given a date. As we are unable to identify when the specific incidents occurred we are unable to find that any specific instance of inappropriate touching occurred after 4 July 1997. CLAIM AGAINST NEWCASTLE HIRE CARS 125 Ms Webb seeks orders against Newcastle Hire Cars on the basis that it permitted and condoned the sexual harassment by Mr Pandel and has further failed to take reasonable steps to prevent it. 126 Section 53(1) of the Act provides that an employer will be liable for the acts of their employee which amount to a contravention of the Act, "unless the... employer did not, either before or after the doing of the act, authorise the... or employee, either expressly or by implication, to do the act." 127 Section 109 of the Act provides that the respondent bears the onus to satisfy the Tribunal that it had not authorised the actions of Mr Pandel, either expressly or by implication. 128 The effect of section 53(1) was considered in Shellharbour Golf Course v Wheeler [1999] NSWSC 224 (Shellharbour). Studdert J said: "... as I construe s53(1) once it was established that the misconduct occurred in the workplace environment and the offender was ostensibly at the time acting in the discharge of responsibilities as agent for his principal, what he did was deemed to be done by his principal, unless the conduct was unauthorised by the principal either expressly or by implication." 129 Mr Justice Studdert went on to consider the meaning of the word "authorise" in the context of s53(1) of the Act. He had regard to the decision of University of New South Wales v Moorhouse (1974-75) 133 CLR 1 where the meaning of "authorize" in the setting of s 36 of the Copyright Act was considered. Studdert, J, considered that the word "authorise" should be given a broad meaning, bearing in mind the nature of the Act. Accordingly, he decided that "for the purposes of s 53 the word "authorise" embraces "sanction, approve, countenance and permit". Permission may be inferred from inactivity and indifference where the person sought to be made liable is aware that some particular behaviour may occur." (see Shellharbour para. 58). 130 It is not suggested in the circumstances here that Mr Pandel's conduct was authorised expressly, but rather that Newcastle Hire Cars did not take sufficient stops to prevent such behaviour. 131 The s53(3) defence makes clear that to escape liability the employer must have taken " all reasonable steps to prevent the... employee from contravening the Act." It is therefore not enough for an employer seeking to rely on the defence in s53(3) to claim that it did not explicitly authorise the conduct as it may be shown that it impliedly sanctioned such behaviour by inaction. Did the Respondent Take All Reasonable Steps? 132 We find on the evidence that Newcastle Hire Cars employed 7 full time staff at the relevant period. We further find that on the evidence before the Tribunal Newcastle Hire Cars did have a sexual harassment policy. Evidence was given by a number of staff members including Mr Solaja, Ms McLeish, Mr Tony Hoare and Ms Robertson about their involvement in the development of the policy and its publication in the "portfolio" distributed to all drivers. The evidence disclosed that the policy came into being as a result of requirements to obtain a Comcar contract. The evidence suggests however that many of the staff were not aware of the content or effect of such a policy. 133 There is however no evidence to suggest that Newcastle Hire Cars were aware or should have been aware of Mr Pandel's conduct towards Ms Webb prior to late April 1998. 134 The evidence also leads us to a finding that when Mr Hoare suggested that Ms Webb had been sexually harassed by Mr Pandel, Mr Solaja then arranged a meeting immediately between Ms Webb and Mr Solaja and Mrs McLeish. 135 There is also no disagreement as to what occurred during the meeting on 28 April 1998. Ms Webb concedes that Mrs McLeish assured her that she had the right to feel safe in the work place and that she would "personally take action" if there was any truth in the allegation. Mr Solaja was insistent she discuss such matters. Ms Webb's own evidence is that Mrs McLeish said to her "we can get into a lot of trouble over this". 136 It is also common evidence that Ms Webb was very clear that she did not wish to make a complaint against anybody at Newcastle Hire Cars and did not confirm that she had her telephone disconnected because of Mr Pandel. 137 The issue of favouritism in the allocation of work was also raised and Mr Solaja was clear that he was going to deal with that at the staff members meeting on the following Saturday. Ms Webb did not want this issue raised in public. 138 The evidence of what occurred at the meeting leads us to a conclusion that Ms Webb formed the view that the issue of sexual harassment was going to be publicly discussed at the staff meeting on the following Saturday. We reach this finding because Ms Webb's actions after that point, including seeking advice from the Working Women's Centre and taking a support person to the meeting, appear to be based upon such an impression. We find however, that she formed this opinion not because she was told the issue was to be dealt with at the meeting but rather because she saw the issue of sexual harassment and favouritism as being inextricably linked, as both centred around Mr Peter Pandel. 139 We also accept that Mr Solaja and Mrs McLeish formed a different view of the outcome of the meeting. We find that they were left with a very clear statement by Ms Webb not to pursue the issue. 140 We also accept that as two independent staff members had complained about favouritism in the allocation of work, that this issue, which also involved Peter Pandel, was to be dealt with at the staff meeting. This issue centred around the calling for jobs and the two-way radio procedure. 141 As stated above the case law is clear that it is not enough to wait for a complaint before appropriate action needs to be taken by an employer. An employer's obligation to prevent discrimination, harassment and victimisation does not begin at the time that a formal complaint is made. If however, at the time a formal complaint is made, it is the first time that the employer is made aware that potentially discriminatory, harassing or victimising behaviour has occurred, and the employer takes appropriate and immediate action in response including reasonable steps to prevent contravention of the Act, the employer is more likely to have met the requisite statutory standard to avoid vicarious liability. However, if an employer is made aware informally of potentially discriminatory, harassing or victimising behaviour prior to a formal complaint being made, and the employer takes no action until the formal complaint is made, the fact the employer takes appropriate action in response would not be sufficient to avoid a finding of vicarious liability. 142 The evidence in relation to the circumstances of this matter lead us to a finding that the employer took immediate action upon becoming aware of a potential sexual harassment. The evidence discloses that after the meeting on 30 April 1998 Mr Solaja was at something of a loss as to how to proceed. He said to Mrs McLeish "Now what do I do?" The evidence discloses that the employer did take the matter seriously as Ms Webb's own evidence is that Mrs McLeish assured her that she had the right to feel safe in the workplace and that "we can get into a lot of trouble over this". 143 We find it reasonable that the matter was not dealt with at the staff meeting a few days later on 2 May 1998. We accept that the raising of the issue of sexual harassment at a general drivers and radio operators staff meeting would have been inappropriate and insensitive. We also accept that within a time frame of two days the employer had not had sufficient time to consider how they might appropriately deal with the issue. We would not accept that would have been the end of any obligation on the employers part to deal with the issue, however the circumstances of this matter were that Ms Webb resigned shortly after the meeting of 2 May 1998 without returning to work. On the evidence we do not find that the Respondent's conduct amounted to constructive dismissal of the Applicant. As stated above the Respondent took reasonable steps to deal with the allegations of sexual harassment in the limited time frame available. 144 We therefore find that the First Respondent Newcastle Hire Cars Pty Ltd is not in breach of the provisions of section 53 by failing to take reasonable steps to prevent sexual harassment by Mr Pandel in the workplace. Calendars, poster and magazines 145 The evidence of Ms Webb was that there were "Picture" and "People" magazines in the drivers' meal room. Ms Edwards gave evidence that she had seen these magazines and had also seen "Playboy" magazines. Both Mr Solaja and Mrs McLeish conceded that they had also seen such magazines in the meal room although both stated they had never seen "Playboy". Mr Solaja and Mrs McLeish gave evidence that they did not remove the magazines but left them where they were. 146 There is no evidence as to when the magazines were left in the meal room accordingly we are unable to make a finding that the magazines were left in the meal room after 4 July 1997. Thus we can make no findings that the magazines were left in the meal room in breach of section 22B, nor would such conduct amount to a breach of section 24 and 25 prior to 4 July 1997. 147 There is no dispute that there was a Newcastle Hire Cars Calendar in the Radio Operators Room adjacent to the meal room. The evidence in relation to the positioning of the calendar was very unclear. The evidence indicated that despite the position of the calendar many of the staff were aware of its existence. 148 Ms Webb and Ms Edwards gave evidence that the calendars included pictures of women semi-naked and some with bare breasts. The Respondents denied this. 149 The Respondent produced a calendar from the year preceding the events of this complaint being 1996 and submitted the 1997 and 1998 calendar's would have been similar in nature. The 1996 calendar was a promotional calendar advertising Newcastle Hire Cars Pty Ltd and contained photos of women in a state of semi-dress, in scant underwear in somewhat provocative poses. One photo had a shorts zipper undone. The calendar's for the relevant years were not produced. 150 The Australia Australian and New Zealand Equal Opportunity Law and Practice, CCH Australia Ltd, 2001 at Para 58-250 refers to the book entitled Sexual Harassment in the Workplace (Human Rights Commission, 1991) where the Commission lists examples of sexual harassment in the workplace to include provocative posters with a sexual connotation. 151 The decision of O'Callaghan v Loder & Anor (1984) EOC Para 92-023, the New South Wales Equal Opportunity Commission identified kinds of conduct which could constitute sexual harassment to include the display of obscene material. 152 We note that Newcastle Hire Cars contends that the calendars on display in the radio operators room in 1997 and 1998 were similar in kind to that displayed in 1998. The 1996 calendar was entitled "Hot Bodies". Ms Edwards and Ms Webb both gave clear evidence that they saw women with naked breasts. We have particular regard to the evidence of Ms Edwards. She was very clear in her evidence about what she saw, she also said that she was not particularly offended by it, but conceded that some might be. Having regard to the evidence of Ms Webb and Ms Edwards in conjunction with the evidence that the calendar was similar in kind to that of 1996 we find that the calendar would have been sexually provocative in nature. 153 The Calendars were an annual publication advertising Newcastle Hire Cars. It is not in dispute that such a calendar was in place for the years 1997 and 1998. 154 Ms Webb gave evidence that she felt embarrassed and offended by the calendar especially when people commented upon the calendar in her presence. We accept that this is a reasonable response in the circumstances. 155 We find that by operation of s 53(1) of the Act the respondent employer Newcastle Hire Cars Pty Ltd is liable for the display of sexually provocative calendars in the workplace and that such conduct constitutes a contravention of the Act (s 22B (2).) For the purpose of section 22B we find that such a calendar was on display from 4 July 1997 until the Applicant ceased employment on 4 May 1998. 156 In relation to the poster in the men's toilet cubicle there is no evidence to suggest who put up the poster nor that the employer had any knowledge of the poster prior to Mr Solaja becoming aware of the calendar. The evidence discloses that upon being notified of the poster Mr Solaja immediately removed it. Accordingly the First Respondent is not liable in relation to the display of this poster. Damages 157 As acknowledged by Wilcox J in Hall v Sheiban (1985) ALR 503 at 543, the task of determining the appropriate level of damages in a case of unlawful discrimination is difficult. "...damages for such matters as injury to feelings, distress, humiliation and the effect of the complainant's relationships with other people are not susceptible to mathematical calculation...To ignore such items of damage simply because of the impossibility of demonstrating the correctness of any particular figure would be to visit an injustice upon a complainant by failing to grant relief in a proven item of damage." 158 We find that the sexual harassment to which the Applicant was subjected by Mr Pandel has caused her distress, anxiety and discomfort. The evidence is that the sexual harassment was persistent. Ms Webb gave evidence of the steps she took to avoid intimate contact with Mr Pandel as a consequence of his repeated invitations out including disconnecting her home telephone, and staying off base between fares. Accordingly we find that the appropriate award of damages would be the sum of having regard to the duration of the harassment $8 000. 159 We note that the Applicant gave evidence of embarrassment caused by the calendar she did not complain about the display of the calendar. The calendar was more than a sexually provocative calendar, it was a promotional calendar for the First Respondent. In relation to the actions of the employer by displaying a company calendar of a sexually provocative nature in the work place we find that an appropriate award would be $2 000.

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