Borg v Commissioner, Department of Corrective Services & Anor

[2002] NSWADT 42

CITATION:	Borg v Commissioner, Department of Corrective Services & Anor [2002] NSWADT 42
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Josephine Borg FIRST RESPONDENT Commissioner, Department of Corrective Services SECOND RESPONDENT John Wheeler-Smith
FILE NUMBER:	001008
HEARING DATES:	19/03/01 - 23/03/01, 26/06/01, 27/06/01
SUBMISSIONS CLOSED:	06/27/2001
DATE OF DECISION:	03/26/2002
BEFORE:	Goode P - Judicial Member; Nemeth de Bikal L - Member; Farmer L - Member
APPLICATION:	Race Discrimination - In work - Sexual Harassment - In workplace - Victimisation
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Public Sector Management Act 1988
CASES CITED:	Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362 O'Callaghan v Loder [1985] 3 NSWLR 89 M v R Pty Ltd (1988) EOC 92 - 229 Shellharbour Golf Club v Wheeler [1999] NSW SC 224 Samuels Real Estate v Lamb & Anor (1998) EOC 92 - 923 University of New South Wales v Moorhouse [(1974-75) 133 CLR 1] Bogie v The University of Western Sydney (1990) EOC 92 - 313 Shaikh v Commissioner, NSW Fire Brigades (1996) EOC 92 - 808 Bhattacharya v Department of Public Works (1984) EOC 92 - 117 Waters v Public Transport Corporation (1991 - 92) 173 CLR 349 Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165 Waterhouse v Bell (1991) 25 NSWLR 99 Hill v Water Resources Commission (1985) EOC 92 - 127 Reddrop v Boeringer Ingleheim Pty Ltd (1994) EOC 92 - 031 D v Berkeley Challenge Pty Ltd [2001] NSWADT 92 Hall v Sheiban (1985) ALR 503
REPRESENTATION:	APPLICANT R Beech-Jones, barrister FIRST RESPONDENT E Brus, barrister SECOND RESPONDENT A Wozniak, solicitor
ORDERS:	1. In relation to the claim of sexual harassment, we order that the First and Second Respondents pay the Applicant within 21 days general damages in the sum of $27,500; 2. In relation to the claim of race discrimination, we order that the First and Second Respondents pay the Applicant within 21 days general damages in the sum of $7,500; 3. In relation to the claim of victimisation, we order that the First Respondent pay the Applicant within 21 days general damages in the sum of $12,500.

1 Mrs Borg is of Maltese origin. She currently works as a First Class Correctional Officer with the Department of Corrective Services ("the Department"), having commenced her employment on 19 December 1988.

2 On 11 February 1999, she lodged a complaint with the Anti-Discrimination Board ("the Board") alleging that she had been sexually harassed, discriminated against on the ground of her race and victimised. She nominated Senior Assistant Superintendent Wheeler-Smith (the Second Respondent) as the person who had sexually harassed her and made racist remarks to her. She alleged that at the relevant time, both she and Mr Wheeler-Smith were working at Mulawa Correctional Centre ("Mulawa").

3 Her complaint was lodged outside the 6 month period specified in s 88(3) of the Anti-Discrimination Act 1977 ("the Act"). However, good cause having been shown for the delay, the President of the Board exercised his discretion to accept the complaint out of time pursuant to s 88(4) of the Act.

4 Before complaining to the Board, Mrs Borg submitted a formal written complaint to the then Governor of Mulawa, Mr Campbell, on 18 December 1997 alleging that Mr Wheeler-Smith had made racist remarks to her and that he had, in effect, also sexually harassed her (Exhibit F, Annexure B).

5 Mr Campbell and his deputy, Mrs Leyshon, subsequently interviewed Mrs Borg on 19 December 1997. She indicated that she wanted a written apology in relation to both the alleged racist remarks and the alleged sexual harassment.

6 Later that day, Mr Campbell and Mrs Leyshon advised Mr Wheeler-Smith of the allegations. He said he was prepared to verbally apologise to Mrs Borg in relation to certain alleged racial remarks but not in relation to the alleged sexual harassment.

7 Subsequently, on 30 December 1997 Mrs Borg informed Mr Campbell that she wanted the matter to go to an outside party and that she wanted departmental action taken against Mr Wheeler-Smith. (See Mr Campbell's memorandum of 6 January 1998 to Ms Parmeter, Professional Standards Unit, Exhibit F, Annexure C.)

8 In due course, Senior Assistant Commissioner, Mr Woodham, appointed Superintendent Quinn of the Inmate Movements Section to conduct an investigation into Mrs Borg's allegations. She interviewed Mrs Borg on 17 March 1998 and Mr Wheeler-Smith on 29 May 1998. Other officers interviewed were:

• Mrs Leyshon
• Mr Warwick, a Senior Assistant Superintendent who held the position of Staff Officer at Mulawa from 1996 - 1998
• Ms Evans and Mr Sinclair, Senior Correctional Officers working at Mulawa at the time in question.

9 Ms Quinn's report of 14 June 1998 was subsequently forwarded to the Professional Standards Unit. She recommended that disciplinary action be commenced against Mr Wheeler-Smith in relation to the alleged racist comments and the alleged sexual harassment.

10 On 31 July 1998, Mr Woodham directed that the Governor of the John Morony Correctional Centre, Mr Peterson, conduct a preliminary inquiry into the above allegations. After interviewing Mrs Borg, Mr Wheeler-Smith, Mr Warwick, Ms Evans and Mr Sinclair, on 30 November 1998 Mr Peterson recommended that the Department proceed with the following charges against Mr Wheeler-Smith:

• That on or about 13 December 1997, at Mulawa, he did harass Mrs Borg by saying words to the effect, "why can't you speak English", and "Borgy why don’t you go and learn how to speak English, you are in Australia now, not in your country, so forget your language and start learning English".
• That sometime in 1997, at Mulawa, he did sexually harass Mrs Borg by saying to her words to the effect, "you Borgy, every time you answer the phone and talk to me I get a hard on".

11 Mr Woodham formally advised Mr Wheeler-Smith on 16 December 1998 that he had been charged with having committed two breaches of discipline within the meaning of s 66(1)(b) of the Public Sector Management Act, 1988 ("the PSM Act"), namely that he engaged in misconduct. Particulars of the breach were given in accordance with Mr Peterson's recommendations in para 10 above (see Letter of Charge, Exhibit C, page 81).

12 On 9 February 1999, Mr Woodham formally notified Mr Wheeler-Smith of his finding that the two disciplinary charges had been substantiated within the meaning of s 66(1)(b) of the PSM Act and that the appropriate punishment was a letter of reprimand and a formal direction that he attend a one day Harassment Prevention Seminar conducted by the Board (see Notice of Decision, Exhibit C, page 8). Mrs Borg was advised of Mr Woodham's decision on 25 March 1999.

13 In her letter of complaint to the Board, received on 11 February 1999, Mrs Borg briefly refers to other alleged incidents of sexual harassment. She makes it clear that her claim of sexual harassment is far broader than the one incident investigated by the Department. Her letter of complaint to the Board also suggests that her claim of racial discrimination is wider than the one incident of racial discrimination investigated by the Department (see Exhibit 1, Tab 1).

14 In her letter of complaint to the Board, Mrs Borg also makes reference to an application she made in December 1997 for promotion to the rank of Senior Correctional Officer ("Three Stripes"). She states that, if successful, this would have given her greater opportunities for salary increases and promotion within the Department. She was interviewed for the position on 31 March 1998 but was not successful. She subsequently appealed to the Government and Related Employees Appeal Tribunal ("GREAT"). Her appeal was dismissed on 30 September 1998.

15 Mrs Borg claims that her performance at the interview, and her ability to obtain a promotion (both at that time and later), was affected by the alleged conduct of both the First and Second Respondents, the long-term effect of which was to undermine her confidence in herself and remove her desire to seek promotion. This is denied by the First Respondent and Mr Wheeler-Smith. As we understand Mrs Borg's case, the loss of promotional opportunities is relevant only to the question of relief.

16 It is common ground that from mid 1997 onwards, Mrs Borg wished to transfer out of Mulawa to John Morony Correctional Centre. However the reasons for the transfer, and the circumstances surrounding it, are very much in issue. Mrs Borg was not transferred to John Morony until 15 May 1998. She claims that the alleged delay in transferring her constitutes victimisation and / or indirect sex discrimination. This is denied by the Department.

The Applicant's Case

Sexual Harassment

17 In relation to the allegations of sexual harassment, we note that the Act was amended on 4 July 1997 to expressly include sexual harassment as a ground of unlawful conduct (ss 22A and 22B of the Act). Prior to the amendments, sexual harassment was caught by the sex discrimination provisions of the Act (ss 24 and 25).

18 In the present case, the alleged incidents of sexual harassment occurred both prior to and after 4 July 1997. In relation to the alleged incidents which occurred after 4 July 1997, it appears that Mr Wheeler-Smith could be personally liable under s 22B(2) without there being a corresponding requirement to find the First Respondent liable.

19 It is Mrs Borg's case that from mid 1996 to December 1997, Mr Wheeler-Smith sexually harassed her on many occasions during the course of her employment at Mulawa. In doing so, it is alleged that the First Respondent sexually harassed her within the meaning of s 22B(1)(a), and that the Second Respondent sexually harassed her within the meaning of s 22B(2) of the Act.

20 It is further alleged that by sexually harassing her, the First and Second Respondents unlawfully discriminated against her on the ground of her sex pursuant to s 25(2)(a), in the conditions of employment afforded to her, and / or pursuant to s 25(2)(c) of the Act, by subjecting her to a detriment.

21 Mrs Borg alleges that the First Respondent is liable for the conduct of Mr Wheeler-Smith, by virtue of the operation of s 53 of the Act and / or the common law. She further alleges that Mr Wheeler-Smith caused, instructed, induced or aided the First Respondent to unlawfully discriminate against her on the ground of her sex within the meaning of s 52 of the Act.

Race Discrimination

22 It is Mrs Borg's case that on two separate occasions in 1997, Mr Wheeler-Smith made comments of a racial nature to her during the course of her employment at Mulawa. It is alleged that both the First Respondent and Mr Wheeler-Smith unlawfully discriminated against her on the ground of her race pursuant to s 8(2)(a), in the conditions of employment afforded to her, and / or pursuant to s 8(2)(c) of the Act, by subjecting her to a detriment.

23 Mrs Borg alleges that the First Respondent is liable for the conduct of Mr Wheeler-Smith, by virtue of the operation of s 53 of the Act and / or the common law. She further alleges that Mr Wheeler-Smith caused, instructed, induced or aided the First Respondent to unlawfully discriminate against her on the ground of her race within the meaning of s 52 of the Act.

Victimisation

24 It is Mrs Borg's case that by delaying her transfer to John Morony Correctional Centre, the First Respondent subjected her to detrimental treatment in breach of s 50(1)(c) of the Act, on the ground that she had made a complaint alleging that Mr Wheeler-Smith had sexually harassed her and made racist remarks to her.

Indirect Sex Discrimination

25 Mrs Borg also alleges that by delaying her transfer, the First Respondent imposed a requirement or condition on her, being the absence of a sexual harassment complaint, in contravention of s 25(2)(b):

• with which a substantially higher proportion of men than women were able to comply (in that more women than men lodge sexual harassment complaints),
• being a requirement which was not reasonable having regard to the circumstances of the case, and
• with which Mrs Borg was not able to comply.

(See s 24(1)(b).)

The Case for the First Respondent

26 The First Respondent does not deny that Mr Wheeler-Smith sexually harassed Mrs Borg in the manner alleged or that he made the alleged racist remarks to her. It denies, however, that it is liable for his conduct in any of the circumstances alleged. Relying on s 53 of the Act, it expressly denies that it either expressly or impliedly authorised Mr Wheeler-Smith's conduct, and maintains that it took all reasonable steps to prevent Mr Wheeler-Smith from contravening the Act.

27 In relation to the victimisation claim, it denies that the alleged circumstances of the delay in transferring Mrs Borg to John Morony contravene s 50(1)(c). It further denies that the alleged circumstances contravene s 25(2)(b) of the Act.

The Case for Mr Wheeler-Smith

28 Mr Wheeler-Smith denies that he ever sexually harassed Mrs Borg. He also denies that his alleged racial remarks to Mrs Borg on 13 December 1997 amount to unlawful race discrimination. He further denies that he made any other comments of a racist nature to Mrs Borg.

Standard of Proof

29 In determining whether Mrs Borg has established her case, we have applied the civil standard of proof. However, in doing so, we have taken into account the gravity of the allegations and the serious consequences of any adverse findings to the Respondents. See the remarks of Dixon J (as he then was) in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362. See also O'Callaghan v Loder [1985] 3 NSWLR 89.

30 We propose to deal with the relevant provisions of the Act, the evidence and our findings in respect of each of the claims in turn below.

SEXUAL HARASSMENT

Relevant Provisions of the Act

31 Section 22A provides:

"Meaning of "sexual harassment"

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 offended, humiliated or intimidated. "

32 Section 22B relevantly provides:

"Harassment of employees, commission agents, contract workers, partners etc

(1) It is unlawful for an employer to sexually harass:

(a) an employee, or

(b) a person who is seeking employment with the employer.

(2) It is unlawful for an employee to sexually harass a fellow employee or a person who is seeking employment with the same employer.

. . ."

33 Sections 24(1)(a) and 24(1A) relevantly provide:

"24 What constitutes discrimination on the ground of sex

(1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of sex if, on the ground of the aggrieved person's sex . . . , the perpetrator:

(a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of the opposite sex . . .
(1A) For the purposes of subsection (1)(a), something is done on the ground of a person's sex if it is done on the ground of the person's sex, a characteristic that appertains generally to persons of that sex or a characteristic that is generally imputed to persons of that sex."

34 Section 25(2) of the Act provides:

"25 (2) It is unlawful for an employer to discriminate against an employee on the ground of sex:
(a) in the terms or conditions of employment which the employer affords the employee,

(b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or

(c) by dismissing the employee or subjecting the employee to any other detriment."

35 Mrs Borg gave evidence that she first met Mr Wheeler-Smith at Mulawa in 1995 and that in his capacity as a "Senior Assistant Superintendent", he was often Acting Deputy Governor when Mrs Leyshon was away. She said she worked in the reception area of Mulawa in 1996 before working as Mrs Leyshon's Clerk in the first half of 1997 and at the Gatehouse in the second half of 1997. According to her evidence, she saw Mr Wheeler-Smith on a regular basis.

36 She said that from mid 1996 onwards she became increasingly uncomfortable in his presence. She recalled that he would often make crude jokes or comments that she did not completely understand but which she thought were sexual in nature. She said that towards the end of 1996 these comments became very distressing to her and made her feel very uncomfortable, and that thereafter, until approximately September 1997, he regularly said to her the following words and other similar words:

• "I love to hear your voice.
• You are looking very sexy today.
• I don’t like pants on you, why don’t you wear a skirt.
• You don’t look your age.
• You are looking beautiful today.
• When you are cranky, you look so beautiful.
• Have you had a good night last night?
• I am getting a hard on.
• I love you when you blush.
• Don’t wear those pants, I don’t like them on you.
• You know where to find me."

37 Mrs Borg said that she never encouraged Mr Wheeler-Smith to make these comments and that when he first started making them, she would not say anything. Instead she tried to get away from him. Over time, particularly when she worked at the Gatehouse, she said she responded by telling him to "shut up" (or words like that), and walking away. She recalled that after she said this, on a few occasions he would not say anything offensive when she saw him but then he would resume making the comments.

38 She said that on one occasion when she was standing working at a computer on a bench in the reception area, Mr Wheeler-Smith came up behind her, put his hands on her shoulders and said:

"You're having a hard day today . Did you have sex last night?"

She turned around, resulting in him taking his hands away, and said:

"What's that got to do with this?"

She then walked away into another room. At the time, he laughed and said:

"I hope you had a good day."

39 She also said that on about two or three occasions when she was working as the Deputy Governor's Clerk, he approached her from behind and placed his arm on her shoulders. She immediately walked away.

40 She said she recalled that in about September 1997 when she was working at the Gatehouse, Ms Evans was making coffee nearby in the visitors' area of the same building. She said she could not see Ms Evans from where she was sitting. Mr Wheeler-Smith came into the Gatehouse and said to her,

"How are you doing?"

She replied:

"All Correct Sir" (This was a formal way of speaking to a superior officer in the Department).

He said,

"It's quiet in here",

to which she replied,

"Yes, it is."

He then said,

"You're quiet, what's wrong?"

to which she said,

"Nothing".

She said she recalled that he put his hands on her shoulders and said,

"Every time I see you and talk to you on the phone I get a hard on."

She said that when she stood up Ms Evans came out of the coffee area and said to Mr Wheeler-Smith,

"Why are you talking to her like that?"

He replied,

"She didn’t understand anyway".

41 After Mr Wheeler-Smith had walked away, she said Ms Evans said to her,

"Why do you let him talk to you like that?"

to which she replied,

"I have to tell someone about it."

She said Ms Evans explained to her that he was referring to his penis getting hard.

42 Mrs Borg said that Mr Wheeler-Smith had previously made similar comments to her which had embarrassed her. Although she wasn't completely sure what they meant, she gathered they were sexual in nature.

43 She said that on the day of the incident described in paras 40 and 41 above, she was very upset and went to see Mr Warwick, the Staff Officer at the time. After describing the incident, she said,

"I've had enough of him",

to which Mr Warwick replied,

"Do you want to put it on paper?"

She said she responded by saying,

"No, I don’t like to put officers on paper especially an SAS [Senior Assistant Superintendent]."

After being asked what she wanted to do, she said,

"Nothing, I just don’t know what to do."

44 According to Mrs Borg's evidence, Mr Warwick then walked across the corridor to Mrs Leyshon's office and said,

"Guess what Peter said to Josephine?"

and then told her what had happened. She said Mrs Leyshon replied,

"That's not very nice is it."

45 Mrs Borg said that after that incident, Mr Wheeler-Smith did not make any more comments of a sexual nature to her. However, whenever he was near her she said she felt stressed and alone, and that she did not want to go to work each day.

46 Mrs Borg also described an incident which she said occurred at the Gatehouse, sometime between September 1997 and December 1997, when Mr Wheeler-Smith accused her of disobeying orders for not allowing a prisoner to leave for a hospital visit. She recalled that he said to her,

"You're nothing but a fucking idiot. You're disobeying orders."

As he said this, he pointed to the insignia on his shoulder.

47 It is common ground that Mrs Borg applied for a 3 month transfer to John Morony in July 1997 and that the reason given on her application form was that she wanted more experience at a "man's jail". Mrs Borg gave evidence that she gave that as the reason because she was scared of Mr Wheeler-Smith and because he held a senior position. She said that after putting in her request, she went to see Mr Campbell to see if it had been approved. She recalled he said to her,

"You're a good officer, I cant lose you",

to which she replied,

"It's only three months. I need a break from here. I want to get away from Wheeler-Smith.”

She said Mr Campbell responded by saying,

"You're not the first, there are other people having trouble with Wheeler-Smith. Don’t worry about it."

When she replied,

"I can't stand him anymore."

Mr Campbell said,

"You'll be right."

48 She gave evidence that she did not tell Mr Campbell the nature of her complaints about Mr Wheeler-Smith and that he did not ask. She also said that she spoke to Mr Campbell on a number of occasions prior to December 1997 about her request to transfer to John Morony and that although she repeated that she wanted to leave because of Mr Wheeler-Smith, she did not tell him what her problem was. She said she recalled that during one or more of the conversations he said to her words like:

"I can't lose you. Why do you want to go to John Morony. Don’t worry. I will protect you."

and

"If you have a problem, just write it in your book. Whatever he does to you, just write it in your book."

49 The incident which ultimately led Mrs Borg to make a formal written complaint about Mr Wheeler-Smith occurred on 13 December 1997. Mrs Borg's evidence more specifically relates to her claim of race discrimination and is set out later. In her initial letter of complaint dated 17 December 1997 she states:

"He has also spoken to me using sexual language which has deeply [e]ffected me.

. . .

I am concerned that he will use sexual language to me or touch me inappropriately."

(See Exhibit 2, Annexure A.)

50 Mrs Borg also gave evidence of an incident that occurred on 31 December 1997 at the Gatehouse. She said Mr Wheeler-Smith spoke to her in a loud and aggressive way, wrongly accusing her of not answering either the phone or her motorola (walkie talkie). Ms Mallia, a First Class Correctional Officer at Mulawa, called by the Applicant, gave evidence that sometime in 1997 prior to June, she witnessed Mr Wheeler-Smith speaking to Mrs Borg at the Gatehouse in an aggressive manner because he considered (wrongly) that she had not answered either the phone or her motorola. She said that Mr Wheeler-Smith was waving his arms in the air, was red in the face and appeared to be angry. She also said that Mrs Borg appeared to be shocked, embarrassed, humiliated and ready to burst into tears. She only recalled one incident when Mr Wheeler-Smith had spoken to Mrs Borg aggressively at the Gatehouse for not answering the phone. Notwithstanding the discrepancies in the dates given, we are satisfied that the evidence of Ms Mallia and Mrs Borg relates to the same incident.

51 To corroborate the incident which occurred at the Gatehouse in about September 1997, Mrs Borg relies on a report prepared for Mr Campbell by Ms Evans dated 5 January 1998 (Exhibit C, p 162) and the record of interview between Ms Quinn and Ms Evans, dated 29 March 1998 (Exhibit C, pp 203-216). Ms Evans was summonsed to attend the hearing but did not appear. In her record of interview with Ms Quinn, she said she has a "shocking memory for dates" and that she was unable to recall the date of the incident described in the report to Mr Campbell of 5 January 1998.

52 Ms Evans' account to Mr Campbell reads:

"Whilst working in visits I was present when SAS Peter Wheeler-Smith came into the gate house and had a conversation with the staff present. One of the staff being Officer J. Borg. Several times Mr Wheeler-Smith directed comments towards Mrs Borg, She appeared not to comprehend a lot of what was said to her by Mr Wheeler-Smith. As Mr Wheeler-Smith departed the gate I said to Mrs Borg, "Josephine, you shouldn't let him say things like that to you. I would certainly have smacked him in the gob if he had said those things to me". She said, "what things". I said, "Do you understand any of the things he was saying to you?" She said "No". I said, "Josephine, when he says he gets a hard on every time you answer the phone to him, it means he gets a hard penis or an erection". She said, "Oh my God", and became extremely upset. After I explained the meaning of several other innuendoes and comments Mr Wheeler-Smith had made, Mrs Borg became quite distraught. She was so upset she refused to answer the telephone the rest of her shift and she became weepy and very emotional. I felt very bad and sorry for Mrs Borg as she is a very nice, sensitive and naïve person who would not intentionally hurt or insult anyone. This is not the first incident with Mr Wheeler-Smith and there have been a few more since Mrs Borg first approached the Governor regarding this matter. I have personally witnessed a few and I have seen the state that Mrs Borg gets into after an encounter with Mr Wheeler-Smith, not only can she no longer function in her assigned post, she gets so upset she stresses out."

53 In relation to the incident at the Gatehouse on 13 December 1997, Mrs Borg relies on the evidence of Mr Horgan, in particular his observations of her distressed state and the nature of her complaint to him. Mr Horgan said that for approximately 19 months until 27 December 1997 he worked as a Prison Officer at Mulawa, and that at the time he was the local delegate as well as the Secretary for the State Executive Committee of the Prison Officers' Union, the union to which Mrs Borg belonged.

54 He said that early in the morning, before 9 o'clock, Mrs Borg asked him to come to the Gatehouse. When he arrived, there were several other prison officers in the office who were on duty in the Gatehouse. He observed that Mrs Borg was visibly distressed and that she appeared to have been weeping. She told him that there had been an incident involving Mr Wheeler-Smith shortly beforehand. Mr Horgan said she described the details to him in the visit room adjacent to the Gatehouse and that she also complained to him that Mr Wheeler-Smith had also made rude and sexual remarks to her. She did not give any details.

55 Mr Horgan gave evidence that over a period of several months before the incident in December 1997 at the Gatehouse, Mrs Borg had complained to him (more than once) that Mr Wheeler-Smith had made suggestive sexual remarks, told sexual jokes, and made sexual innuendoes through joking remarks to her. Mr Horgan also said that 4 or 5 other female staff had also complained to him over the previous months about similar conduct, and that all of the staff members, including Mrs Borg, had found the remarks and the jokes offensive.

56 Mr Horgan said that Mr Wheeler-Smith was well known among staff for his sexual innuendoes and sexual jokes, and that he had personally heard him crack inappropriate jokes of a sexual nature to the female staff on a regular basis. He had not heard him make derogatory remarks to Mrs Borg.

57 He said he had observed Mr Wheeler-Smith to occasionally stand very close to the female prison officers, particularly the younger junior officers. In cross-examination, he said he viewed his "spatial relationship to the female officers" as inappropriate.

58 Mr Horgan gave evidence that he had previously spoken to Mr Campbell about the complaints that staff had made in relation to Mr Wheeler-Smith's sexual innuendoes and jokes. He recalled that he had spoken to Mr Campbell on at least three occasions over a number of months prior to the December Gatehouse incident. He said the last occasion had been about one month earlier. In cross-examination, he said that on the occasions he had spoken to Mr Campbell about the complaints from other staff members, he had also mentioned that complaints had been made about Mr Wheeler-Smith's "spatial relationship to the female officers".

59 The following exchange occurred when Mr Horgan was giving his evidence in chief:

Q: . . . And can you, to the best of your recollection, taking the first occasion, can you recall what you said to him?

A: Not specifically, except to say that the staff member whom I was talking about, and there were several, was offended by the remarks and the behaviour and that Mr Campbell needed to take some action to prevent it from recurring.

Q: And do you recall what Mr Campbell's response was?

A: Mr Campbell explained to me that he was aware of the incidents but that no staff were willing to make a formal complaint so he was unable to proceed formally. But also that he has spoken to Mr Wheeler-Smith in general terms, I believe.

. . .

Q: Can you remember anything else about that conversation?

A: It appeared to me that Mr Campbell was frustrated."

60 In relation to the lodging of a formal complaint, Mr Horgan said the following:

"Prison Officers are notoriously reluctant to make formal complaints about their managers and prefer to discuss matters with me and have me refer the matter to the Governor. Part of the reason is that Prison Officers can be in dangerous or vulnerable situations and need back up, and there is some concern that if complaints are made against a fellow officer, the backup may not be as forthcoming as it ought." (See Exhibit 6.)

61 In relation to the "September" Gatehouse incident, Mrs Borg relies on the evidence given by Mr Warwick that she made a contemporaneous complaint to him about Mr Wheeler-Smith's conduct towards her on that day. Mr Warwick said in his statement of evidence, dated 19 February 2001 (Exhibit E), that after Mrs Borg's conversation with him he "advised the Deputy Governor and the Governor of its contents".

62 In cross-examination, he said that he thought he had informed Mrs Leyshon and that "she in turn would've ensured the Governor would've been made aware of it". He conceded that he may have told Mrs Leyshon about the incident immediately after Mrs Borg had discussed it with him. He also agreed that the incident may have occurred months before December rather than weeks. He said that he would have told "them" (ie the Deputy Governor and the Governor) that Mrs Borg didn’t want to proceed on paper and that she had indicated that she wasn't sure what to do. He stated that he briefed "them" because although he had an obligation to Mrs Borg, there were wider obligations to other staff and the running of the gaol.

63 In his record of interview with Ms Quinn on 1 May 1998, Mr Warwick said that when Mrs Borg complained to him about the "September" Gatehouse incident, she was "in a very distraught state, teary eyed and shaking". He also stated that he had advised her of the courses of action that she could take in relation to the incident, viz "one to make a formal complaint to the Governor to be dealt with locally, and if the need be it could go further than that, perhaps outside the Department". He also told Ms Quinn that Mrs Borg had stated that she did not want to cause trouble and would not take any action at present. He further said that he had informed the Deputy Governor of the incident and that she had said that she would speak to Mrs Borg in relation to the matter (Exhibit C, pp 224 – 225).

64 Mr Warwick then added the following words in his record of interview:

"A significant period of time lapsed between that particular incident and an incident, that I think was in December last year, when again Officer Borg presented to my office in a very distraught state and actually turned on her heel and went away, I followed her to the gate area where the staff sign on, and made inquiries about why she was so upset. She then told me of an incident that had taken place earlier that morning where Area Manager, Mr Peter Wheeler-Smith had made comments about not being able to understand her." (Exhibit C, p 225.)

65 Mrs Leyshon said in her statement of evidence, dated 19 February 2001 (Exhibit D), that some weeks prior to December 1997 Mr Warwick informed her and Governor Campbell that Mrs Borg had spoken to him about an incident whereby Mr Wheeler-Smith had said to Mrs Borg words to the effect that he gets a "hard on" when she speaks to him. She said that she did not pursue the matter because Mr Warwick had advised her that Mrs Borg did not wish any action to be taken. In cross-examination, she said that she did not think that Mr Warwick had spoken to her about the incident "some months before December 1997". However, she conceded that her recollection of exactly when it occurred was "fairly vague".

66 She agreed, in cross-examination, that the incident had been disclosed to the Governor. However, she could not recall whether she had personally told him. She said that no action could be taken because Mrs Borg had not lodged a formal complaint. She also said that, from recollection, Mrs Borg was not with Mr Warwick when he told her about the incident. When asked whether she had said, "that's not very nice is it", she said that she did not think so, although she "may have".

67 It is Mr Campbell's evidence that he did not become aware of the "September" Gatehouse incident until he interviewed Mrs Borg, in the presence of Ms Leyshon, on 19 December 1997 in relation to her written complaint dated 17 December 1997 (Exhibit F, Annexure C). In his statement of evidence, dated 15 February 2001, he said the following:

"Some weeks prior to December 1997 Mrs Borg spoke to me about problems she was having with Mr Wheeler-Smith. Mrs Borg did not describe to me any specific incident. She did not describe to me any specific words he may have said to her or any specific deeds he may have committed. I recall she stated to me to the effect that he had been rude to her and that he was making rude jokes. Mrs Borg did not ask me for allocation of duties or rostered hours which could have limited or eliminated contact with Mr Wheeler-Smith. I encouraged Mrs Borg to record any complaint she may have about Mr Wheeler-Smith and present it to me, so that I could assess what intervention, if any, was necessary. I considered Mrs Borg's approach to me informal to the degree that I did not record it in my Governor's journal of daily activities.

Around that time Staff Officer James Warwick also spoke to me about Mrs Borg and Mr Wheeler-Smith. Mr Warwick advised me to the effect that Mrs Borg did not wish further action. From that conversation I understood that Mr Warwick had spoken to Mr Wheeler-Smith about it." (Exhibit F.)

68 In cross-examination, Mr Campbell was asked whether the conversation with Mrs Borg (referred to above) could have occurred within months of December 1997. He said it was within weeks rather than months. However, when asked about the conversation he had with Mr Warwick "around that time", he said that it was possible that it had been in September 1997. He said, "I can't recall the dates, so many people come to me". He also said that when Mr Warwick came to see him, he had just said that Mrs Borg had a problem with Mr Wheeler-Smith. He said he had not asked Mr Warwick what the problem was because "it would have breached confidentiality". According to Mr Campbell's evidence, Mr Warwick had said to him something like, "oh there's a bit of a problem between Borg and Wheeler-Smith but I've spoken to him".

69 Mr Campbell also said that it was possible that Mrs Borg had spoken to him in the month or two prior to September 1997 about the problems she was having with Mr Wheeler-Smith. However, he disagreed that it had been raised by Mrs Borg in the context of her request for a transfer to John Morony. When asked whether Mr Horgan had come to him in 1997 and told him that members of staff had approached him about Mr Wheeler-Smith making sexual jokes and innuendoes, he said that was correct but that he had told Mr Horgan that without a written complaint he couldn't do anything. Later in cross-examination, he said that he could not recall Mr Horgan saying that the complaints were of a sexual nature. He said it was possible that Mr Horgan had come to him around the same time that Mrs Borg and Mr Warwick had come to see him.

70 Mr Campbell also said that although he had spoken to Mr Wheeler-Smith about many matters, he did not speak to him between mid 1996 and the December Gatehouse incident about his relations with female members of staff. He described Mr Wheeler-Smith as "a pompous, rude person" and said that people complained about him. Equally, he said people complained about another executive officer because he was too soft. In relation to the requirement that a complaint be in writing before any action could be taken, he said:

"I think people have the right to complain whether they put it on paper or not, but whether it is substantial or not is the matter and I personally believe that unless they put it down on paper then there is no substance in it."

71 Ms Vassallo gave evidence that she was present as an observer in a support role during Mrs Borg's interview with Ms Quinn on 17 March 1998. At the time, Ms Vassallo was a Superintendent in Operations and she was also working with the Women's Operational Support Program (which looked at improving conditions for female staff). She said in her statement of evidence dated 15 November 2000 (Exhibit 8), that Mrs Borg was quite a strong and forceful woman in the early stage of her complaints to her but by late 1999, she could barely have a conversation with her without Mrs Borg crying. She expressed the opinion that Mrs Borg seemed to lose her confidence over that 12 month period.

72 Ms Vassallo also said that after Mr Wheeler-Smith's transfer out of Mulawa (in March 1998), Mrs Borg called her on occasions to talk through any issues she still had. Mrs Borg informed her that she still felt uncomfortable at Mulawa because "there may be repercussions from other senior officers". Ms Vassallo said that was a reasonable concern because the "CSD has a culture where if a complaint is made, there is likely to be retaliation from other officers, including the officer against whom the complaint is made".

73 Mr Wheeler-Smith gave evidence denying that he had ever sexually harassed Mrs Borg or discriminated against her on the ground of her sex. He said that he had held the commissioned rank of Senior Assistant Superintendent since February 1993, and that within a correctional centre his rank placed him in a position of third officer in charge. In February 1994, he was transferred to Mulawa, firstly as Staff Officer for approximately 11 months and then as an Area Manager. This was a management position which placed him in a position of responsibility for one of three separate areas within the Centre. His role involved the direct supervision of over 40 staff members and up to 80 inmates at any one time. In December 1997 he had been Area Manager for nearly 3 years, having worked in all of Mulawa's designated areas during that time.

74 He said that, as of December 1997, he was Area Manager of the Dawn De Lois Centre. His duties involved direct supervision of about 45 staff, including rostering, as well as oversighting inmate visits and movement through the main gate. He was also responsible for conducting staff parades and at times a reception discharge of inmates into and out of the Centre.

75 He also said that the position of First Class Correctional Officer held by Mrs Borg was a non-commissioned rank, three grades below his own. She had been under his supervision at various times throughout his years as Area Manager and had been assigned to the Dawn De Lois Centre since May 1997.

76 He described Mrs Borg as being "barely competent" in most areas of her duties, with a poor understanding of her role. Based on his own experience as well as comments made by other officers and inmates, he found her to have a highly volatile temper and, depending on her moods, to be loudly abusive towards her peers, inmates, visitors and management staff. He said that numerous complaints had been lodged by inmates against her for swearing at them, abusing them, and yelling and screaming at them. He did not give specific details of these complaints.

In his report to Mr Woodham dated 19 January 1999 in relation to the December Gatehouse incident, he said the following:

"Borg's insolence and insubordination towards a far more senior officer of the Department was deplorable. The fact that she followed up this attack with a written complaint and more lies (lies that she continued to add to as the whim took her), is even more reprehensible.

. . .

I was advised by the Governor that Borg had lodged a complaint about the incident, and her version of events was very far removed from what actually occurred. In her very short report she also alleged I had made a sexual remark to her. This is completely untrue, and I believe Borg included this scurrilous accusation namely to cause me discredit.

. . .

Both of Borg's ROIs [Records of Interview] and her written complaint are filled with inaccuracies, inconsistencies and deliberate lies.

. . .

Borg has a well known history of verbally abusing any person she finds fault with, irrespective of rank or station."

77 Mr Wheeler-Smith was cross-examined about the circumstances which led to him receiving a letter of warning from Mr Woodham, dated 2 July 1997, in respect of various alleged breaches of discipline relating to the sexual harassment of a Prison Officer named Julia Adams (in 1996). Mr Beech-Jones put the following paragraph of Mr Woodham's letter to him:

"While I have decided not to proceed with formal disciplinary action, I have decided to issue you with this letter of warning. The reason for my decision is that while your conduct towards officer Adams may not have amounted to breaches of discipline, it was, nonetheless, far from satisfactory. At the time you decided to declare your feelings towards Ms Adams by giving to her two letters you have admitted writing, you were her supervising officer and had taken upon yourself the role of counsellor. There is considerable difference in rank between you. For these reasons alone you should have been very careful and circumspect in your behaviour towards her."

In responding to the letter, Mr Wheeler-Smith said that when he first received it he did not accept that he deserved a warning because the seven charges of sexual harassment had been dismissed.

78 In essence, Mr Wheeler-Smith said that Mrs Borg, Ms Evans, Mr Warwick and Mr Campbell had not told the truth in relation to Mrs Borg's allegations.

79 In cross-examination, he agreed that some of the sexual jokes he told were risqué, smutty, and contained "blue language" but, in the context of the type of work prison officers are engaged in, he said he did not regard the jokes as inappropriate. He also said that no one had ever indicated to him that they were offensive.

80 Mr Wheeler-Smith called three witnesses in his case, all of whom said that Mrs Borg had been aggressive and abusive towards inmates and fellow officers. They did not provide specific details. Ms Hotham and Ms Williams said that Mr Wheeler-Smith had never made any suggestions of a sexual nature to them. In relation to Mrs Borg's allegations of sexual harassment, we did not find either their evidence or that of Mr Wright to be of any real probative value.

81 Ms Brus did not dispute that Mrs Borg had been sexually harassed in the manner alleged. Indeed, she submitted that the Department's inquiry into the "September" Gatehouse incident supported the Applicant's case that she had been sexually harassed. However, relying on s 53 of the Act, she submitted that the evidence did not support a finding of liability against the First Respondent. She placed particular reliance on the evidence of Mr Campbell, Mrs Leyshon, Mr Warwick and Ms Wright.

82 Ms Wright, the Acting Superintendent of the Custodial Training Unit, gave detailed evidence of the First Respondent's publications and training policies in relation to the prevention of harassment, including sex based harassment (see Exhibit G). She referred to the First Respondent's "Prevention of Harassment Policy and Guidelines", dated 9 April 1997. Paragraph 1.8 of the document states:

"Supervisors and managers have a responsibility to provide a workplace that is free from harassment and to deal with any complaints or grievances promptly, impartially, fairly and confidentially (see the Grievance Resolution Policy and Procedures ['the Grievance Procedures'] ).".

In cross-examination, Ms Wright agreed that responsibility for the prevention of workplace sexual harassment rested with the Governor, the Deputy Governor, the Area Managers and the Senior Correctional Officers.

83 In cross-examination, she said that the Grievance Procedures would normally be available from the Staff Officer or the Deputy Governor. She also said that they did not require the lodgement of a written complaint and that a verbal complaint could be acted on. If, however, disciplinary action were sought, she said a written complaint would be necessary.

Our Findings

84 In urging us to prefer Mr Wheeler-Smith's evidence to that given by Mrs Borg, Mr Woznick submitted that it defied commonsense that Mr Wheeler-Smith would have called Mrs Borg "a fucking wog" (sometime in the first half of 1997) and then make sexual advances to her after this time. We do not accept this submission. According to Mr Campbell, Mr Wheeler-Smith was known as a pompous, rude person. We do not consider it to be inherently unlikely that he would have behaved in the manner alleged by Mrs Borg.

85 We found Mrs Borg to be an honest, credible and, generally speaking, a reliable witness. Notwithstanding the considerable emotional strain she was under, she was not shaken in cross-examination in relation to any material evidence. We have reached the view that her evidence should be accepted in preference to that of Mr Wheeler-Smith without the need to have recourse to either the untested account given by Ms Evans in relation to the "September" Gatehouse incident or the warning given to Mr Wheeler-Smith in respect of his conduct towards Ms Adams. In reaching this view, we have applied the standard of proof referred to in para 29 above.

86 Support for the conclusion we have reached can be found in the evidence of Mr Warwick and Mr Horgan. We do not accept Mr Wheeler-Smith's evidence that Mr Warwick was not a truthful witness. On the contrary, we found him to be an honest, reliable and frank witness who gave his evidence in a very straightforward manner. We are satisfied that his evidence can be safety accepted. Equally, we had no difficulty in accepting the evidence of Mr Horgan.

87 Mrs Borg gave evidence that immediately after the "September" Gatehouse incident she became very upset. When Mr Warwick was interviewed by Ms Quinn on 1 May 1998, he told her that when Mrs Borg had complained to him about this incident she was in a very distraught state and that she was teary eyed and shaking. This resulted in a complaint about the specific incident being made to Mrs Leyshon. Mr Campbell was also advised of the incident. However, there is conflicting evidence as to when and what he was told, and by whom. We discuss this in greater detail later.

88 Mrs Borg's evidence of Mr Wheeler-Smith's conduct towards her is consistent with Mr Horgan's evidence that over a period of several months before the December Gatehouse incident she complained to him (more than once) that Mr Wheeler-Smith had made suggestive sexual remarks to her. Her evidence is also consistent with Mr Horgan's own observations of the manner in which Mr Wheeler-Smith related to female officers generally.

89 To the extent that contemporaneous complaints were not made in relation to each incident of Mr Wheeler's conduct, we find that this was generally attributable to Mrs Borg's reluctance to make a complaint against a senior officer, particularly a Senior Assistant Superintendent. In circumstances where she was scared of Mr Wheeler-Smith (and his authority) and feared that adverse repercussions could flow from any written record being made of her complaints, we find her reluctance entirely understandable. In this respect, her evidence was supported by that of Mr Horgan and Ms Vassallo.

90 While we found much of Mr Campbell's evidence was given in a frank and straightforward manner, parts of it were lacking in credibility and reliability. On those occasions where it was in conflict with that given by Mrs Borg, we preferred her evidence.

Was Mr Wheeler-Smith's Conduct Unlawful?

91 In relation to the conduct which post-dated the amendments to the Act in July 1997 (by Act No. 9 of 1997), we find that Mr Wheeler-Smith is personally liable within the meaning of s 22B(2) of the Act. We find that he engaged in unwelcome conduct of a sexual nature in relation to Mrs Borg, in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that Mrs Borg would be offended, humiliated or intimidated (s 22A(b)).

92 Prior to the July 1997 amendments, it was not possible to lay a complaint against a fellow employee. Mr Wheeler-Smith could only be joined to the proceedings and in turn become the subject of a Tribunal order through the operation of s 53 of the Act and / or the common law. Accordingly, in order to find Mr Wheeler-Smith liable for the conduct which predated the 1997 amendments, it is necessary to first consider the liability of the First Respondent for the acts of sexual harassment committed by Mr Wheeler-Smith.

Liability of the First Respondent

93 The Applicant submits that the First Respondent is liable for Mr Wheeler-Smith's conduct by virtue of the operation of the common law and / or s 53 of the Act. We discuss these in turn below.

Personal Liability - The Common Law Position

94 In M v R Pty Ltd (1988) EOC 92 – 229 the then Equal Opportunity Tribunal (Graham DCJ presiding) discussed the various ways in which an employer could be found to have personally breached s 25(2) of the Act. At 77, 173 the Tribunal listed the following four ways (adding that the list was not intended to be exhaustive):

(1) Where the relevant discriminatory act or conduct is personally performed by the employer.

(2) Where, in the case of an incorporated entity, the relevant discriminatory act or conduct is performed by a senior official whose conduct is to be identified as being that of the incorporated entity because he or she represents the "mind or will" of that entity.

(3) Where the relevant discriminatory act is that of a person or persons whose duty it is to, or who customarily or usually has the function of, afford(ing) terms and conditions of employment to the employee alleging discrimination.

(4) Where the relevant discriminatory act or conduct is that of employees not in any of the three earlier categories, but whose conduct is known to any of the persons in those categories and, by active condonation or inactivity, no prompt or adequate steps are taken by or on behalf of those in any of the first three categories to rectify the adverse working conditions thus afforded to the employee.

95 In Bogie v The University of Western Sydney the Tribunal (Graham DCJ presiding) at 78, 147 expanded upon the third category listed above by giving examples of the duties carried out by an employee who customarily or usually has the function of affording terms and conditions of employment to the employee alleging discrimination. The examples given were "dismissal or transfer, or the supervision and / or provision of the day-to-day working environment".

96 The Applicant submits that Mr Wheeler-Smith falls into the third category listed in M v R Pty Ltd on the basis that he was responsible for the supervision of the day-to-day working environment of Mrs Borg. Relying on the evidence of Mr Warwick, the Applicant submits that a Senior Assistant Superintendent is responsible for providing a workplace environment free from harassment and one which is safe for all staff and personnel entering that area. She also relies on the evidence of Mrs Leyshon. In cross-examination, Mrs Leyshon said that the Area Manager of the Dawn De Lois Centre was responsible for the day-to-day supervision and work performance of the officers in that area, including the Gatehouse. She also said that the Area Manager reported to the Deputy Governor and the Governor.

97 The evidence of Mr Warwick and Mrs Leyshon referred to above is consistent with that given by Mr Wheeler-Smith. He said that as of December 1997, he had been Area Manager for nearly three years and that Mrs Borg had been under his supervision at various times over that period.

98 At the time of the two Gatehouse incidents, it is clear that Mr Wheeler-Smith was the Area Manager of the Dawn De Lois Centre and that Mrs Borg was under his supervision. In relation to the incidents of sexual harassment which occurred from mid 1996 to May 1997, the position is not entirely clear. When she worked as the Deputy Governor's Clerk in the first half of 1997, it is reasonable to conclude that Mrs Leyshon was generally responsible for her day-to-day supervision unless, in her absence, Mr Wheeler-Smith or another Senior Assistant Superintendent was Acting Deputy Governor. During the relevant period in 1996, Mrs Borg said she worked in the reception area of the gaol. The evidence is unclear as to who was her supervisor.

99 We are satisfied that from May 1997 to the end of December 1997, Mr Wheeler-Smith was responsible for Mrs Borg's day-to-day supervision. Accordingly, we find that he falls within the third category of M v R and a fortiori, the fourth category. It follows that we are satisfied that the First Respondent is personally liable for the incidents of sexual harassment which occurred during that period.

100 In relation to the incidents of sexual harassment falling outside the abovementioned dates, we are satisfied that Mr Wheeler-Smith falls into the fourth category and, therefore, that the First Respondent is personally liable for the incidents of sexual harassment which occurred during that time.

101 The findings set out in paras 102 – 109 below lead to the conclusion that the conduct of the First Respondent's most senior officers at Mulawa can safely be construed as conduct amounting to both "inactivity" and "active condonation".

102 Mr Campbell was on notice from about August 1996 that, in relation to Julia Adams at least, Mr Wheeler-Smith had displayed a lack of professional judgment in his dealings with a female member of staff.

103 Sometime in 1997, Mr Campbell was on notice that female members of staff had made informal complaints about Mr Wheeler-Smith's sexual innuendoes and jokes.

• Mr Horgan said that in 1997 he had spoken to Mr Campbell, on at least 3 occasions, about the complaints that female members of staff had made to him in relation to Mr Wheeler-Smith's sexual innuendoes and jokes. Mr Campbell agreed that Mr Horgan had spoken to him about these complaints. However, we found his evidence on this point to be somewhat vague and internally inconsistent. Where his evidence differed from that given by Mr Horgan, we had no difficulty accepting Mr Horgan's evidence.

104 Shortly after the "September" Gatehouse incident, both Mr Campbell and Mrs Leyshon became aware of Mrs Borg's complaint that Mr Wheeler-Smith had said to her words to the effect that he gets a "hard on" when she speaks to him.

• It is Mr Campbell's evidence that he did not become aware of the specifics of this complaint until 19 December 1997. We do not accept this evidence. It is inconsistent with the evidence given by Mr Warwick and Mrs Leyshon. Moreover, it is inherently unlikely that Mr Campbell would not have sought details of the complaint, particularly in circumstances where Mrs Borg had indicated to him that she was having problems with Mr Wheeler-Smith. We are also satisfied that the relevant incident occurred in September 1997 (as was suggested by Mrs Borg) rather than "weeks before December 1997".

105 Apart from the Julia Adams' matter, from mid 1996 through to December 1997, Mr Campbell never spoke to Mr Wheeler-Smith about his relations with female members of staff.

• Although Mr Horgan's evidence suggests that Mr Campbell said to him that he had spoken to Mr Wheeler-Smith, in general terms, about the complaints made by female officers, Mr Campbell denied that he had ever spoken to Mr Wheeler-Smith about his relations with female members of staff. Similarly, Mr Wheeler-Smith did not suggest in his evidence that he had done so. We accept their evidence on this point.

106 Prior to the December Gatehouse incident, Mr Campbell took no action on the complaints made about Mr Wheeler-Smith because of the mistaken belief that no steps could be taken unless a written complaint was lodged. This was a belief shared by Mr Warwick and Mrs Leyshon.

• The Grievance Procedures were not in evidence. However, Ms Wright said that the Procedures did not require that a written complaint be lodged; a verbal complaint could be acted on. She outlined various steps that could be taken to resolve a grievance without the need for a formal complaint to be lodged. She said that the steps taken would very much depend on the particular grievance and the "issues" involved.

107 Throughout the relevant period, the First Respondent's policies concerning sexual harassment in the workplace were not properly implemented by Mr Campbell, Mrs Leyshon and Mr Warwick.

• Ms Wright said that in accordance with the Grievance Procedures, Mulawa was required to have a designated grievance officer. She also said that this officer would usually be the Staff Officer, and that the Governor and the Deputy Governor should have been familiar with the Grievance Procedures and been clear as to who was the designated grievance officer and what was their role. When cross-examined on the point, Mr Warwick said that he was not the designated grievance officer and he could not recall who was. When Mrs Leyshon was asked whether she knew what a grievance contact officer was, she said she did not know.

108 We do not suggest that Mr Campbell should have breached Mrs Borg's confidentiality by providing Mr Wheeler-Smith with details of the September Gatehouse incident (or any other incident) without her consent. However, against a background where Mrs Borg had complained on several occasions to him about the problems she was having with Mr Wheeler-Smith (albeit without providing specific details); where he had been told by Mr Horgan about the complaints he had received from female members of staff in relation to Mr Wheeler-Smith's conduct; where he was aware of the warning given to Mr Wheeler-Smith in relation to Julia Adams; and where it was common knowledge that prison officers were extremely reluctant to make formal complaints about their managers, we find the First Respondent's conduct amounted to both "inactivity" and "active condonation".

109 In the circumstances, it was incumbent upon Mr Campbell to communicate to Mr Wheeler-Smith the importance of the First Respondent's sexual harassment policies, and the importance of not engaging in conduct which might be classified as sexual harassment and which might contravene the relevant provisions of the Act. This could have been done without breaching the confidentiality of either Mrs Borg or the other female officers who had complained to Mr Horgan.

110 In the event that we are wrong in finding the First Respondent personally liable for the conduct of Mr Wheeler-Smith, we now turn to discuss whether the First Respondent is vicariously liable pursuant to s 53(1) of the Act.

Section 53 of the Act

111 Section 53 relevantly provides:

"53 Liability of principals and employers

(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.

. . . . "

112 It is the First Respondent's case that:

• It did not authorise the conduct in question either before or after the conduct occurred.
• If found to have authorised the conduct in question, it took all reasonable steps to prevent Mr Wheeler-Smith from contravening the Act.

113 It is well established that s 109 of the Act imposes an onus upon the First Respondent to prove the absence of authority contemplated by s 53(1): Shellharbour Golf Club v Wheeler [1999] NSW SC 224; Samuels Real Estate v Lamb & Anor (1998) EOC 92 – 923. In the latter case James J said at 78, 148:

"Section 53 expressly provides that a principal or employer can authorise an act by an agent or employee, either before or after the doing of the act. Under s 53, the onus on the issue of authorisation is cast on the principal or employer; it is for the principal or employer to establish that it did not authorise the act of the agent or employee."

114 In Shellharbour Golf Club v Wheeler Studdert J gave a broad interpretation to the word "authorise" in s 53(1) of the Act. His Honour said at para 58:

"The decision in University of New South Wales v Moorhouse [(1974-75) 133 CLR 1] has been much followed in copyright cases and the broad concept of 'authorise' . . . has been frequently applied for the purposes of statutory construction under the copyright legislation. For present purposes, bearing in mind the nature of the Anti-Discrimination Act, I consider that the word 'authorise' should be given an equally broad meaning to that given to the word in the copyright cases. Accordingly, it seems to me 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."

115 Based on our findings in paras 102 – 109 above, we are not satisfied that the First Respondent has established that it did not authorise Mr Wheeler-Smith's conduct.

116 Equally, based on our findings in paras 102 – 109 above, we are not satisfied that the First Respondent has established that it took all reasonable steps to prevent Mr Wheeler-Smith from contravening the Act.

Liability : Conduct before 4 July 1997

117 It is widely accepted that although the Act did not specifically make sexual harassment unlawful until the 4 July 1997 amendments, prior to that time such conduct could constitute unlawful discrimination on the ground of sex within the meaning of s25 of the Act : O'Callaghan v Loder; Hill v Water Resources Commission (1985) EOC 92 –127; Shellharbour Golf Club v Wheeler [1999] NSWSC 224.

118 We are satisfied that the conduct the Applicant was subjected to was both unsolicited and unwelcome. We are also satisfied that the Second Respondent either knew or, ought to have known, that his conduct was unwelcome. We find that the harassment the Applicant was subjected to produced an offensive, intimidating and sexually permeated work environment which was sufficiently pervasive to adversely affect the terms and conditions of her employment. Moreover, she was clearly placed under a disadvantage as to a matter of substance, as distinct from a trivial matter, which resulted in her being subjected to a detriment.

119 Accordingly, we find that the conduct complained of constitutes both a discriminatory condition of employment, within the meaning of s 25(2)(a), and a detriment within the meaning of s 25(2)(c). We further find that the Applicant was treated less favourably than male employees were or would have been treated in circumstances that were the same or not materially different within the meaning of s 24(1)(a).

120 We are satisfied that pursuant to both ss 25(2)(a) and 25(2)(c), the First Respondent is liable for the Second Respondent's discriminatory conduct. The Second Respondent's liability under s 25(2) arises by virtue of the operation of s 52 of the Act. We are satisfied that he is a person who caused the First Respondent to do an act which was unlawful pursuant to ss 25(2)(a) and 25(2)(c).

121 Accordingly, we find that both respondents are liable, jointly and severally, in respect of the contravention of the Act (s 53(2)).

Liability : Conduct after 4 July 1997

122 We have previously found the Second Respondent to be personally liable for sexually harassing the Applicant within the meaning of s 22B(2). We also find that, pursuant to s 22B(1), the First Respondent is liable for the Second Respondent's conduct.

123 Accordingly, we find that both respondents are liable, jointly and severally, in respect of the contravention of the Act.

RACE DISCRIMINATION

Relevant Provisions of the Act

124 Sections 7(1) and 7(2) relevantly provide:

"7 What constitutes discrimination on the ground of race

(1) A person ( the perpetrator ) discriminates against another person ( the aggrieved person ) on the ground of race if, on the ground of the aggrieved person's race . . . , the perpetrator:
(a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of a different race . . .
(2) For the purposes of subsection (1)(a) . . ., something is done on the ground of a person's race if it is done on the ground of the person's race, a characteristic that appertains generally to persons of that race or a characteristic that is generally imputed to persons of that race."

125 Section 8(2) of the Act provides:

"8 (2) It is unlawful for an employer to discriminate against an employee on the ground of race:

(a) in the terms or conditions of employment which the employer affords the employee,

(b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or

(c) by dismissing the employee or subjecting the employee to any other detriment."

126 The Applicant's case relies on two specific incidents. The first incident, according to Mrs Borg's evidence, occurred when she was working as the Deputy Governor's Clerk in the first half of 1997. She said Mr Wheeler-Smith came into her office one morning and handed her a pile of paperwork to process. As he was leaving her office, she called him back and said words like:

"Where do you want this paper to go?"

She said he grabbed the papers from her hand, saying:

"You're nothing but a fucking wog."

She said he sounded frustrated and angry when he said this.

127 She gave evidence that she told Mrs Leyshon about the incident approximately an hour later. She recalled that Mrs Leyshon had said she would speak to him, and that later that afternoon Mr Wheeler-Smith returned to her office and said to her:

"I'm sorry I was only joking."

128 When she described the incident to Ms Quinn in her record of interview on 17 March 1998, she said that she went to see Mrs Leyshon because she was upset. The interview reads:

"She [Mrs Leyshon] said: 'Do you want it on paper?' I said: No, I would like someone to speak to him why he speaks to me like that.

. . . In the afternoon he came and apologised. He said: "I was only joking.' I said: 'No you were not. Your face was all red and you don’t talk like that.'"

129 Mrs Leyshon gave evidence that she had no recollection of Mrs Borg complaining to her about such an incident. In cross-examination she conceded that it was possible that she had told her but that she could not remember it.

130 Mr Wheeler-Smith was also cross-examined in relation to the incident. He denied that he had said to Mrs Borg that she was "nothing but a fucking wog" and that he had apologised to her.

131 The other incident relied on by the Applicant is the December Gatehouse incident. She gave evidence that on 13 December 1997, at about 8.00 am, she was standing in the gate control office when Mr Wheeler-Smith announced the 8 o'clock parade for staff commencing duty at that time. She said that when she told Mr Wheeler-Smith that Ms Evans was upstairs in the Roster Clerk's Office, he was standing directly in front of her about one metre away. After saying the word "what" to her in a sharp tone with a quizzical look on his face, Mrs Borg said she repeated that Ms Evans was upstairs, and walked away from him. As she did so, she heard another officer say "Borgy said Janice is upstairs". She said Mr Wheeler-Smith followed her and when he placed his left hand on her shoulder, she turned around whereupon he said in a loud voice, "Why can't you speak English". She said he was waving his hands around and smiling, and that she considered he had spoken to her in an offensive manner by treating her as a fool and by laughing at her.

132 When she said to him,

"I spoke very clearly to you, why can't you understand me",

she said that she was upset and her voice was shaking. She said he responded by saying,

"Borgy why don’t you go and learn how to speak English, you are in Australia now not in your country, so start learning English.".

When she replied,

"I've been in this job for years and I haven't had any problems",

she said Mr Wheeler-Smith said:

"No, no, no one can understand you."

At the time, she said there were approximately 10 – 15 other officers within 5 metres and that some of them walked out during the conversation.

133 In her statement of evidence, dated 13 March 2001 (Exhibit 2), she described the impact on her of Mr Wheeler-Smith's conduct in the following way:

"When I spoke to Mr Wheeler-Smith I spoke to him in the way I normally speak to everybody. I did not raise my voice to him. He spoke to me in a way that made me feel ashamed of myself and he's upset me very much. I also saw that he was laughing at me. In the entire time that I have worked for the Department no one else has ever questioned my ability to speak English or referred to my ethnic background."

134 Mrs Borg said that a short time after the incident, she complained to Mr Campbell about Mr Wheeler-Smith's remarks. In due course, she wrote out a written complaint on 17 December 1997 and gave it to Mr Campbell the following day.

135 Mr Campbell said that when he interviewed Mr Wheeler-Smith on 19 December 1997 about Ms Borg's written complaint, he agreed that he had made a remark about Mrs Borg's country of origin but it was said purely in fun and the "spirit of the moment". Mr Campbell said that Mr Wheeler-Smith agreed to verbally apologise to Mrs Borg in relation to the racist remarks, but not the sexual comments.

136 In his memorandum to the Professional Standards Unit dated 6 January 1998, Mr Campbell expressed the opinion that when he saw Mrs Borg in his office on 13 December 1997 she was "extremely upset" and in tears. The memorandum reads:

"I asked Officer Borg what the problem was. She said something like 'this is not the first time he has done this, I want something done, I can't work under these type of conditions.'"

137 Mr Horgan and Mr Warwick also gave evidence that on 13 December 1997 they observed Mrs Borg to be visibly distressed. Mr Horgan said that he arrived at the Gatehouse early in the morning after receiving a call from Mrs Borg. When he arrived, she appeared to have been weeping. He also said she described the incident to him which had occurred with Mr Wheeler-Smith. His statement of evidence dated 15 November 2000 reads as follows:

"She said words to the effect 'He pretended not to understand what I was saying and then he mimicked my accent and told me that I should learn to speak English'. I think she said that she objected to what he said and that he then repeated what he had done previously – mimicked her accent.

I asked her if she thought he was joking, and she replied 'No'.

She asked me what she could do about it. She said words to the effect 'He has done this before to me, and he is doing it again and I am sick of it'."

138 In his record of interview with Ms Quinn on 2 July 1998, Mr Warwick said that when discussing the December Gatehouse incident with him, Mrs Borg "ventilated quite a lot of animosity directed towards Peter Wheeler-Smith", as well as recalling other incidents that had led up to or were significant to her in the past. He said:

"I think that she was seeking guidance, that's my interpretation as to whether her complaint would be treated [as] valid by the administration of the Centre, and she expressed concern about the reaction from her peers if she did proceed with a formal complaint. . . ."

139 Mr Warwick gave evidence that he held the same rank as Mr Wheeler-Smith and, therefore, that he had no authority to discipline him. He said in his capacity as Staff Officer, he had heard that Mr Wheeler-Smith had made some inappropriate jokes, and that around the time that Mrs Borg spoke to him about the "September" Gatehouse incident, he spoke to him about the jokes and advised him to the effect that he needed to be careful and considerate with the use of language.

140 In his record of interview with Ms Quinn, Mr Warwick said that he spoke to Mr Wheeler-Smith about his conduct and some of his speech in relation to behaviour he had seen or noticed by chance. He said that he informed Mr Wheeler-Smith that it was not acceptable behaviour from a Senior Executive of the Department. When asked by Ms Quinn whether his advice was "taken on board" by Mr Wheeler-Smith, he replied:

"No, And that is why I actually refer it to the Deputy and the Governor because they have more whack or more authority."

141 In cross-examination, Mr Warwick said that the unacceptable behaviour he had witnessed related to racial comments Mr Wheeler-Smith had made one day in the lunch room. He said that two officers, of either Indian or African extraction, were playing table tennis and that Mr Wheeler-Smith had said to them, "righto you jungle bunnies, get out of here and let us white fellows have a go". Mr Warwick said that this was the only time he had spoken to Mr Wheeler-Smith about his behaviour, and that he had not informed either the Governor or the Deputy Governor about it.

142 Mr Wheeler-Smith denied that Mrs Borg's version of the December Gatehouse incident was correct. His version of what occurred is set out in his letter to Mr Woodham of 19 January 1999 (Exhibit AG, Annexure A). It reads:

"On 13 December 1997 I conducted the 0800 hours staff parade at Mulawa C.C. During that parade it became evident that S.P.O. J. Evans was absent, however I had seen her in the Centre prior to that time. At the completion of the parade after directing staff to their duties, I entered the Gatehouse to use the telephone in an attempt to locate Evans. I lifted the receiver and called the Roster Clerk, asking her if she knew Evans' whereabouts. During this call I remained standing, facing out of the Gate towards Silverwater Works Release Centre.

Present in the Gatehouse, sitting beside me on my right and also facing the same way, was First Class P. O. Borg. Borg eavesdropped on my conversation and, upon hearing my enquiry regarding Evans, made a comment to me that I could not hear. When I hung up the phone I asked Borg to repeat what she had told me. She did so, and again I did not hear. I apologised and asked her to repeat it once more. Borg became very angry and started screaming abuse at me, saying, "I'm not fucking telling you again! You probably can't understand because of my accent!" I became quite angry at her verbal attack, and replied, "You're probably right. If you want to live in this country you should learn to speak the language". I then left the Gatehouse without locating Evans.

In hindsight, what I said to Borg may be seen not to be appropriate, however, it should be realised she had made me angry, and my words were said in the heat of the moment.

. . . "

143 In cross-examination, Mr Wheeler-Smith was adamant that he had never said to Mr Campbell that he had made a remark about Mrs Borg's country of origin purely in fun and the "spirit of the moment". He also denied that he had said the racial comments attributed to him by Mr Warwick (in para 141 above) or that Mr Warwick had spoken to him about it.

144 Mr Wheeler-Smith relies on the evidence of Ms Hotham, Ms Williams and Mr Wright to show that Mrs Borg had often displayed abusive conduct towards prisoners. He specifically relies on the evidence of Ms Williams to show that Mrs Borg had on occasions been vulgar and crude in her discussions with other officers; the evidence of Mr Wright to show that she had described an inmate as a "fucking dirty stinking Abo junkie"; and the evidence of Ms Hotham to show that she had addressed new prisoners as "pieces of shit", "dogs" and "dirty junkies".

Our Findings

145 We are satisfied that Mrs Borg's account of the December Gatehouse incident and her account of the occasion on which Mr Wheeler-Smith called her "a fucking wog" can safely be accepted. In reaching this view, we have preferred her evidence to that given by Mr Wheeler-Smith.

146 In relation to the occasion on which Mr Wheeler-Smith called her "a fucking wog", we find that she spoke to Mrs Leyshon about it because she was upset and because she wanted her to do something about it. While Mrs Leyshon could not remember Mrs Borg complaining to her about the incident, she conceded that it was possible that she had done so. We find that Mrs Borg's evidence can safely be relied on.

147 Mr Horgan, Mr Warwick and Mr Campbell all said that Mrs Borg was distressed by the December Gatehouse incident. In relation to the conflict between the evidence given by Mr Campbell and that given by Mr Wheeler-Smith, we prefer the account given by Mr Campbell that Mr Wheeler-Smith had told him that he had made a remark about Mrs Borg's country of origin purely in fun and the "spirit of the moment". While we found some aspects of Mr Campbell's evidence to be unsatisfactory and lacking in credibility, we are satisfied that his evidence on this point can be safely relied upon.

148 Where Mr Warwick's evidence conflicts with that given by Mr Wheeler-Smith, we prefer the evidence given by Mr Warwick. As mentioned earlier, we found Mr Warwick to be a reliable and honest witness. We are satisfied that the "jungle bunnies" incident occurred as he described it. We also find that Mr Warwick subsequently told Mr Wheeler-Smith that his behaviour on that occasion was unacceptable. However, in finding that Mr Wheeler-Smith made the racial comments alleged by Mrs Borg, we have not found it necessary to take the "jungle bunnies" incident into account.

190 He also gave evidence that some time later he received a report, signed by Mr Campbell, declining the secondment because Mr Burke had taken too much sick leave. He said that when Mr Warwick hand delivered the report to him, he provided details of the issue between Mrs Borg and Mr Wheeler-Smith and said, in effect, that Mrs Borg had to get out. He also said that Mr Warwick said to him words to the effect:

"Stewart Campbell is pissed off with her and said that 'she can go to Silverwater. We are not going to put her where she wants to go'."

He said he replied with words to the effect:

"That's silly. Mulawa and Silverwater are close and they are going to meet."

He also said that Mr Warwick agreed with him.

191 After speaking with Mr Warwick, he said he referred the matter to Ms Vassallo who then made representations to Mr Woodham and, in due course, Mr Woodham approved the secondment. After the 3 month secondment had lapsed, he said he received a letter from Mr Campbell requesting her return to Mulawa. When Mrs Borg became upset and said she would not return to Mulawa, he said he called Ms Vassallo, who in turn called Mr Woodham, with the result being that Mrs Borg stayed at John Morony.

192 When cross-examined about his opposition to Mrs Borg being transferred to John Morony, Mr Campbell agreed that his resistance flowed from his general suspicion that in the past employees had sought to manipulate such transfers. The following exchange took place:

"Q: The triggers for the suspicion in relation to Mrs Borg were her complaint of stress.

A: Right, yes?

Q: And coupled with the fact that she had made a complaint of sexual harassment.

A: Yes.

Q: You were suspicious of requests for transfer when there were stress claims.

A: Yes."

193 Earlier in cross-examination, the following exchange occurred:

"Q: . . . Were you prepared to countenance a transfer of her to the MRRC or Parklea?

A: If that would tell me, yes, if she was genuine or not or she was just doing it to manipulate herself.

Q: Right. You took that as a measure of whether she was genuine or not.

A: Yes.

. . .

Q: . . . Is it fair to say that you were annoyed with Mrs Borg at this time?

A: Yes

Q: You were concerned that the combination of lodging a complaint of sexual harassment and it could somehow be used to give her assistance in her transfer.

A: Yes.

Q: The previous year when Ms Adams had made her complaint, you had become annoyed with her because you thought that she had used that to give support to a workers compensation claim. Is that right?

A: I could prove that, yes."

194 Mr Warwick gave evidence that Mr Campbell was resistant to the swap because Mulawa needed more female staff. In cross-examination, he agreed that Mr Campbell was annoyed with Mrs Borg because she wanted a transfer to John Morony. He also agreed that Mr Campbell was reluctant to let someone who had lodged a complaint to go to the gaol of their choice, and that he did not want the lodging of a complaint to somehow allow people to effect a transfer.

195 The following exchange occurred in cross-examination between Mr Warwick and Mr Beech-Jones:

"Q: And indeed you accepted that Mrs Borg was stressed and upset?

A: Yes.

Q: And I think you agree that at least from your perspective, leaving aside the question of whether she had lodged a complaint, the fact that she was stressed and upset would ordinarily tend to support her going to John Morony?

A: Yes.

Q: And in your experience if there was no complaint, the fact that she was stressed and upset would result in Mr Campbell supporting her going to John Morony?

A: Yes."

196 We understand Mr Beech-Jones to be submitting that the evidence discloses the following:

• Based on his previous experience with other employees, Mr Campbell was inherently suspicious of Mrs Borg's stated reason (after 13 December 1997) for seeking a transfer.
• Mr Campbell was opposed to Mrs Borg's transfer because he thought it would result in an "advantage" being gained by the making of a complaint.
• In these circumstances, the lodging of the complaint by Mrs Borg motivated Mr Campbell to resist the transfer when he otherwise would have supported it (given that Mrs Borg was upset and under stress at the time, and was a competent, well respected employee with a good work record and no prior history of rorting the system).
• Although Mr Campbell may have had other reasons for resisting the transfer (namely, that there was a shortage of staff at Mulawa and the proposed replacement, Mr Burke, was considered to be unsuitable), they do not detract from the fact that Mr Campbell's primary motivation was that he doubted the genuineness of Mrs Borg's claimed need for a transfer arising out of the events which formed the subject of her complaint.
• Accordingly, based on Mr Campbell's opposition to the transfer, the First Respondent subjected her to a detriment on the ground that she had lodged a complaint against Mr Wheeler-Smith.

197 Ms Brus' submissions are summarised below:

• Although Mrs Borg told Mr Campbell prior to December 1997 that she was having problems with Mr Wheeler-Smith, she did ot say that this was the reason why she wanted a transfer until after the December Gatehouse incident.
• Although Mrs Borg may have wanted to transfer, she did not need to do so. After December 1997, Mr Wheeler-Smith was substantially on leave until he was transferred out of Mulawa. There is no specific evidence that anyone else harassed or victimised her after she made the complaint about Mr Wheeler-Smith. In summary, life was not so unbearable for Mrs Borg that she needed to transfer.
• At the relevant time, Mr Campbell was faced with a shortage of staff at Mulawa. In particular, he did not want to lose a competent female prison officer (which Mrs Borg clearly was).
• Having had past experience with officers "scamming" their way out of Mulawa, Mr Campbell regarded every application for transfer with suspicion, not just applications associated with a complaint of sexual harassment or some other complaint against a prison officer.
• When Mr Campbell was unable to resolve Mrs Borg's grievance locally, he promptly forwarded the matter to Head Office on 6 January 1998.
• The First Respondent provided Mrs Borg with considerable assistance first, through Ms Vassallo and secondly, by Mr Woodham transferring her to her chosen location in May 1998.
• Mr Campbell wanted Mrs Borg to return to Mulawa at the expiration of the three month secondment because he didn’t have enough staff and needed good officers.

198 As we understand the Applicant's case, by delaying her transfer to John Morony the First Respondent subjected her to a "detriment". She claims that this delay was attributable to Mr Campbell's opposition to her transfer (an operative ground of which was the making of her complaint against the Second Respondent), and that the First Respondent is directly liable for Mr Campbell's act of victimisation.

Our Findings

199 We have previously found that the delay in transferring Mrs Borg constitutes a "detriment" within the meaning of s 50(1). The more difficult issue to determine is whether an operative ground of Mr Campbell's opposition to the transfer (and hence the delay) was the making of a complaint against Mr Wheeler-Smith.

200 The situation is complicated by the fact that Mrs Borg first lodged a transfer application in July 1997 and complained to Mr Campbell about Mr Wheeler-Smith prior to lodging a formal complaint. It is not entirely clear whether the Applicant is alleging that the delay which occurred prior to her formal complaint, forms part of an ongoing act of victimisation or whether it is only relevant as background information to later events. We discuss this below.

201 In our earlier findings, we stated that Mr Campbell first became aware of the nature of Mrs Borg's problems with Mr Wheeler-Smith shortly after the September Gatehouse incident. Whatever Mr Campbell's private views may have been at that stage about Mrs Borg's transfer, in circumstances where her reasons for seeking a transfer were not entirely clear (although she had said to him that she wanted to leave because of Mr Wheeler-Smith, she had not provided any details) and no replacement officer was available, we are unable to conclude that an operative ground of Mr Campbell's opposition to the transfer was that she had made an informal complaint against the Second Respondent. Accordingly, we are not satisfied that, at that stage, the delay in transferring her formed part of an ongoing act of victimisation. We propose to treat it as background information only.

202 After Mr Campbell became aware of the details of Mrs Borg's formal complaint against Mr Wheeler-Smith, the situation changed. The evidence discloses that sometime in early 1998, approval was given by Mr Warwick and Mr Alcorn for a swap to take place between Mrs Borg and Mr Burke. However, Mr Campbell did not approve the swap, ostensibly on the ground that he considered that Mr Burke had taken too much sick leave.

203 We have previously stated that we found Mr Warwick to be an honest, reliable and credible witness. Equally, we formed the same view of Mr Alcorn.

204 We are satisfied that after Mrs Borg had formalised her complaint against Mr Wheeler-Smith and Mr Burke's transfer had been approved by Mr Alcorn, Mr Warwick viewed her need to transfer as genuine and urgent, primarily because he was concerned about her emotional state. We are also satisfied that Mr Alcorn viewed her need to transfer as genuine and that it needed to be expedited.

205 It is clear that Mr Warwick did not share Mr Campbell's concerns about Mrs Borg's motives for wanting to transfer and that if the decision had been up to him, given the circumstances, he would have approved the swap with Mr Burke notwithstanding the shortage of female prison officers at Mulawa.

206 As noted previously, we found Mr Campbell's evidence on occasions to be unreliable and lacking in credibility, and that where his evidence was in conflict with that given by Mrs Borg, Mr Warwick and Mr Horgan, we preferred their evidence. In relation to Mrs Borg's victimisation claim, where there is a conflict in the evidence between Mr Warwick and Mr Campbell, we preferred that given by Mr Warwick.

207 We found Mr Warwick's evidence to be particularly persuasive. Of particular note, he said that had Mrs Borg not lodged a formal complaint, the fact that she was stressed and upset about the conduct of another officer would ordinarily have resulted in Mr Campbell supporting her transfer.

208 Based on the overall evidence, we are satisfied that:

• In a gaol setting, making a formal complaint against a senior officer was a difficult task and, once made, the intensity and stress of the situation would be magnified.
• Mrs Borg was a respected, competent officer with no history of rorting the system.
• Mr Campbell was aware that Mr Wheeler-Smith had been the subject of previous complaints.
• In the circumstances there was no valid reason to doubt the genuineness of Mrs Borg's reason for wanting a transfer (namely that she wanted to get away from Mr Wheeler-Smith).

209 We find that Mr Campbell was opposed to Mrs Borg being transferred to John Morony for several reasons:

• He did not want to lose her because she was a competent prison officer.
• At the time, Mulawa had a shortage of female prison officers.
• He did not consider Mr Burke to be a suitable replacement.
• He doubted the genuineness of Mrs Borg's claimed need for a transfer arising out of the events which formed the subject of her complaints.
• Notwithstanding his evidence to the contrary, he did not want Mrs Borg to be seen to have gained an advantage in effecting the transfer by having lodged a formal complaint.

210 We do not accept Ms Brus' submission that Mrs Borg did not need to transfer out of Mulawa. Admittedly, Mr Wheeler-Smith was transferred out of Mulawa on 18 March 1998. However, we are satisfied that, in the 3 months preceding his transfer, Mrs Borg and Mr Wheeler-Smith had contact with each other at work on many occasions. Mr Wheeler-Smith "guessed" the number to be less than 6. We prefer Mrs Borg's evidence that they had contact with each other in December 1997, early January 1998 and a few weeks somewhere in February to March.

211 Given these circumstances, we accept that Mrs Borg's stated reason for wishing to transfer (namely, to cease having any contact with Mr Wheeler-Smith) was totally genuine and that she herself regarded the need for a transfer as urgent. We are also satisfied that Mrs Borg held a genuine fear that, having lodged a complaint against Mr Wheeler-Smith, senior officers at the Centre would join ranks against her in sympathy for Mr Wheeler-Smith, thereby making it difficult for her to remain at Mulawa. In this regard, she said that from February 1998 until May 1998 a number of staff at the gaol either ignored her or would barely communicate with her. She specifically named a Senior Assistant Superintendent, Mr Wright (who gave evidence before us in Mr Wheeler-Smith's case), and an Assistant Superintendent, Mr Picton.

212 After carefully considering the matter, we find that Mr Campbell subjected Mrs Borg to a detriment on the ground that she had made a formal complaint against Mr Wheeler-Smith. While this was clearly not the only reason why Mr Campbell was opposed to the transfer, we are satisfied that it was a real or an operative ground of his opposition. Accordingly, provided that Mrs Borg can establish that the First Respondent is liable for Mr Campbell's conduct, she is entitled to a finding that her claim has been substantiated.

Liability of the First Respondent

213 We are satisfied that in his capacity as Governor of Mulawa, Mr Campbell clearly falls within the third category listed in M v R Pty Ltd. Accordingly, we find that the First Respondent is personally liable for his conduct.

Indirect Sex Discrimination

214 Given our finding above and the award of damages we propose to make (see para 234 below), we do not consider it necessary to determine the Applicant's alternative claim that the First Respondent's conduct contravenes s 25(2)(b).

Relief

215 The Applicant expressly asks the Tribunal not to make any findings in relation to Mrs Borg's clinical depression on the basis that this injury is being pursued in the workers' compensation jurisdiction. She also asks that any awards of damages exclude the effects of a car accident she had in November 1999.

216 Pursuant to s 113(1)(b)(i) of the Act, Mrs Borg seeks an order for general damages for hurt, humiliation and injury to her feelings in respect of each of the substantiated claims. In respect of the claims of sexual harassment and race discrimination, this provision permits us to order that the First and Second Respondents pay to the Applicant damages not exceeding $40,000 (for each claim) by way of compensation for any loss or damage suffered by reason of the Respondents' conduct. In respect of the claim of victimisation, we are permitted to make a similar order but only against the First Respondent.

217 Pursuant to s 113(1)(b)(iii), Mrs Borg also seeks an apology from each of the Respondents. This provision permits us to order the Respondents to perform any reasonable act or course of conduct to redress any loss or damage suffered by the Applicant.

218 To support her case that she was very deeply affected by Mr Wheeler-Smith's conduct and the conduct of the First Respondent, Mrs Borg relies on the distress, anguish and suffering it caused her and its consequential effects upon her self-esteem, confidence and relations with her family.

219 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:

"… [D]amages for such matters as injury to feelings, distress, humiliation and the effect on 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."

220 We find that during the period in question, Mr Wheeler-Smith's overall conduct towards Mrs Borg caused her a great deal of distress and had a significant impact on her psychological wellbeing and enjoyment of life. We also find that the consequent anger and hurt she experienced had an adverse impact on her relations with her husband and children, and that it played a significant role in the breakdown of her marriage and her subsequent separation from her family in February 2000.

221 We further find that the hurt, anger and feelings of hopelessness she experienced also played a significant role in her decision in June 2000 to take an overdose of sleeping and painkiller tablets.

222 In cross-examination, she said she had been miserable for 3 years as a result of Mr Wheeler-Smith's conduct and the consequential problems she had experienced with her husband. She said she had lost a lot of weight. In relation to her present condition, she said:

"My head is not improved, it is the same. I swallow a lot of tables, and without them, I can't live. I need sleeping tables; I can't sleep. I'm living away from my kids and my husband, what else do you want?"

223 We accept that the impact on her of Mr Wheeler-Smith's conduct necessitated regular visits to a psychiatrist, Dr Ahmed, from 22 May 1998 onwards. He was called by the Applicant to give evidence of her ongoing symptoms and the treatment he had prescribed for her. His evidence was generally consistent with that given by the Applicant herself.

224 We also find that Mrs Borg suffered additional hurt, humiliation and embarrassment during the course of the present proceedings, as a consequence of the suggestion made by the Second Respondent that she had told a series of lies and as a consequence of the attempts made by him to denigrate her character.

225 We further find that the First Respondent's failure to act promptly on her complaints heightened her anguish and distress.

226 It is the Applicant's case that any award of damages should allow for a "cushion" for economic loss or compensation for the effect upon her ability to obtain a promotion. She said that on 31 March 1998, when she attended for an interview for a promotion to the position of Senior Prison Officer, she was very upset as a consequence of having had a difficult few months (arising out of her formal complaint). She said she considered that this had affected her performance in the interview.

227 We accept Mrs Borg's evidence that the long-term effect of Mr Wheeler-Smith's conduct (and the First Respondent's inactivity) was to undermine her confidence in herself and to remove her desire to seek promotion. Had it not been for this conduct, we are satisfied that her long-term plan was to remain at Mulawa and be promoted to the position of Senior Prison Officer.

228 We accept that the successful applicants who were interviewed for the position of Senior Prison Officer in March 1998 were selected on merit. However we are satisfied that in the ordinary course of events, in time Mrs Borg would in all likelihood have received a promotion to Three Stripes. This finding is consistent with the generally accepted view of her as a competent, professional and well respected officer. Accordingly, we find that as a consequence of both the First and Second Respondent's conduct, Mrs Borg's opportunities for promotion and increased job satisfaction have been significantly diminished. We consider that any award of damages should adequately reflect this loss.

229 We consider that $27,500 is an appropriate amount to award the Applicant for her claim of sexual harassment. This figure includes the claim of sex discrimination relating to those incidents of sexual harassment which occurred prior to 4 July 1997.

230 The figure of $27,500 includes a specific amount of $7,500 for loss of promotional opportunities and loss of enjoyment at work. We consider it appropriate to make this award in relation to the claim of sexual harassment.

231 In relation to the claim of race discrimination, we find that Mrs Borg was humiliated, embarrassed and distressed by Mr Wheeler-Smith's conduct and the First Respondent's inactivity. We also find that it undermined her confidence in her ability to speak English and her ability to communicate. In relation to the December Gatehouse incident, we find that her humiliation and embarrassment was heightened by the fact that other officers were present.

232 We consider that $7,500 is an appropriate amount to award the Applicant for her claim of race discrimination.

233 In relation to the claim of victimisation, we find that Mr Campbell's opposition to Mrs Borg's transfer, and the ensuing delay in transferring her to John Morony, significantly added to her anguish and distress. We are satisfied that had she been transferred immediately a swap became available, much of the stress associated with putting Mr Wheeler-Smith "on paper" could have been alleviated. Instead, it escalated.

234 We consider that $12,500 is an appropriate amount to award the Applicant for her claim of victimisation.

235 In awarding each of the above amounts, we have not taken into account any evidence relating to the Applicant's clinical depression or the effects of a car accident she had in November 1999.

236 While we acknowledge that we have the power to order that the First and Second Respondents apologise to Mrs Borg, we do not consider that it is appropriate to do so. The Second Respondent has steadfastly denied the allegations and, in these circumstances, we are of the view that there would be limited benefit in issuing an apology which is not genuine.

Orders

237 In relation to the claim of sexual harassment, we order that the First and Second Respondents pay the Applicant within 21 days general damages in the sum of $27,500.

238 In relation to the claim of race discrimination, we order that the First and Second Respondents pay the Applicant within 21 days general damages in the sum of $7,500.

239 In relation to the claim of victimisation, we order that the First Respondent pay the Applicant within 21 days general damages in the sum of $12,500.