Aleksovski v Australia Asia Aerospace Pty Ltd
[2002] FMCA 81
•17 May 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ALEKSOVSKI v AAA PTY LTD | [2002] FMCA 81 |
| HUMAN RIGHTS – Sexual discrimination – sexual harassment – victimisation – dismissal of employee after complaint made – no causal connection found – vicarious liability found – no appropriate systems in place – general damages. |
Human Rights and Equal Opportunity Commission Act 1986 (Cth) s.46PO(3)
Sex Discrimination Act 1984 (Cth) ss. 5, 6, 14(2)(c), 28A, 94, 106
Spencer v Dowling & Anor (1996) EOC 92-851
| Applicant: | LILJANA ALEKSOVSKI |
| Respondent: | AUSTRALIA ASIA AEROSPACE PTY LTD |
| File No: | AZ 258 of 2001 |
| Delivered on: | 17 May 2002 |
| Delivered at: | Adelaide |
| Hearing Date: | 15 & 16 April 2002 2 May 2002 |
| Judgment of: | Raphael FM |
REPRESENTATION
| Solicitors for the Applicant: | Mr Graham Harbord of Johnston Withers |
| Solicitors for the Respondent: | Mr Phillip Young |
ORDERS
I declare that by virtue of s.106(1) of the Sexual Discrimination Act that the respondent has unlawfully discriminated against the applicant in breach of s.28A of SDA.
I order that the respondent pay the applicant the sum of $7,500.00 by way of damages.
I order that the respondent pay the applicant’s costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
AZ 258 of 2001
| LILJANA ALEKSOVSKI |
Applicant
And
| AUSTRALIA ASIA AEROSPACE PTY LTD |
Respondent
REASONS FOR JUDGMENT
Introduction
This application is brought by LILJANA ALEKSOVSKI against her former employers AUSTRALIA ASIA AEROSPACE PTY LTD now known as NAS Services Pty Limited, pursuant to s.46PO(3) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (“HREOC Act”) seeking relief in respect of direct discrimination under s.5 of the Sex Discrimination Act 1984 (Cth) (“SDA”), indirect discrimination under s.6 of the SDA, unlawful discrimination under s.14(2)(c) of the SDA (dismissal on the grounds of sex), sexual harassment pursuant to s.28A of the SDA and victimisation under s.94 of the SDA. The proceedings are brought against her employer pursuant to s.106 of the SDA on the grounds that it is vicariously liable for the actions of its employee, JAMES NATT.
The applicant’s case
The applicant swore an affidavit dated 26 February 2002 and gave evidence in the proceedings. She stated that she commenced employment with the respondent as an administrative assistant on 20 July 1998. The respondent was involved in the maintenance and repair of aircraft and aircraft components. Her workplace was at Export Park, Adelaide Airport. In May 1999 she took on the role of logistics and in April 2000 was appointed to the permanent position of logistics controller, but she still carried out the work of an administrative assistant as well. This included reception duties. The position of logistics controller is contained and defined within a document entitled “Procedures Manual” which is a document that is submitted to the Civil Aviation Safety Authority (“CASA”) for approval. The applicant was the only female employee working at the respondent’s premises at Export Park.
Another employee of the respondent at the premises was James Natt. He worked in an area described as “the wheel bay” and his job description was wheel bay technician. His work consisted of checking and servicing aircraft wheels. The workplace is not large and the applicant came into regular contact with Mr Natt.
The applicant deposes that in September 2000 her partner, one Peter Welsby, who was then the general manager of the respondent, told her that Mr Natt had informed him that he was deeply in love with her. She did not take much notice of this information at the time because:
“I had barely spoken to Natt about any personal matters.”
After Mr Welsby left the employ of the respondent in October 2000 Mr Natt approached her and told her that he liked her and did not want her to leave. She did not speak to him again until the end of that year.
The applicant went on annual leave from 23 December until 19 January 2001. On Monday 22 January 2001 she returned to work and carried out her usual duties. In the afternoon she entered the wheel bay where she was approached by Mr Natt. He asked for the opportunity to speak to her for half an hour alone and suggested that they go back to his place to talk. The suggestion made the applicant uncomfortable and she told Mr Natt that she was in a stable relationship and did not want to go back to his home. She says that he became insistent. She told him she had no intention of meeting him. In cross-examination the applicant said that Mr Natt asked her if her partner had told her about his feelings and she responded that he had but she didn’t want to talk to him about them. The applicant denied saying to Mr Natt that she would get back to him.
The following day she went into the wheel bay again as part of her duties:
“Whilst I was there he approached me in a very angry and agitated state. He said “Are you going to get back to me, or are you going to ignore the issue?” “I told him that there was not an issue to discuss. I said once again that I was in a happy relationship and that was the end of the matter. He said: “I cannot believe you won’t even give me half an hour of your time.” I said: “That’s enough, do not make things awkward between us, we still have to work together.” He then said: “I know why you won’t see me out of work.” I said: “Why?” He said: “You are afraid, you are afraid that if you spend thirty minutes with me you will see me in a different light and fall in love with me.”
The applicant was frightened and shocked by the action of Mr Natt. She said that he then flew into a temper and began an all-out verbal attack on her, telling her that she was responsible for his feelings because she had not told him that she was in a relationship. He criticised her partner. The applicant became very upset and ran away from Mr Natt in tears. At this juncture her superior, Phil Milde, saw her and took her into a nearby office. He tried to calm her down. Mr Natt came along to the office and opened the door. The applicant alleges that Mr Natt tried to force his way into the office but this is not accepted by Mr Milde and denied by Mr Natt. In any event Mr Milde sent Mr Natt away and then told the applicant to go home.
At approximately 1.00p.m. on 23 January the applicant complained about what she considered to be sexual harassment to Jenelle Hawkins, the human resources officer for the holding company of the respondent. Ms Hawkins promised to investigate the matter and to get back to the applicant. She did do this and told the applicant that a meeting had been held with Mr Natt and that Mr Natt had confirmed what the applicant had told Ms Hawkins. Ms Hawkins then arranged for a conciliation meeting between the applicant and Mr Natt and suggested to the applicant that she not return to work until this had occurred.
In fact, Ms Aleksovski did go back to work on 25 January as Mr Natt was not there that day. The conciliation meeting was arranged for 29 January at the head office in the city. The meeting was short. Everyone was rather distressed by the incident. It appeared that Mr Natt had been spoken to at length by Ms Hawkins and his superiors. He made a lengthy apology to the applicant which she felt was unconvincing. After the meeting was over the applicant was told that she could go home and that services of a counsellor were offered to her. She took up this offer and spoke with a counsellor by the name of Donna Harden.
On 30 January Ms Aleksovski called Ms Hawkins and told her that she wished to return to work. Ms Hawkins suggested that before that happened she and Mr Milde ought to meet with the applicant to discuss safety procedures and what action should be taken if Mr Natt repeated his actions. It was agreed that a meeting would be held at 9.00a.m. on 31 January in the office at Optus House in the city for that purpose.
When the applicant arrived for the meeting at Optus House she was called into the boardroom with Ms Hawkins and found in there a Mr Andrew Hutton, the general manager, logistics, of National Jet Systems Pty Limited. He told the applicant that there had been a review of all positions within AAA and then asked Ms Hawkins to take over. She told the applicant that as a result of the restructuring her position was redundant but that she had been asked to find the applicant another position suitable to her skills and experience. A position within the finance department as an accounts payable clerk with National Jet Systems was offered. By this time the applicant was crying uncontrollably. She was told that if she did not take the position she would be offered a redundancy package of six weeks wages plus two weeks in lieu of notice, which had been raised at the request of the managing director, to four weeks. The applicant was asked to make a decision on the spot. The applicant said that she was most shocked by all of this, particularly as she was the only person who had been made redundant. She thought she was being punished because she had reported the incident with Mr Natt. She was given a letter which became Exhibit D to her affidavit. The letter set out the options available to her and said:
“Please be advised that your current status of employment is that of Leave with Full payment and that we are currently in the process of conducting a second interview for the accounts payable position.”
To enable this matter to be finalised and for all concerned to actively move forward, you are requested to inform us of your final decision no later than 1.00p.m. on Friday 2 February 2001.”
The letter was signed by Jenelle Hawkins. The applicant said that she was told that the accounting position, which was an area in which she had no expertise, would be offered to her on a three-month probation period. As she had already been with the respondent for two and a half years she felt that this was not appropriate. After thinking about the offer she declined it and on 2 February received a letter from Mr Nottage, a director of AAA, confirming her redundancy and providing her with particulars of her payout.
The applicant was shocked and distressed by what had occurred. She believed that the redundancy was connected to her reporting the actions of Mr Natt and says that it took her about three months to find a new job. She commenced employment on 7 May 2000 as a receptionist on a gross salary of $27,500.00 per annum which was raised to $29,000.00 on 1 September 2001 and on 1 January 2002 to $30,000.00. She also said that on 6 April 2001 she telephoned the respondent company and a man called Paul Butler answered the phone. She knew Mr Butler as an employee of another company at Export Park. There was later evidence given that Mr Butler had taken on some of her duties as logistics controller.
During the discussions with Mr Natt he had told the applicant that her job was on the line. The applicant had said that this was because she had not attended a Christmas party. She also said that she had mentioned this to Mr Milde and he said that it wasn’t true. She said that Mr Milde said nothing to her about her losing her job and he did not know where Mr Natt had got that information from.
It is the applicant’s case that the actions of Mr Natt and of the respondent described above constitute the various unlawful acts of discrimination referred to in the introduction to these reasons. In regard to the allegation that the respondent was vicariously liable for the actions of Mr Natt the applicant would rely on the cross-examination of witnesses called by the respondent to establish that there were no proper procedures in place to educate employees as to their responsibilities to avoid sexual harassment and to establish that any company policy on the subject had not been made known to the particular employees.
The respondent’s evidence
Peter Nottage
Peter Nottage is the managing director of National Air Support Pty Ltd and a director of the respondent. His affidavit explained the company structure within a group of companies known as “The Jet Systems Pty Limited Group”. He explained that the group had been divided into two divisions of which the respondent company was one. On 1 February 2001 he became the managing director of the respondent.
The witness explained that in October 2000 the then general manager of the respondent, Mr Peter Welsby, was dismissed from his employment. Mr Welsby is the partner of the applicant. A Mr Andrew Hutton was appointed to replace him whilst still holding the position of general manager, logistics, with another company in the group. This company which was known as NJS undertook stores, parts and purchasing functions for AAA. He stated that part of that function was performed internally by the applicant who was also the receptionist for AAA and undertook clerical and accounting functions.
The witness knew of his impending promotion to managing director of the respondent before that promotion took effect and he took advantage of this period to give some consideration to the restructuring of the company. There was tendered through him as Exhibit 1 an e-mail dated 4 January 2001 addressed to Andrew Hutton which stated that he would like to consider outsourcing the entire logistics support requirements to National Jet Systems Pty Limited. The e-mail continued:
“If you can accommodate our requirements could you please advise what manpower would be required and be provided by National Jet Systems. Inevitably this would make Lily’s current position redundant and I would also like to ascertain whether you would have any suitable vacancies within National Jet Systems for her.”
Mr Hutton responded to that e-mail on 12 January advising that NJS was able to accommodate the complete logistics support for AAA but regretting that he did not have any requirement for additional staff in NJS. He did indicate the necessity for handling stores at AAA and said:
“As NJS are relocating there is a necessity for a store person, this would not entail a full time position due to the workload but would require specific requirements to support the current operation. The essential aspects of this position with the above in mind are; suitably qualified store person who could work largely unsupervised.
IAS aware
Forklift qualified
DG trained
Able to work at weekends as required.”
The witness deposed that the exact timing and methodology for implementing the decision to make the applicant’s position redundant was affected by internal enquiries as to whether another position could be offered to her within the group. Such a position was identified some time in January within the NJS accounting department. Mr Nottage decided that the applicant’s redundancy should take effect upon her return from holiday and prior to the commencement of the new general manager of the respondent on 5 February.
Mr Nottage stated in cross-examination that it was not correct that he didn’t decide to dismiss the applicant until after the sexual harassment incident. He repeated that the decision was made to make her redundant as soon as possible and that this had been decided in early January.
Mr Nottage explained the position of Paul Butler who he said was employed by NJS in a multi-role capacity. He said that Mr Butler’s role was different to that of the applicant; he was a casual, he did receipt and dispatch work, and importantly, he was employed by NJS who had undertaken the logistics role for the respondents.
The witness was cross-examined in considerable detail about the existence of the position of a logistics controller in charts in the procedure manual which had to be approved by CASA. His response was that the chart showed responsibilities but did not necessarily show a full time job. He agreed that the functions needed to be performed but he didn’t agree that a dedicated person was needed to perform them. His view was that it was the functions that were important, not the personality. He stated that there was no position of logistics controller after the applicant was made redundant, the tasks were carried out by NJS and in part by Mr Butler who was employed by that company. Later when the business grew the logistics function was boosted and a full time logistics controller was appointed in the July/September quarter of 2001. This was at least six months after the applicant had been made redundant. The new job was not offered to the applicant, although it had been advertised. He believed that she did not have the skills for the new job.
The witness was also cross-examined about other redundancies which occurred in January 2002. On that occasion the respondent company held a staff meeting at which the redundancies and their implications were explained. A letter of explanation was given to each member of the staff, all of whom were interviewed. He stated that in the end there were only two redundancies. The witness agreed that those who were made redundant were given the opportunity to work out their notice. He agreed that this was not an opportunity that had been offered to the applicant. He explained that in most cases people who have been dismissed or made redundant are paid out and asked to leave immediately. The situation that occurred with the respondent company recently was unusual and had much to do with problems obtaining a new CASA certificate. The witness felt that the procedure whereby persons who were no longer being employed were not allowed to serve out their notice was in the best interests of all parties and seriously reduced any risk of sabotage or other mischief from a disgruntled employee.
The witness was placed under quite intense cross-examination about the motive for the applicant’s redundancy. He was firm in his view that the sexual harassment issues had not played a part. He accepted that there were tensions arising out of Mr Welsby’s dismissal but did not accept that the redundancy was due to the actions of Mr Natt. He also denied concocting the redundancy because of sexual harassment. He did not accept that he dismissed the applicant rather than deal with ongoing friction between herself and Mr Natt or dismissed her because of a fear of a recurrence of the incident. He gave evidence that the company had had similar incidents in the past and had been able to deal with the outcome of this one. He believed that there were a range of procedures available which were well understood by the Human Resources Manager.
Andrew Hutton
Mr Hutton is the General Manager, Logistics, of NJS who was appointed Acting General Manager of the respondent whilst a replacement for Mr Welsby was being recruited. He looked into the structure of the business of the respondent in December and identified an opportunity to save costs and improve service levels by outsourcing the respondent’s logistics requirements to NJS. He deposed to raising the opportunity informally with Mr Nottage in about December 2000 and confirmed receipt of the 4 January 2001 e-mail. He responded to the e-mail on 10 January 2001. He confirmed that he had looked for, but was unable to find, an appropriate position for the applicant at NJS.
The witness deposed to meeting Mr Natt on 23 January 2001 and that Mr Natt agreed the facts essentially as put to Ms Hawkins by the applicant. He deposed to the fact that Mr Natt had told him that he was concerned that the applicant was going to lose her job. The meeting with Mr Natt was lengthy, approximately two hours. The witness agreed that the Human Resources Manager, Ms Hawkins should arrange a structured conciliation meeting between Mr Natt and the applicant and that Mr Natt would apologise to the applicant.
When Ms Hawkins advised the witness that she intended to speak with Ms Aleksovski about her return to work, Mr Hutton informed her that he proposed to use that meeting to advise the applicant of her redundancy. He confirmed the applicant’s recollection of what had occurred at the meeting.
In cross-examination the witness said that he knew before the applicant returned from her holiday that she would be made redundant but he also knew that there was a possibility that another job might be found and she would take it. He agreed that he had met the applicant in the corridor and had not mentioned the redundancy to her and he said that he didn’t think that it was appropriate and that something like that should be explained in the proper way.
The witness confirmed that the restructure was discussed with Phil Milde before the applicant returned from her holiday. He thought that he had also spoken to Ms Hawkins before the applicant returned because she was instrumental in trying to find another suitable job for the applicant. It was her who found the job in accounts and this was done prior to 23 January.
The witness explained that the job that was taken up in logistics after the applicant left was a store person’s job. It was not a job for which the applicant was qualified or experienced. For example, the applicant could not drive a forklift truck. He also was of the view that whilst the function of the logistics controller remained, the position did not necessarily do so. The functions were being carried out by NJS and not by the respondents.
The witness said that he discussed his affidavit with Mr Nottage “so there would be no disparity between them in their recollection of events”. He answered “yes” to the question “so you could get your stories straight”. These sound like damning admissions of collusion. I saw the witness in the box as he answered those questions. I am in no way convinced that there was any intent by the witness to do any more than check with the other witness that their recollections were similar, particularly on the question of dates. Nothing that I saw from the demeanour of the witness or the manner in which he gave his evidence would suggest that there was any intent by him to deceive the court.
Mr Hutton said that the applicant was encouraged to take the job in the accounts department whilst thinking of further options. He knew that she was inexperienced but said that the company was willing to make allowances for her in order that she may take that position. He said that the decision to make the applicant redundant at that time was made to save the new General Manager from having to deal with the redundancy, but he would not accept that it was to save the new General Manager from dealing with a problem of sexual harassment.
The advocate for the applicant made much of the failure of the company to allow the applicant to work out her notice.
James Natt
Mr Natt swore an affidavit dated 13 December 2001 in which he confirmed that he had told Mr Welsby about his increasing affection for the applicant in about September 2000. He said that he was shattered by the news that Mr Welsby and the applicant were partners. He said that after Mr Welsby’s dismissal things became difficult for the applicant in the company but that he did not speak to her about these matters or about his feelings for her between October and December 2000. He confirmed that the applicant went on leave in late December and that while she was away there were persistent rumours that she was going to be retrenched.
Mr Natt admitted the incident on 22 January 2001 confirming that he asked the applicant to go to his flat to talk. He said
“It never occurred to me that she would see anything inappropriate or sexual in my suggestion.”
It is his evidence that she said words to the effect of “I’ll think about it” to him concerning his suggestion. This was denied by the applicant. In regard to the incident of 23 January 2001 he says
“I was sitting at my workstation and Lily was standing next to me. I said “Are you going to get back to me or just ignore me?” She again told me that she was in a relationship. I asked her if Peter Welsby had repeated the conversation in which I had told him how I felt about Lily. She said he had. I told her I would never had let my feelings about her reach that point if I had known about her relationship with Peter. This was a statement of fact, not a suggestion that she was to blame for my feelings. I told her I was very concerned about her and I cared about what happened to her.”
The witness confirmed under cross-examination that he then became quite emotional and made disparaging remarks about the applicant’s partner.
The witness under cross-examination agreed that he said words to the effect that he couldn’t understand why the applicant wouldn’t give him half an hour of her time. He said words to the effect that he had fallen in love with the applicant but was trying to get himself out of that. He agreed that he had criticised Mr Welsby and accused him of being a psychotic, a liar and a thief.
This witness essentially confirmed the evidence of the other witnesses as to the conversations which they had with him about these events. He similarly confirmed most of the matters deposed to by the applicant. The witness was asked a series of questions in cross-examination about his intentions towards the applicant. I deduced from his responses that he wished to form a relationship with her, that he had strong feelings towards her and that these included a desire to have sexual relations with her as a natural concomitant of the relationship.
I heard evidence from this witness about the structured conciliation meeting. He agreed that he had been told to apologise to the applicant but he seemed anxious to do so. I have no doubt that the witness was remorseful for what he had done. He said that he had apologised as best he could and that he told the applicant that he did not know what had come over him. He said the whole meeting was very difficult for him but it only lasted about five minutes.
The witness was asked questions concerning the company’s sexual harassment policy and equal opportunity policy. He responded that he assumed the company had a sexual harassment policy but he had not seen a copy of it. He had had no training in sexual harassment issues. Since the issue of proceedings he has been shown the policy but has not been given any formal training. He made his own enquiries as to what was required of him.
The witness was asked about Mr Butler and whether he had taken over the applicant’s job. He responded that Mr Butler had only taken over a portion of the applicant’s duties. He said that the job that she was doing had been divided between Mr Milde and Mr Butler but that Mr Butler had left fairly soon and that after that a full time employee was taken on. This employee did not do the administrative side which was done by Mr Milde. He believed that the current employee was doing more than the applicant had done and that he was more experienced than her. He said that the organisation needed a logistics controller but had not always had one.
Mr Natt was also made redundant by the applicant earlier this year. He was told that the applicant no longer needed a wheel bay but that NJS would pick it up. He then signed on with NJS. He said that most of the people who were made redundant were offered a package and given four weeks notice. He said that as he recalled it two people left on 1 March 2002, one was kept on as a casual and then got another job.
In response to questions from me Mr Natt told me about the rumours he had heard in January 2001. He said that the place was going through a restructure and that the applicant’s job was to be expanded to include things that she was not qualified to do. He had heard that the company would get someone who could do all these jobs and that the applicant would be transferred to another position. I asked him the source of these rumours and he said that Mr Milde mentioned it at a staff meeting in early January 2001. In response to further questions from Mr Harbord the witness gave him the names of the people who were present at the meeting and he said that Mr Milde told the meeting that “Lily would be offered to move to an administration job in the hanger or in town”.
In relation to the witness’ response to questions concerning the replacement for the applicant I took the view that he was not qualified to speak about the company’s internal structures. He was only able to see the external needs. In other words he could see that in the group some logistics support was necessary, but not which company within the group would best carry out that function.
Philip Milde
Mr Milde swore an affidavit on 9 April 2002. His evidence confirmed the evidence of the applicant and Mr Natt that he had come along immediately after the incident on 23 January 2001. In cross-examination he made it clear that he did not accept that Mr Natt had burst into the room where he was talking to the applicant. He thought that Mr Natt had come into the room and had left it immediately after he had been told to do so.
The importance of Mr Milde’s evidence is twofold. Firstly, he confirmed that he was aware of the possible redundancy of the applicant in January 2001 and had discussed it at a staff meeting. He had advised those who had attended that NJS would take over the logistics function and that Lily would lose her position but be absorbed by NJS in another position. He thought that Mr Hutton had given him this information.
Mr Milde confirmed that he had been told about Mr Natt’s feelings for the applicant in about November 2000. He felt that Mr Natt’s private life was his own business and he did not caution him.
In regard to the sexual harassment policy that operated within the workplace, Mr Milde informed the court that he had seen a sexual harassment policy but he had not received any training in respect of these matters whilst in the employ of the respondent. To his mind all sexual harassment matters should be referred immediately to Human Resources. He did not know whether there was a specific contact officer named but he noted that there were no female contacts at the workplace at Adelaide Airport. I gained the distinct impression from this witness’ evidence that he had no wish to become in any way involved in management issues that involved the personal feelings of those people that worked under him. He was not interested in their private lives and he believed that the proper responsibility for matters of this nature lay with human resources personnel who are situated at head office in the city. He did not believe that it was the responsibility of the line manager.
The witness said that the functions of the logistics controller did not stay with the respondents. They were taken over by NJS. Although there is now a new logistics position within the company the applicant was not trained for all those duties. He said that the new position does not do office administration which the applicant used to do and the job was just not the same as hers. He said that Mr Butler reported to NJS and not the respondent.
Finally the witness confirmed that to his knowledge in the past persons made redundant had been required to leave the premises immediately.
Janelle Hawkins
Ms Hawkins was at the material time the senior personnel officer of the National Jet Systems Group. She left the group in January 2002. In her affidavit Ms Hawkins confirmed that she was contacted by telephone by the applicant was who upset and who claimed to have been harassed by Mr Natt. She said that Ms Aleksovski had told her that Mr Natt was trying to interfere in her personal relationship with Mr Welby and he had told her that he loved her. She confirmed the evidence previously given that she investigated the situation with Mr Hutton and met with Mr Natt who admitted that he had told the applicant that he loved her and that he had suggested that they go to his house to talk. She said that Mr Natt told her that he had not made any sexual advances towards the applicant. The meeting lasted for approximately two hours.
Ms Hawkins deposed to explaining the situation to the applicant, that she had arranged for psychological counselling and that she tried to arrange a conciliation meeting which took place on 29 January. Her evidence confirmed what other witnesses had said about the meeting although she was of the view that Mr Natt’s apology appeared to be genuine and appeared to be accepted by the applicant.
The witness stated that on the afternoon of 30 January she was contacted by phone by Peter Nottage who told her that a decision had been made to restructure the logistic arrangements and that as a result the applicant’s position would be made redundant. She said that she was informed that the restructuring had been under consideration for some time and that the problem with Mr Natt did not change the situation. She confirmed the meeting which took place the next day when the applicant was advised of her redundancy. She also confirmed that she had made enquiries on 30 January of the availability of a position for the applicant and had found one in the accounts payable. She said that she had spoken at some length at the phone to the manager in that department and came to the view that the position would suit the applicant. She said it was standard practice in the group to look for alternative positions for persons who were going to be made redundant. She said the general manager of finance agreed that the applicant’s expertise would be beneficial and would be happy to offer her the position if she wanted to come in.
In cross-examination the witness stated that the company had a sexual harassment policy which she helped to revise in 1999. She said that she gave no direct training on sexual harassment but that new employees undertook an induction process which included a talk on sexual harassment. They were given a copy of the policy in writing and asked to sign a form agreeing that they had understood it. She stated that she didn’t recall talking to the applicant about the sexual harassment policy as it would have been done at the induction. Likewise she was unable to say whether Mr Natt had received a copy of the policy. She confirmed that she didn’t conduct any training of either Mr Natt or the applicant during their employment.
The witness said that she considered Mr Natt’s behaviour serious and a breach of the sexual harassment policy. That view was expressed in the final warning given to Mr Natt and signed by Ms Hawkins on 30 January 2001. That document which is exhibit F says the following:
“Whilst your open and honest confessions in regard to the alleged incidents are accepted, this type of behaviour within the workplace cannot and will not be tolerated and is clearly in breach of the NJS Group Policies, in particular the code of conduct, sexual harassment and equal opportunity policies.”
The witness stated that she had not heard about the proposed redundancy of the applicant before being telephoned by Mr Nottage although she had heard rumours. She said that it was quite normal for her not to be informed until a final commercial decision which happened in this case. She said she didn’t know when the decision to make her redundant was made, all she knew was that she was told about it on 30 January. She seemed to think that Mr Hutton made the decision on the 24th. Ms Hawkins also said that the applicant’s position was indeed redundant and that she had a dual role and not just one as the logistics controller. In this regard she said that Paul Butler provided logistics support but she didn’t think that the applicant’s position was replaced.
The witness stated that there had been no group redundancies in her time so she was unable to compare with individual redundancies. She said that individual redundancies were all handled in the same way as the applicant’s. She said that providing the applicant with an opportunity to work out her notice was not standard procedure, that if someone is made redundant and offered another position which she doesn’t take, she is not permitted to work out her notice.
There was considerable discussion of a document which includes the words:
“Document for discrimination
Better off
Conflict of interest
Worse not better
Breach of confidentiality
Organisational restructure timing coincidential”
The note has the words “re Dan Bennett”. It is headed:
“M McGregor”
The witness stated that this was a note of a conversation which she had had with a psychologist, at the counselling service used by the company and she said it related to a Mr Dan Bennett. She was adamant in her view that it did not relate to the applicant.
The witness said that she did not believe that the incident with Mr Natt had anything to do with the decision to make the applicant redundant.
In response to some questions from me about the offer of alternative employment and the cross-examination which followed it the witness stated that she did not believe the applicant was subject to a three month probationary period. She agreed that the applicant was required to sign a new AWA in relation to the job. These were subject to three month probationary periods. However, the probationary period only applied to a person who was new to the position and not someone coming from within the group. The witness said that she thought she had made that clear to the applicant and encouraged her to accept the new position.
Applicant’s submissions
The applicant submits that the respondent has breached s.94(2)(a), (b), (f) and (g) of the SDA. This section describes various circumstances in which victimisation under sub.s 94(1) will have taken place and makes reference to complaints to the HREOC (a), the assertion of rights under the SDA or HREOCA (f) or allegations of unlawful act (g). The applicant submits that this was done in the manner of the applicant’s complaint. She suffered detriment by the termination of her employment.
The applicant submits that Mr Natt breached s.28A SDA and sexually harassed the applicant. The applicant argues that Mr Natt’s conduct was unwelcome conduct of a sexual nature prohibited by s.28A(1)(b) which a reasonable person would have anticipated that the person harassed would be offended, humiliated or intimidated. The applicant submits that there is no doubt that the conduct of Mr Natt offended, humiliated and intimidated the applicant and that her evidence on this matter is plain and corroborated by Mr Milde, Ms Hawkins and by Mr Natt himself. The applicant argues that professing love for a woman, attempting to persuade the woman to spend time with the other person, criticising the woman’s partner and comparing him unfavourably with the person is all conduct of a sexual nature.
The applicant submits that the failure of the respondent to provide a proper system by which employees were continually trained in matters of sexual harassment renders the respondent vicariously liable for the actions of Mr Natt. The evidence given indicated that there was a failure to provide copies of these policies. The evidence given by Ms Hawkins corroborates this failure.
The applicant submits that the respondent breached subsection 14(2)(c) and that this discrimination was exacerbated by the manner of her dismissal.
It is an important part of the applicant’s submissions that the decision to make her redundant after the actions of Mr Natt came to the attention of the company saved the company embarrassment with regard to those actions, particularly when a new general manager was about to take up his position. He would not be required to deal immediately with allegations of sexual harassment in the workplace.
The applicant submits that the actions of the respondent exacerbated the already unsatisfactory attitude which it had taken to her complaints. The applicant submits that her position was not redundant and the redundancy was just an excuse for dismissal.
Finally in breach of s.5(1) of the Act the applicant submitted that the respondent treated the applicant less favourably then it would have treated a person of the opposite sex.
The applicant also made submissions to me as to damages claiming $6,331.79 for past economic loss, $10,000.00 for future economic loss, for what was described as a loss of career opportunity and $30,000.00 for hurt, humiliation and distress.
Respondent’s submissions
The respondent provided me with a helpful outline of written submissions. These submissions commenced with a consideration of whether or not the conduct of Mr Natt amounted to sexual harassment within the meaning of the Act. The respondent concedes that the applicant found the approach made by Mr Natt to be unwelcome. However, it submits that the evidence shows no sexual element to Mr Natt’s behaviour. It is submitted that Mr Natt was concerned about the applicant’s job security and about the effect that her continued personal relationship with her former boss, Peter Welsby, might have on her continued employment. It is submitted that Mr Natt did not ask for sex, he did not touch or look at the applicant in a sexual way. Nothing in the conversation which Mr Natt did have with the applicant suggested a sexual advance, a request for sexual favours or other sexual conduct. The respondent submits that it is not how the applicant construed Mr Natt’s conduct that is the test but whether the court construes the conduct as being “of a sexual nature”.
The respondent argues that as the sexual element is entirely absent from the conduct complained of by the applicant, a reasonable person, having regard to all the circumstances, would not have anticipated that the person harassed would be offended, humiliated or intimidated. But the respondent goes further. It says:
“The reasonable person would have regard to the fact that the applicant, as observed in the witness box, is a confident, intelligent and articulate woman. She is a woman who has handled the inherent difficulties in having a personal relationship with the general manager of her employer. She is a woman who had sustained that relationship, and her employment, following the termination of the general manager’s employment due to allegations that he had defrauded the employer…
The respondent submits that the applicant’s response was coloured by her relationship with her former boss and the situation at the time in a manner which would not have been anticipated by the reasonable person.”
The respondent submits that it is not vicariously liable for the acts of Mr Natt if it is established that it took all reasonable steps to prevent the conduct complained of. It then refers to the applicant’s AWA and in particular pages 6, Principles of the Employment Relationship, page 9, Grievance Procedure, and page 11, Discrimination and Harassment. The employer submits:
“This is not a matter where an employer has turned a blind eye to a culture of sexual harassment, or failed to act appropriately in response to an employee complaint. It is not a matter where a supervisor has harassed an employee and blocked any avenues of redress. There was nothing in Natt’s history to suggest that he might sexually harass any employee, or that he needed training or guidance on such matters.”
In relation to discrimination under s.5 of the Act the respondent argues that Mr Natt did not treat the applicant less favourably than in the circumstances he would have treated a person of the opposite sex to the applicant. The reason for this was that Mr Natt was purely seeking to have a quiet discussion with the applicant on a matter of concern to her, namely her future employment. He would have treated a male person in the same position as the applicant (who he had been told was likely to be made redundant) in the same way.
The respondent deals between paragraphs 11 and 20 of its submissions with the claims of victimisation. Its submission is simple. It says that the decision to make the applicant redundant was made in January before she returned from her holiday. It had nothing whatsoever to do with the actions of Mr Natt which occurred after she had returned and that the restructure upon which the decision was based was a genuine restructure intended to assist with the financial health of the company. The fact that her position remained in the manuals was irrelevant. The fact that someone undertook some of her duties for a period of approximately six months when a full time person was appointed is also irrelevant because those duties were being carried out by another company to whom they had been assigned. The respondent points to the fact that the employer was prepared to offer the applicant continuing employment with another company within the group but that she declined to accept this:
“Finally the applicant did not initially complain of sexual harassment at all. She complained that she had been upset and frightened by Natt, and in particular his derogatory comments towards her partner… The matter only became a sexual harassment complaint after the termination of the applicant’s employment when she lodged a formal complaint with the HREOC.”
In relation to compensation the respondent submits that no order for compensation should be made as the applicant does not seek compensation for harassment in the attachment to her Information Sheet. If this is not accepted by the court the respondent considers the award should be at the very lower end of the scale for such awards as:
“The applicant was not asked, pressured or forced into any sexual activity, she was not touched…”
In regard to the termination of the applicant’s employment the respondent says:
“It is submitted that the most that could be found is that the termination was brought forward by a few days, or alternatively that the applicant was paid in lieu of notice instead of being required to work out her notice period. In those circumstances compensation for loss of income should be a limited to a few days pay in the first case, or nothing in the latter.”
The respondent provided an alternative calculation for loss of earnings.
Findings
There is not, in this case, very much dispute between the parties as to the facts which occurred. It is the interpretation of those facts and a consideration of whether the facts as found constitute breaches of the Sex Discrimination Act that is the major task before the court.
I find that Mr Natt approached the applicant on two occasions, firstly on Monday 22 January 2001. I find on that occasion Mr Natt asked her to go back with him to his home for a discussion. I find that after the applicant declined to do this Mr Natt became insistent and asked her whether her partner had told her about his feelings for her. I find that she told him that she did not wish to discuss those matters with him and did not say to him that she would get back to him. I find the incident upset and disturbed her.
I also find that a further incident occurred the next day. I find that during the course of this discussion Mr Natt again pressed the applicant to spend time with him and did suggest that if she did so she might change her views about him. I find that when the applicant refused to do this Mr Natt flew into a temper and began to criticise the applicant’s relationship with Mr Welsby and Mr Welsby personally. I find that there were references to the applicant’s relationship with Mr Welsby and its effect on a possible relationship with Mr Natt. I find that Mr Natt did think that he was in love with the applicant and had some emotional tie to her. I find from his evidence that Mr Natt hoped to form a relationship with the applicant and that sexual relations were a natural concomitant of that situation. I make these findings because I accept the evidence of the applicant and because none of these matters were strongly disputed by Mr Natt. Indeed many of them were admitted.
The test which must be applied to the respondent’s conduct is objective. It is not what he thought he was doing but what a reasonable person in the place of the applicant might think he was doing. This test is independent of the statutory test set out in s.28A which deals with the effect of the conduct upon the person allegedly harassed. I am of the view in professing his love for the applicant, in suggesting they discuss matters at his home, in referring to the applicant’s relationship with her partner and most of all in repeating all these things the following day and getting into a temper and becoming agitated when the applicant refused to do as he wished constituted unwelcome conduct of a sexual nature.
In Spencer v Dowling & Anor (1996) EOC 92-851 the Full Bench of the Supreme Court of Victoria considering the Equal Opportunity Act 1984 (Vic) in which the definition of sexual harassment was not the same as the one with which this case is concerned, found that declarations of love contained in love letters and cards could constitute sexual advances. Hayne J said:
“Taken as a whole, the letter of 4 January is a declaration of love by a man for a woman and it may therefore be thought probable that it has at least some resonance of sexuality. But is every declaration of love to be characterised as a sexual advance? If it is, it would seem to follow that had the respondent said no more than “I love you” to the complainant it could probably be said to be a sexual advance. That appears to stretch the meaning of “sexual advance” beyond ordinary useage of the term. However, as I say, the question of one of facts and degree.”
There was more in this case than Mr Natt merely saying to the applicant that he loved her.
I would also find that a reasonable person, having regard to all the circumstances, would have anticipated that the applicant would be offended, humiliated or intimidated by the actions of Mr Natt. In this regard I place considerable emphasis on the fact that Mr Natt repeated his conduct over two days when he knew that the applicant understood his conversations to have some sexual connotation which she was unwilling to accept. This had been made clear on the first day.
Having concluded that Mr Natt was guilty of sexual harassment I have to consider whether the respondent is vicariously liable for his actions. Section 106 of the SDA is in the following form:
106(1) [Unlawful Act of Employee or Agent]
Subject to sub-s(2), where an employee or agent of a person does, in connection with the employment of the employee or with the duties of the agent as an agent:
(a)An act that would, if done by the person, be unlawful under Division 1 or 2 or Part II (whether or not the act done by the employee or agent is unlawful under Division 1 or 2 of Part II; or
(b)An act that is unlawful under Division 3 of Part II this Act applies in relation to that person is if that person has also done the act.
106(2) [Exception]
Sub-s(1) does not apply in relation to an act of a kind referred to in paragraph 1(a) or (b) done by an employee or agent of a person if it is established that the person took all reasonable steps to prevent the employee or agent from doing acts of the kind referred to in that paragraph.
It is generally accepted that “all reasonable steps” in connection with sexual harassment in the workplace means that the employer is required to have a policy in relation to sexual harassment which should be clear and placed in written form and communicated to all members of the workforce. But in addition to that it is generally considered that continuing education on sexual harassment should be undertaken. The respondent in its submissions refers to the applicant’s AWA which is exhibited to her affidavit. In particular it refers to page 6 “Principles of Employment Relationship”, page 9, “Grievance Procedure” and page 11, “Discrimination and Harassment”. Page 6 contains the following:
“What are the principles of the employment relationship between you and us
-Treating each other with mutual trust, respect and integrity…”
Page 9, “Grievance Procedure” says:
“What do you do if you have a concern or grievance regarding your employment with us?
It is important that you and we commit to the following procedure to resolve workplace concerns or disputes if and when these arise. The following procedure must be followed.”
There follows several dot points none of which appear to me to be irrelevant to a situation of sexual harassment.
On page 11 there appears the following:
“What is the company’s position on harassment in the workplace?
We will make every effort to ensure that your workplace is free from all forms of harassment. We have established a sexual harassment policy and a network of sexual harassment contact officers to facilitate the achievement of this objective and to ensure that your views or concerns are properly dealt with.”
I was not provided with a copy of the sexual harassment policy. The respondent had an opportunity to do this in the evidence of Ms Hawkins who said it was part of the firm’s induction. The evidence of Mr Milde and Mr Natt is that they did not recall receiving these documents and received no training. The other references in the AWA do not constitute action.
I note that the applicant was the only female member of the workforce in the Export Park premises. No special arrangements were made because of this.
I find that there was no system in operation for ensuring that the company’s equal opportunity policies and policies on sexual harassment were disseminated to the workplace. I find that the policies were not known to Mr Natt. Whilst I cannot say what the result of giving Mr Natt such training might have been, it could have prevented the incident. The failure to thoroughly set out appropriate guidelines and provide appropriate training would to my mind make the respondent vicariously liable for the actions of the employee.
I am satisfied that in the circumstances the respondent did not take all reasonable steps and thus come within the exception of s.106(1).
In making these comments I feel that I should say that I believe that the actions taken by the company after they learnt of what had occurred to the applicant, particularly the steps taken by Ms Hawkins were appropriate both as regard the applicant and Mr Natt. I do not believe that the company can be criticised on this count. This, of course, excludes consideration of the dismissal which I deal with next.
I find that there is clear evidence that it was the company’s intention to dismiss the applicant for reasons of redundancy prior to the activities of which she complains in these proceedings. I am satisfied from the evidence that there were emails exchanged between Mr Hutton and Mr Nottage as early as 4 January. There is evidence from Mr Milde that he knew that the applicant’s job was to be phased out before she returned from holiday and Mr Natt had also heard something of the kind. Even Ms Hawkins recalls rumours about the applicant’s position. I am unable to go against the weight of this evidence and conclude that the applicant was dismissed because of her complaint. However, I prefer Ms Hawkins’ evidence to that of Mr Hutton in so far as the date upon which she was told about the redundancy. I find the new job search only occurred on 30 January.
Section 8 SDA allows me to find discrimination even where an act is done for two or more reasons and whether or not the discriminatory reasons is the dominant or substantial reason for doing the act. I am not satisfied that it was. I am satisfied that Mr Nottage, the incoming managing director, wanted to make an immediate attack on the bottom line of the company he was taking over. Mr Hutton had suggested this could be done by assigning the logistics function carried out by the applicant to another company within the group. This was done and the applicant’s non-logistics duties were taken over by Mr Milde. It was unfortunate, but coincidental, that the decision was made at the same time as the applicant had made her justifiable complaints against the conduct of Mr Natt.
The applicant made much of the fact that the position was not really redundant. She says this was because the functions of a logistics controller were still carried out. To a certain extent this is the case although all the witnesses indicated that what the replacement employee was doing was different from that which the applicant did. The evidence also was that the replacement employee worked for another company, albeit within the group. If a company decides to sub-contract the cleaning of its factory to a cleaning company then the position of its employed cleaner becomes redundant even though the functions of that employed cleaner are carried out by some other person. They are not carried out by the company. This is what I believe occurred at AAA.
The applicant also felt that she was being discriminated against by the failure of the company to allow her to work out her notice. I am satisfied from the evidence of Mr Nottage, Mr Milde and Ms Hawkins that it was company policy that persons who are dismissed by reason of redundancy are not generally permitted to work out their notice. I accept that there are good corporate reasons for this approach which minimises possible conflict in the workplace, possible sabotage and possible reduction of morale in the remaining workers. I do not believe that the situation of the applicant is comparable with the situation that was described when a number of workers were made redundant recently. There appeared to be special reasons associated with obtaining a CASA Certificate that required these persons to continue working for a period, and in any event, it is my recollection of the evidence that only one of the four persons actually left the group employment. Mr Natt himself was one of those persons made redundant but his position was transferred to another company within the group.
The company also made some effort to offer the applicant another position. I was impressed by the evidence of Ms Hawkins in this regard. The applicant says that the employment was offered to her on the basis of a three month trial period. I can understand why she might not wish to accept that. Ms Hawkins denies that this was a condition of the employment. My assessment of the situation from hearing both witnesses is that possibly the applicant misunderstood the offer probably because she was understandably upset. Perhaps the company could have made more of an effort to persuade her to remain in the new position. But as I have found that the events surrounding her dismissal were not connected with the sexual harassment these proceedings are not the proper place in which to consider those issues.
It follows from the above that I dismiss the applicant’s claims of victimisation.
Damages
Because I have not been able to find any causal connection between the applicant’s dismissal and the sexual harassment constituted by the actions of Mr Natt I am unable to make any award of damages in respect of economic loss. The award which I make for general damages for hurt and humiliation must be made in the context of the actions of Mr Natt isolated from those of the company in dismissing the applicant. I do not accept the submissions of the respondent on the subject matter of damages which I have set out in these reasons. In fact, they might be taken by some persons to exacerbate the feelings of hurt and humiliation the applicant feels. I am prepared to accept that the applicant was seriously affected by the conduct of Mr Natt. But it must also be said that the applicant’s experiences were not as traumatic as those of many people who come before this court making allegations of sexual harassment. Each case must be considered on its individual merits. In this case I am of the view that an appropriate award of damages is $7,500.00.
The applicant has substantially succeeded in her claim. She should be entitled to her costs. I order that the respondent pay the applicant’s costs pursuant to Part 21.10 of the Federal Magistrates Court Rules and I certify that it was reasonable for the applicant to employ an advocate pursuant to Part 21.15 of those Rules.
I certify that the preceding one hundred and three (103) paragraphs are a true copy of the reasons for judgment of Raphael FM
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