Brown v Richmond Golf Club & Anor

[2006] NSWADT 104

CITATION:	Brown v Richmond Golf Club & anor [2006] NSWADT 104
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Maree Alison Brown FIRST RESPONDENT Richmond Golf Club Ltd SECOND RESPONDENT Ronald Slym
FILE NUMBER:	051026
HEARING DATES:	15/11/05-16/11/05
SUBMISSIONS CLOSED:	02/20/2006
DATE OF DECISION:	04/07/2006
BEFORE:	Britton A - Judicial Member; Mooney L - Non Judicial Member; Schneeweiss J - Non Judicial Member
CATCHWORDS:	Sex Discrimination - In work - Sexual Harassment - In workplace - Victimisation
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Anti-Discrimination Act 1977
CASES CITED:	Briginshaw v Briginshaw (1938) 60 CLR 336 Duhbihur v Transport Appeal Board & anor [2005] NSWSC 811 Dutt v Central Coast Area Health Service (EOD) [2003] NSWADTAP 3 Hall v Sheiban (1989) 85 ALR 503 IW and City of Perth (1997) 191 CLR 1 O’Callaghan v Loder [1983] 3 NSWLR 89 O'Callaghan v Loder [1984] EOC 92-023 Reddrop v Boehringer Ingelheim Pty Ltd [1984] EOC 92-031 Shellharbour Golf Club v Wheeler [1999] NSWSC 224 Sivananthan v Commissioner of Police, NSW Police Service [2001] NSWADT 44 Waterhouse v Bell (1991) 25 NSWLR 99
REPRESENTATION:	APPLICANT In person FIRST RESPONDENT P Moorehouse, barrister SECOND RESPONDENT In person
ORDERS:	1. The complaints of victimisation and sex discrimination made against the First Respondent are dismissed; 2. That part of the complaint of sexual harassment that relates to the use of inappropriate language by the Second Respondent is substantiated; 3. The balance of the complaints made against the Second Respondent are dismissed.

1 Maree Brown alleges that she was sexually harassed in the course of her employment with the Richmond Golf Club, by the Club’s General Manager, Ronald Slym. She contends that shortly after Mr Slym commenced working at the Club, he made a sexual advance at her. He gives a more innocent account and claims he did nothing more than attempt to give her a ‘good night kiss’. In addition, Ms Brown alleges that Mr Slym harassed her by calling her ‘Babe’ and ‘Sexy’. She further claims that her working relationship with Mr Slym went into free fall after she made it clear that his amorous advances would not be returned, leading ultimately to her demotion from the position of second-in-charge at the Club.

2 Ms Brown contends that the Club is liable for the conduct of Mr Slym because it did not take reasonable steps to prevent the harassment and failed to stop him victimising her after she had complained being the misconduct.

3 The Club contends that the Tribunal could not be satisfied to the requisite standard that Mr Slym sexually harassed Ms Brown in the manner she alleged. If the Tribunal found otherwise, the Club argues that it should not be found liable for that misconduct, as it was done without its authorisation. The Club and Mr Slym refuted that Ms Brown was victimised because she had made an allegation of sexual harassment.

Referral by Board

4 The Anti-Discrimination Board referred three complaints to the Tribunal lodged by Ms Brown. Namely, a complaint of sexual harassment (s 22B of the Anti-Discrimination Act 1977 (NSW) (‘the Act’)), discrimination on the ground of sex (s 24 of the Act) and victimisation (s 50 of the Act). We deal with each complaint in turn.

Admission of additional evidence

5 Before dealing with the substantive issues it is necessary to dispose of a procedural point raised by both respondents.

6 At the conclusion of the hearing, directions were made requiring the parties to make written submissions. All complied with that direction. Ms Brown filed a 25 page document, which was accompanied by a number of attachments including an affidavit deposed by former Club General Manager, Craig Bartlett. The first part of that submission, entitled 'Chronology of Events', amounts to a revised version of Ms Brown’s witness statement tendered in these proceedings (Exhibit A1). It includes additional evidence and a number of minor variations to the evidence she gave in the proceedings. In submissions in reply, Ms Brown provided the 'Chronology of Events' in affidavit form and additional submissions.

7 Both respondents complain that Ms Brown has in effect attempted to reopen her case by seeking to have this evidence introduced.

8 Ms Brown represented herself in these proceedings, as did Mr Slym. The Club was represented by Mr Moorehouse of Counsel. Ms Brown contends that the ‘new evidence’ now challenged by the respondents ought be admitted as she was in effect ‘ambushed’ in the hearing. Contrary to the directions made by the Tribunal on 8 June 2005, which required all parties to file all of their evidence in advance of the hearing, Ms Brown contended that both respondents introduced further evidence through witnesses in the hearing itself. While not particularised, we understand Ms Brown to refer to Exhibits R 3, R 4, R 5, R 6, R 7, R 8, R 11, R 12 and R 13.

9 In deciding whether those parts of Ms Brown’s submissions that contain evidence additional to or in conflict with that given in these proceedings should be taken into account, it is instructive to look to the rules governing procedural matters within the Tribunal. Section 73(1) of the Administrative Decisions Tribunal Act 1997 (Tribunal Act) gives the Tribunal broad power to determine its own procedure. The Tribunal must act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal form (s 73(3)); it is not bound by the rules of evidence and, subject to the rules of natural justice, can inform itself in such manner as it thinks fit (s 73(2)); it must take such measures as are ‘reasonably practicable’ to ensure the parties have the fullest opportunity practicable to be heard (s 73(4)(c)).

10 We recognise the considerable difficulties faced by self-represented parties in this jurisdiction. The legislation is complex and the task of obtaining and presenting evidence can be difficult. It is a matter of common knowledge that many self-represented litigants struggle to distinguish submissions from evidence and, commonly, the evidence they seek to present is replete with submissions, and vice versa. Where this occurs some indulgence ought to be granted as to do otherwise could effectively preclude parties who do not have the benefit of legal representation from prosecuting or defending their case in this jurisdiction and could sit uncomfortably with the Tribunal’s obligation to provide all parties with the fullest opportunity practicable to be heard.

11 While the Tribunal has a discretion to admit additional evidence after a hearing has concluded but before a decision is handed down, there must be compelling reasons for doing so as such step would necessitate the hearing to be recalled and the parties given the opportunity to test that evidence. There is a public interest, as reflected in s 73(5)(a), for matters to be finalised within a reasonable time frame.

12 We accept that Ms Brown genuinely believes that she has been ambushed to an extent and there is some strength in her claim that some of the evidence tendered through the respondents’ witnesses should and could have been filed before the commencement of these proceedings in line with the Tribunal’s directions. Much of the evidence, however, was ultimately irrelevant to the matters we are required to determine, for example, damages (Exhibits R 5 and R 8) or conduct which occurred after the complaint was made to the President (Exhibits R 6 and R 7). Ms Brown was invited to object to that material but did not. It is apparent from an examination of the offending material that little if any could be considered ‘new’ and many of the documents had been obtained through the issue of a summons on Ms Brown.

13 Even though she is self-represented, we do not consider this to be an appropriate case to exercise our discretion to admit new evidence at this stage of the proceedings. Accordingly, we have not had regard to any additional evidence contained in Ms Brown's submissions.

Standard of proof

14 In determining whether Ms Brown has established her complaints, 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 both respondents. See the remarks of Dixon J (as he then was) in Briginshaw v Briginshaw ((1938) 60 CLR 336 at 361 – 362. See also Dutt v Central Coast Area Health Service (EOD) [2003] NSWADTAP 3. Duhbihur v Transport Appeal Board & anor. [2005] NSWSC 811.

Complaint 1: Sexual Harassment

15 Section 22B of the Act makes it unlawful for an employee to sexually harass a fellow employee. A person sexually harasses another for the purpose of the Act 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.

16 Ms Brown alleges that Mr Slym made a pass at her after dinner on 27 June 2003 and also addressed her as ‘Babe’ ‘Sexy’, ‘office lady’ and ‘pay mistress’. To succeed in her complaint she must establish first that the alleged conduct occurred and, if so, that it constitutes ‘sexual harassment’ as defined by the Act.

The Kiss Allegation

17 Four days after taking up the position of General Manager, Mr Slym invited Ms Brown to dine with him at a small restaurant in North Richmond. Their respective accounts about that evening differ.

18 Ms Brown alleged that throughout the dinner Mr Slym called her ‘Babe’ and stroked her hair. Mr Slym denies touching Ms Brown but admits that he might have called her ‘Babe’. Ms Brown’s central allegation is that after the dinner Mr Slym kissed her in an amorous fashion without her consent. In a complaint to the President lodged six months later, Ms Brown claimed, ‘when we left the restaurant and approached my car he leaned on the side and pulled me into his arms, kissing my face. I broke the embrace and tried to ignore the incident occurred’. This is broadly consistent with Ms Brown’s account given in these proceedings (Exhibit A1 p 3). In a statement to Police given a few weeks before lodging her complaint with the Board, Ms Brown claimed ‘Ron grabbed me with both hands and pulled me over towards him. I recall the top of my body was touching the top of his body. Ronald kissed me on the lips. Ronald was not just trying to kiss me it was like a full on embrace’.

19 Mr Slym denies either kissing or grabbing Ms Brown and has consistently stated that he did nothing more than attempt to kiss her on the cheek. On his account it was what his mother would describe as a ‘peck on the cheek’.

20 After the alleged kiss, Ms Brown drove Mr Slym to his hotel. They did not discuss the incident and Mr Slym made no further advances.

21 On 22 July 2003, Ms Brown told Club President, Kevin McKinlay, that she had been sexually harassed by Mr Slym. Mr McKinlay’s unchallenged evidence is that when Ms Brown first told him about the incident she alleged that Mr Slym ‘tried to kiss me’ and made no mention of being pulled towards him. Mr McKinlay said that when he put the allegation to Mr Slym a few days later, he admitted to kissing Ms Brown, although in a more innocent manner than she alleged: ‘I made no advances to her other than to give her a kiss on the cheek as one does a friend when we were leaving’. Mr Slym’s account given in these proceedings contradicts Mr McKinlay’s evidence. He claims that he told Mr McKinlay that ‘it was peck on the cheek and it did not even make contact’.

22 According to Mr McKinlay, in a meeting held about a week later, attended by Ms Brown, Mr Slym and himself (the round table meeting), Ms Brown did not challenge Mr Slym’s account of the ‘attempted kiss’.

23 It is argued for the Club that the Tribunal could not be properly satisfied that any sexual harassment occurred at the dinner. It points to, among other things, the discrepancies in the accounts given by Ms Brown, notably her first report to Mr McKinlay that ‘[Mr Slym] tried to kiss me’ and the omission of any mention of ‘being pulled towards’ him. In addition, the Club points to Mr McKinlay’s account of the subsequent round table meeting which, it contends indicates that Ms Brown at that time accepted Mr Slym’s version of events.

24 Mr McKinlay’s evidence, in our view, assists neither party. His account of what each party first told him about the dinner contradicts their respective accounts given in these proceedings.

25 Nor do we accept the Club’s argument that Ms Brown’s failure to challenge Mr Slym’s claim of an ‘attempted kiss’ at the round table meeting casts doubt on her allegation. Given the nature of the meeting we do not believe this to be determinative. That meeting did not take the form of a formal inquiry or investigation. Its focus was on Mr Slym’s and Ms Brown’s future working relationship and its tone conciliatory. Ms Brown’s explanation that she had tried to be as ‘discreet as possible’ and that by then her main concern was not the sexual harassment but a fear that that she was being victimised, is plausible and accepted by us. Given those circumstances it is not surprising that Mr Slym’s account at that meeting went unchallenged.

26 Having scrutinised all the evidence we conclude that there is no discernible basis to make an accurate finding about which party’s account of the kiss or attempted kiss is true or to be preferred. There were no independent witnesses to the event. There is no extrinsic evidence that would tip the balance one-way or the other. Both parties appeared to be plausible witnesses. Under questioning, neither resiled from their account given in their respective statements. While, as noted, there are some minor inconsistencies in the accounts given by Ms Brown, she has never resiled from her central allegation that Mr Slym kissed her in an amorous fashion without her consent. It is possible that he did kiss and pull Ms Brown towards him as she alleged. However, for the reasons given we could not be comfortably satisfied to the requisite standard that he did so.

27 Does the conduct constitute sexual harassment? While we have made no positive finding about the alleged kiss we will consider whether, if Mr Slym’s more innocent account were to be accepted, it would constitute ‘sexual harassment’ as defined by the Act.

28 To constitute sexual harassment the attempted kiss must fall within paragraph (a) or (b) of the definition set out in s 22A. The attempted kiss could not in our view be characterised as a sexual advance or a request for sexual favours and therefore it would not meet the test set out in paragraph (a).

29 To fall within paragraph (b) it must be established that the attempted kiss was, first, unwelcome conduct of a sexual nature and, second, that a reasonable person, having regard to all the circumstances, would have anticipated that Ms Brown would have been offended, humiliated or intimidated.

30 That the conduct was unwelcome is not in issue. The issue is whether it was conduct of a sexual nature. It will not always be immediately apparent whether an attempted or actual kiss constitutes conduct of a ‘sexual nature’. It depends on the context. Mr Slym said that it was a one-off incident; he attempted to place the kiss on Ms Brown’s cheek and did not embrace or restrain her or attempt to do so. If that account is accepted, we do not believe that the conduct could be said to have the necessary sexual character. In addition, it seems to us that the second element of the test would not be satisfied, that is, a reasonable person could not have anticipated that Ms Brown would have been offended, humiliated or intimidated.

31 For these reasons we conclude that the alleged attempted kiss would not meet the statutory test of sexual harassment. We emphasise that these comments should not be taken to indicate that we have accepted Mr Slym’s account.

Inappropriate Language Allegation

32 In her statement, Ms Brown claimed that Mr Slym addressed her as ‘Babe’ ‘Sexy’ each on one occasion. Mr Slym agreed that he used the term ‘Babe’ but denies calling Ms Brown, or anyone else, ‘Sexy’. He also admitted to ‘Honey’ and perhaps ‘Sweetie’.

33 It is not in issue that at the late July meeting Mr Slym apologised for calling Ms Brown ‘Babe’ and ‘Honey’. On Ms Brown’s account, Mr Slym did not call her by these names after 2 July.

34 The only material factual issue in dispute is whether Mr Slym called Ms Brown ‘Sexy’. Mr McKinlay’s account of that meeting (Exhibit R 1, paragraph [10]) made no reference to Mr Slym’s alleged use of the term ‘Sexy’.

35 In the absence of any supporting evidence we are not satisfied to the requisite standard that he did call Ms Brown ‘Sexy’.

36 Does the conduct constitute sexual harassment? As we understand the Club’s submissions the first limb of paragraph (b) of the definition is not satisfied as Mr Slym stopped addressing Ms Brown as ‘Babe’ and ‘Honey’ as soon as he was told that she objected to this. From this we understand it to be argued that the offending conduct could not be characterised as ‘unwelcome’.

37 We do not agree with that submission. In our view it is not necessary for a complainant to establish that the perpetrator was aware that their conduct was ‘unwelcome’. It is enough that the victim considered it to be so. In contrast to the second limb of the test this is a subjective rather than objective test.

38 The more difficult question is whether the use of this language constitutes conduct of a sexual nature. This turns on the context in which the words and their meaning.

39 The Macquarie Dictionary’s Book of Slang offers the following definitions:

“Babe” – noun 1. a familiar term of address to a woman: Hey, Babe. How’ve you been? 2. a sexually attractive female. 3. a sexually attractive male; and

“Honey” – noun 1. an extremely good-looking person. 2. a term of endearment; sweet one; darling.

40 While suggestive of a level of familiarity and possibly intimacy between the addressor and addressee these terms are also ambiguous. Context here is everything.

41 This, from what we know, was a conservative club in middle Sydney where as Mr McKinlay’s insistence that Mr Slym apologise to Ms Brown indicates that language of this sort was not commonplace.

42 Language may be overly familiar, disrespectful and even boorish without having sexual overtones or undertones, although the two kinds of communications may overlap. It is, we think, common enough that language which in one context may be regarded as flirtatious will, in another, have no sexual connotations at all. For example, a bar attendant, familiar with her ‘usuals’, may address them as ‘sweetheart’ or ‘love’ and her clientele may be similarly affectionate in their familiarity with her. In such a case, all know where they stand with one another. These terms may be the pillow talk of lovers. It all depends on the circumstances of the case.

43 The circumstances here included the inequality of the relationship between Ms Brown and Mr Slym; their relatively recent acquaintanceship; the invitation to dinner; and the inherent over-familiarity of the terms used by Mr Slym in that context. These factors all combine to suggest that the use of the language was conduct of a sexual nature. Mr Slym’s subsequent apology suggests an awareness, perhaps blinkered, but nonetheless real, that he had overstepped the mark with Ms Brown.

44 It may be, as Mr Slym claimed, that he used this type of language to address all women. It may also be, as we understand him to imply, that few told him they found it offensive. The issue here however is not whether women at large would have been offended or whether Mr Slym thought they might have been, but whether having regard to all the circumstances, a reasonable person would have anticipated that Ms Brown would have been offended by that conduct. Having regard to all thee circumstances we are satisfied that a reasonable person would have anticipated that Ms Brown would have been offended by being addressed as ‘Babe’ and ‘Honey’ by Mr Slym.

45 While we do not consider these terms to have been at the high end of the scale insofar as this kind of conduct goes, we are comfortably satisfied that the conduct, taken as a course of conduct, satisfies the definitions of sexual harassment in s 22A(b).

46 ‘Office lady’ and ‘pay mistress’ Ms Brown contends that Mr Slym sexually harassed her by describing her as the ‘office lady’ and ‘pay mistress’. We fail to understand how these terms can be said to have to any sexual connotation or constitute conduct of a sexual nature. This claim in our view is misconceived.

Complaint Two: Sex Discrimination

47 Ms Brown alleges that Mr Slym, by sexually harassing her and using ‘sexist language’, discriminated against on the grounds of sex. Section 25(2) makes it 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.

48 We understand Ms Brown to rely on ss 25(2)(a) and 25(2)(c) of the Act.

49 Sexual harassment Sexual harassment at the workplace by a person other than the employer can constitute sex discrimination for the purpose of s 25 where that conduct occurred in the course of the complainant’s employment and the employer is found to be vicariously liable for that conduct. Before the insertion of ss 22A and 22B sexual harassment was recognised as a species of sex discrimination under s 25(2): O’Callaghan v Loder [1983] 3 NSWLR 89; Hall v Sheiban (1989) 85 ALR 503.

50 Given our earlier finding, it is not necessary to consider whether the alleged kiss is caught by s 25(2).

51 To establish that the use of the terms ‘Honey’ and ‘Babe’, falls within s 25(2) Ms Brown must prove:

First, that she was subjected to a ‘detriment’ (s 25(2)(c)) and/or that her terms and conditions of employment had been affected.

Second, that, a male employee was, or would have been treated more favourably in the same or similar circumstances.

Third, that one of the reasons for any less favourable treatment received was because she was a woman.

52 If the above elements are proven, the onus shifts to the Club to prove it did not authorise the offending conduct (s 53 of the Act).

53 A detriment. It falls then to consider whether by using this language, Mr Slym subjected Ms Brown to a detriment. The word ‘detriment’ in the context of s 25(2)(c) is to be given its ordinary meaning of ‘loss, damage or injury’ (the Macquarie Dictionary, 3rd edition, The Macquarie Library.) The detriment suffered must be ‘real and not trivial’ and ‘whether something constitutes a detriment must be determined objectively and not subjectively’: Sivananthan v Commissioner of Police, NSW Police Service [2001] NSWADT 44 at [41].

54 It seems to us that that Ms Brown was subjected to a detriment notwithstanding the relatively mild nature of the language and its infrequent use.

55 Less favourable treatment and causation. We have no evidence of how Mr Slym addressed male employees. In the absence of any evidence of an actual comparator, the determination of less favourable treatment must rely on a hypothetical or notional comparator that is, a male employee in the same, or not materially different circumstances, to Ms Brown.

56 We are satisfied that Mr Slym would not have addressed a male employee as ‘Honey’ or ‘Babe’ and accordingly less favourable treatment is established.

57 The inescapable conclusion is that one of the reasons Mr Slym addressed Ms Brown as he did was because she is a woman.

58 Sexist language. Before turning to the issue of the Club’s liability we deal with Ms Brown’s contention that the use of the terms ‘office lady’ and ‘pay mistress’ constitutes sexist language. We understand her to contend that their use constitutes both sexual harassment and the use of sexist language. The claim of sex harassment has been dealt with above.

59 We accept Ms Brown’s contention that the use of sexist language by a manager could give rise to a ‘hostile working environment’ and constitute sex discrimination within the meaning of s 25(2). However, we are not persuaded that these words necessarily carry a sexist connotation as distinct from, as the Club argues, being merely old fashioned. But in any event from the limited information before us about the context in which Mr Slym used these words we are not persuaded that their use could constitute sexist conduct on his part.

60 It may be, as we understand Ms Brown to contend that Mr Slym holds sexist attitudes about women and their ability to participate in the workplace. Of itself this does not constitute conduct capable of falling within s 25(2). It must be established that Mr Slym went on to act on those views to Ms Brown’s detriment and/or in a way that adversely affected her terms and conditions of employment.

61 Summary. The use of the terms ‘Honey’ and ‘Babe’ by Mr Slym is capable of falling within ss 25(2)(a) and 25(2)(c) of the Act.

62 Vicarious Liability. Section 53(1) of the Act sets out the circumstances in which the Club, as Mr Slym’s employer, can be liable for his acts of sexual harassment:

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.

63 It falls to the Club to prove that it did not authorise the offending conduct, namely, the use of the terms ‘Honey’ and ‘Babe’: s 104 of the Act.

64 Studdert J in Shellharbour Golf Club v Wheeler [1999] NSWSC 224 at [33] set out the following statement of principle about the operation of s 53:

[A]s I construe s 53(1) once it was established that the misconduct occurred in the workplace environment and the offender was ostensibly at the time acting in the discharge of responsibilities as agent for his principal, what he did was deemed to be done by his principal, unless the conduct was unauthorised by the principal either expressly or by implication.

65 His Honour went on to consider in some detail the meaning of the term ‘authorise’ in the context of s 53(1):

The meaning may differ depending upon the statutory provision in which it is found. Thus in University of New South Wales v Moorhouse (1974-75) 133 CLR 1 the High Court had occasion to consider the word “authorise” in the setting of s 36 of the Copyright Act, 1968. In this context Gibbs J said at 12-13:

“The word ‘authorize’, in legislation of similar intendment to s 36 of the Act, has been held judicially to have its dictionary meaning of ‘sanction, approve, countenance’: Falcon v Famous Players Film Co. [1926] 2 KB 474 at 491’ Adelaide Corporation v Australasian Performing Right Association Ltd (1928) 40 CLR 481 at 489, 497. It can also mean ‘permit’, and in Adelaide Corporation v Australasian Performing Right Association Ltd (1928) 40 CLR 481 ‘authorize’ and ‘permit’ appear to have been treated as synonymous. A person cannot be said to authorize an infringement of copyright unless he has some power to prevent it: Adelaide Corporation v Australasian Performing Right Association Ltd (1928) 40 CLR at 497-498, 503. Express or formal permission or sanction, or active conduct indicating approval, is not essential to constitute an authorization; ‘Inactivity or “indifference, exhibited by acts of commission or omission, may reach a degree from which an authorization or permission may be inferred”’: Adelaide Corporation v Australasian Performing Right Association Ltd (1928) 40 CLR at 504. However, the word ‘authorize’ connotes a mental element and it could not be inferred that a person had, by mere inactivity, authorized something to be done if he neither knew nor had reason to suspect that the act might be done. Knox CJ and Isaacs J referred to this mental element in their dissenting judgments in Adelaide Corporation v Australasian Performing Right Association Ltd. Knox CJ (1928) 40 CLR at 487 held that indifference or omission is ‘permission’ where the party charged (amongst other things) ‘knows or has reason to anticipate or suspect that the particular act is to be or is likely to be done’. Isaacs J apparently considered that it is enough if the person sought to be made liable ‘knows or has reason to know or believe’ that the particular act of infringement ‘will or may’ be done.

66 As the offending conduct, took place in the course of Mr Slym’s employment the Club will be liable for it unless it can establish that it did not, either before or after the conduct, authorise Mr Slym, expressly or by implication, to act as he did.

67 It is common ground that about two weeks before the round table meeting Mr Slym had stopped calling Ms Brown ‘Honey’ and ‘Babe’. Mr McKinlay made it clear that the use of this language was unacceptable. Mr Slym was directed to apologise and did so. Mr McKinlay invited Ms Brown to bring to him any further concerns she might have about Mr Slym.

68 Ms Brown submits that the failure by the Club to monitor Mr Slym's conduct after this meeting or take further steps, such as providing sexual harassment training to staff, constitutes implied authorisation of Mr Slym’s conduct.

69 Had the offending conduct continued it would be necessary to examine the steps taken by the Club after the meeting to determine whether authorisation could be inferred from its alleged inactivity. However, it did not. Having regard to all the circumstances we are satisfied that the Club did not either expressly or by implication, authorise Mr Slym to address Ms Brown as ‘Honey’ or ‘Babe’.

70 It is plain from the terms of s 25 that a complaint of sex discrimination can only be brought against the Club as Ms Brown’s employer and not against Mr Slym in a personal capacity. Given our finding that the Club did not authorise Mr Slym to address Ms Brown as ‘Honey’ or ‘Babe’, the complaint of sex discrimination must fail.

Complaint Three: Victimisation

71 Ms Brown claims that the Club, and Mr Slym, in breach of s 50 of the Act:

Attempted to change her hours of work.

Required her to wear a uniform.

Isolated and segregated her within the Club.

Failed to counsel and or discipline Mr Slym, or provide training or performance appraisal (the Club)

Demoted her.

Accepted unjustified documented performance criticism (by the Board)

Criticised her performance (Mr Slym)

72 The starting point in any claim made under s 50 is the identification of the act alleged to trigger the alleged detriment. Ms Brown must establish on balance that Mr Slym and/or the Club subjected her to a detriment(s) on the ground that she did at least one of the things set out in s 50(1), namely:

(a) brought proceedings against the discriminator or any other person under this Act,

(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act,

(c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or

(d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person,

or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.

73 As we understand Ms Brown’s case, she alleges that Mr Slym started to treat her differently when it became clear that his amorous advances would not be returned. If proven, this would not ground a complaint of victimisation. Ms Brown must establish that she suffered a detriment ‘on the grounds’ that she had done one of the things listed in s 50(1) or, because Mr Slym, and or the Club, suspected that she had done or intended to do so.

74 There is no evidence, nor is it asserted, that Mr Slym knew or suspected that Ms Brown would make a complaint of sexual harassment before Mr McKinlay notified him that she had done so on 24 July 2003. Nor is there any evidence that Mr McKinlay knew of the allegation until two days earlier when he met with Ms Brown. It follows that any conduct which predated 22 July cannot ground a complaint of victimisation, that is the proposed change to Ms Brown’s hours, first raised on 15 July, and the requirement that she wear a uniform, which came into effect earlier in that month.

75 ‘Documented performance criticism’ We understand this claim to relate to the paper prepared by Mr Slym and apparently presented to the Board (Attachment 7 to Exhibit A1).

76 The paper sets out Mr Slym’s initial impressions of the Club. It contains mixed comments about Ms Brown’s performance and describes her as ‘[e]xperienced but not qualified…efficient hard working … very loyal to the Club. During the absence of the manager the Board was lucky to have such a person of her capability and attitude on hand’. It goes on to state, ‘…Maree is grandly called the “Administration Manager”. Office Manager would clearly be more appropriate as obviously Maree is incapable of managing trained people’. Mr Slym handed Ms Brown this report, or an extract of it, on 17 July. It follows that even if the presentation of the report to the Board constituted a ‘detriment’ its preparation could not be linked to Ms Brown’s allegation of sex harassment.

77 There is no evidence that would enable us to establish when the report was presented to the Board (i.e. whether it was presented before or after 24 July 2003). Given this and in the absence of any information about the steps, if any, taken by the Board on receiving the report, it could not be said that Ms Brown either suffered a detriment, or did so as a consequence of having made an allegation of sexual harassment.

78 For these reasons the preparation of the report and its presentation to the Board could not constitute a complaint of victimisation.

79 Failure to counsel or discipline Mr Slym. We understand Ms Brown to contend that the Club’s failure to counsel or discipline Mr Slym, is conduct caught by s 50. It is instructive to examine the opening words of s 50, which makes it unlawful for a person (the discriminator) to subject another person (the person victimised) to any detriment in any circumstances.

80 While the failure to discipline Mr Slym could be relevant to determining the issue of the Club’s liability through the operation of s 53, it seems to us that it could be not be said to have ‘subjected Ms Brown to a detriment’, particularly given that the offending conduct had already stopped by the time it was reported to Mr McKinlay.

81 Remaining acts of alleged victimisation. We are left, therefore, with three separate but related alleged acts of victimisation: the criticism of Ms Brown’s performance, her isolation within the Club, and her ultimate demotion.

82 ‘On the Grounds of’. In respect of these remaining claims, Ms Brown must establish that Mr Slym and/or the Club acted as he and or it did ‘on the grounds’ that she had made a complaint of sex harassment.

83 Section 4A of the Act has no application to the operation of s 50. It provides that where an act is done for two or more reasons and one consists of unlawful discrimination, then the act is taken to have been done for that reason, whether or not it is the dominant or substantial reason.

84 The Act does not define what is meant by the expression ‘on the grounds of’. Guidance is to be found in those cases that considered this term in the context of discrimination on substantive grounds before the 1994 amendment to the Act, which inserted s 4A, took effect. The NSW Law Reform Commission in its Review of the Anti-Discrimination Act 1997, (NSW) Report No 92 at [7.155-7.158] notes that before the 1994 amendment, two approaches were generally followed. The first required a determination of whether the unlawful conduct constitutes a ‘significant factor’ in the decision-making process (see O'Callaghan v Loder [1984] EOC 92-023 at 75,499; Reddrop v Boehringer Ingelheim Pty Ltd [1984] EOC 92-031 at 75,569.) The second required a determination of whether one of the ‘real or operative’ grounds for doing the act was a proscribed ground of discrimination. (See Waterhouse v Bell (1991) 25 NSWLR 99 at p 106 and IW and City of Perth (1997) 191 CLR 1 at pp 62-64).

85 The second of those approaches was adopted in Sivananthan v Commissioner of Police, NSW Police Service [2001] NSWADT 44 at [40]-[43] where the test was stated to be: ‘sufficient if the unlawful reason, that is the fact that the complainant had lodged complaints of ... discrimination, had a real causative effect in the sense that but for its presence the act complained of would not have occurred’. We adopt that test in these reasons.

86 To put the remaining allegations in context, it is necessary to briefly recite the circumstances surrounding them.

87 Proposed changes to hours of work. On 15 July Mr Slym told Ms Brown that he intended to change her hours of work from 7.30am to 4 pm, to 9am to 5pm.

88 Ms Brown’s hours had remained unchanged since she commenced at the Club. She thought the proposal unreasonable and told Mr Slym as much. Mr Slym thought otherwise. A heated exchange followed. Ms Brown alleges that the meeting ended with Mr Slym saying ‘I would have to consider my level of the consultation with you’ to which she responded, ‘Do I have to become a less valuable employee because I have the hide to defend myself?’

89 Mr Slym claims that when he first commenced at the Club he had been instructed by the Board to review Ms Brown’s hours of work.

90 Round table meeting. At this meeting held in later July attended by Messrs McKinlay, Slym and Ms Brown, Mr McKinlay told both parties that Ms Brown’s conditions of employment were not to be changed without his consent. Mr Slym apologised for the alleged attempted kiss and his use of inappropriate language. Mr Slym and Ms Brown stated that they would attempt to work together in the future.

91 On Mr McKinlay’s account, the meeting went well and Ms Brown was given every opportunity to raise her concerns. Ms Brown thought otherwise. In her view the meeting had been a ‘whitewash’ and Mr McKinlay’s treatment of her concerns perfunctory.

92 Isolation within the Club. Ms Brown claimed that following this meeting she became increasingly ‘ignored, isolated and segregated’ within the Club and seldom had any direct dealings with Messrs Slym or McKinlay, or other members of the Board. This, she claimed, was in stark contrast with the practice up to that time.

93 Mr McKinlay did not dispute that in the second half of 2003 he had less to do with Ms Brown. He conceded that in the hiatus following the resignation of former Club Manager, Craig Bartlett, he frequently attended the Club and was in close and regular contact with Ms Brown who he relied on to assist him in his role as caretaker. He claims that after Mr Slym’s induction there was no need for him to attend the Club on such a frequent basis.

94 Mr Slym denied that he ignored or isolated Ms Brown after the round table meeting. He asserted that it had never been his practice to sit around and chat with her and seeking her counsel: ‘After 30 years in this industry I don’t need a Maree Brown to give me the benefit of her experience in Club land.’ He conceded, however, that in the later part of 2003 he was not getting on with Ms Brown and was ‘starting to treat her with a great deal of caution’. He denied that the problems ‘ I was having personally with Maree impacted on the job’ and claimed that the reason they didn’t sit around and chat was not because of any personal animosity but because they were both busy. He claims ‘[s]he was never in the loop. I did my work, she did hers’.

95 On his account, weekly staff meetings, which Ms Brown attended, continued to be held throughout 2003.

96 Demotion. Ms Brown claims that her ‘demotion’ in November 2003 she had been the Second-in-Charge to the General Manager. She pointed out that she was the only member of staff member invited to the Board lunch held to welcome Mr Slym and that, in the two months before his appointment she had effectively acted as General Manger.

97 Ms Brown’s formal title was ‘Office Administrator’. She was the only person employed in the office of the Club apart from a part-time bookkeeper and the General Manager.

98 Both respondents dispute Ms Brown’s claim and point to the advertisement for her position, which makes no mention of the title ‘Second in Charge’ or an equivalent. Nor, they argue, did Ms Brown’s statement of duties list deputising for the General Manager.

99 On 20 October Ms Brown commenced two weeks annual leave and on the same day Miles Goldfinch commenced at the Club. Ms Brown learnt that he had been appointed as Mr Slym’s 2-I-C later the following month.

100 Mr Goldfinch was appointed following the resignation of part-time employee, Brechyn Hoskins. Ms Hoskins had been responsible for the coordination of Club functions and the supervision of bar staff.

101 Mr Goldfinch was appointed to the position of ‘Club Supervisor’ and paid a higher salary than Ms Hoskins and Ms Brown. Mr Slym claimed he had decided to upgrade Ms Hoskins’s position as he thought it necessary that someone be given overall responsibility for overseeing the trading floor, especially given that the Club was about to undergo extensive renovations and that various initiatives designed to boost patron numbers were on foot.

102 Discrepancies in finances. Ms Brown had been responsible for, among other things, recording and balancing the Club’s daily takings. In the second half of 2003 she regularly identified and reported to Mr Slym discrepancies between the cash taken and the record of those takings. It is common ground that this ‘missing money’ was usually eventually accounted for.

103 Shortly before Mr Goldfinch’s appointment, at Mr Slym’s instruction, Ms Brown outlined how she reconciled the daily takings. He criticised those procedures. An altercation followed. Ms Brown then sought the assistance her union, the Club Managers Association. On 3 November the CMA wrote to the Club. That letter was not produced in these proceedings. However it is apparent from the Club’s reply that the Union had alleged that ‘Ms Brown’s integrity had been challenged because she had made a complaint of harassment’.

104 According to Ms Brown, when she returned to work in early November she discovered that the books were ‘in a mess’. On 27 November she met with Mr Slym and reported a $3,200 discrepancy. It is common ground that Mr Slym told Ms Brown to take the matter up with ‘Miles, the 2-I-C’. In her statement to police given a week after the incident, Ms Brown gave this account of the meeting:

MB: ‘Is this my notice of demotion?’

RS: ‘Yes. It’s not a notification of demotion you were never second in charge. You’re the one who bought the CMA into it’.

105 That account varies from that set out in Ms Brown’s statement in which she alleged that Mr Slym had said, ‘You could never be my 2-I-C…the underbanking is all your fault’. Mr Slym admits having said ‘you could not be my 2-I-C’ but denies the comment about the underbanking. Ms Brown claimed that Mr Slym had been extremely rude and unpleasant.

106 On 2 December Mr Slym called in the Club’s auditors to investigate Ms Brown’s claims of regular cash discrepancies. In a letter to the auditors, he wrote that he was in dispute with Ms Brown and that she had complained that her integrity had been bought into question. He went on to voice concerns about the book-keeping procedures employed at the Club but was optimistic that the ‘[l]ost money would materialise…because past experience in this club tells me that with the passage of time the money is likely to reappear!’

107 On 10 December 2003 Ms Brown went on stress leave and has not returned to the Club.

Findings and Conclusions

108 Three key issues fall to be determined. First, whether Ms Brown was as she alleged, demoted, isolated within the Club, and subjected to unwarranted criticism. Second, if so, whether such conduct constitutes a detriment. Third, whether her complaint to Mr McKinlay or later complaint to the Union, had ‘a real causative effect’ in the sense that ‘but for’ those complaints any or all of the treatment complained of would not have occurred.

109 Isolation and Segregation. While we accept the Club’s submission that there is no evidence of Mr Slym acting in concert with Mr McKinlay or other members of the Board to systematically ignore or segregate Ms Brown, we find that throughout the second half of 2003 Mr Slym had become increasingly rude and offhand in his treatment of Ms Brown. While it may never have been his practice to ‘shoot the breeze’ with Ms Brown, nevertheless it is apparent that throughout this period he distanced himself from her and did not inform her about matters relevant to her work. The circumstances surrounding the appointment of Mr Goldfinch bears this out. Ms Brown was not advised until about six weeks after his appointment that Mr Goldfinch had been appointed as the 2-I-C and that she would be answerable to him in respect of one of her core duties.

110 Mr Slym’s rude and offhand treatment of Ms Brown together with his failure to inform her about matters relevant to her work in our view constitute a detriment for the purpose of s 50.

111 Demotion. It is not determinative that there is no documentation to support Ms Brown’s claim that she had occupied the position of 2-I-C. The real issue is whether, as she alleges, she in fact performed that role.

112 Before Mr Goldfinch’s appointment, Ms Brown had been the second-most senior member of staff working in the Clubhouse (as opposed to the grounds staff). To put this in context, it is to be remembered that she was the only fulltime member of staff who worked in the Club House apart the General Manager. There is no evidence that she was responsible for overseeing or managing staff.

113 While Ms Brown took on additional and more senior responsibilities in the period immediately before Mr Slym’s appointment in the absence of any supporting evidence, we are not persuaded that she was the actual or de facto 2-I-C to the GM.

114 Unwarranted performance criticism. We understand this to relate to alleged criticisms by Mr Slym directed at Ms Brown made on or about 10 July, 24 September and 27 November 2003.

115 The first of these incidents occurred before any allegation of sexual harassment was made by Ms Brown and therefore cannot constitute a claim of victimisation.

116 The second incident is alleged to have occurred on 24 September, when, according to Ms Brown, she was rebuked by Mr Slym for failing to put up a notice informing members about a Club event. It seems to us that this conduct could more properly be categorised as offhand and dismissive treatment and is caught by our findings set out above.

117 In relation to the final incident (27 November 2003) we are comfortably satisfied that Mr Slym did say words to the effect ‘the under banking is all your fault’. That comment is consistent with Mr Slym’s poor view of the daily accounting procedures employed by Ms Brown. This conduct, in our view, is capable of constituting a detriment for the purpose of s 50.

118 ‘On the grounds of’. The final issue to be determined is what’ if any’ is the link between Ms Brown’s complaint of harassment and the detriment she suffered.

119 The Club submits that it is not clear that the Union’s letter, dated 3 November 2003, amounted to an allegation that Mr Slym had committed an act which would amount to a contravention of the Act (s 50(1)(c)). Mr McKinlay’s reply, in our view, suggests otherwise ‘[y]ou indicate that Ms Brown alleges that the [Club] has discriminated against her in the area of employment’.

120 Mr Slym, by his own admission, conceded that in the later part of 2003 he was not getting on with Ms Brown and was ‘starting to treat her with a great deal of caution’. He concedes that after she had complained to Mr McKinlay, he considered her to be ‘no friend’.

121 It is implausible that Ms Brown’s complaint did not contribute in some way to the poisoning of her relationship with Mr Slym in the later half of July 2003. The more difficult issue is the extent to which it contributed to Mr Slym’s mistreatment of her.

122 In analysing human behaviour, it is not always possible to determine with any degree of reliability what caused an individual to act in a particular way. The application of s 50 presents considerable difficulty when, as in this case, more than one factor could account for the offending conduct necessitating an evaluation of the weight to be given to each. Here it seems that Mr Slym acted as he did for a number of reasons. One was undoubtedly his ill-feelings towards Ms Brown because she had made a serious complaint about him to his boss, within a month of commencing in a new job and a few months later to the Union. However before he became aware that Ms Brown had raised the sexual harassment allegation, they had a fiery exchange over her hours of work. That this incident played some role in Mr Slym’s subsequent conduct is consistent with Ms Brown’s comment during the round table meeting convened by Mr McKinlay that she was being targeted because she had the tenacity to stand up for herself.

123 It is also apparent that in the second half of 2003 other issues had become the source of tension between the parties. Ms Brown acknowledged in these proceedings that Mr Slym ‘bought up constantly’ the need to address what he saw as the lack of proper financial procedures at the Club and that this was a source of frustration. Her argument that additional resources be devoted to this task went unheeded. The inescapable conclusion is that this, together with the regular financial discrepancies identified by Ms Brown in the later part of 2003, harmed the relationship between Ms Brown and Mr Slym.

124 It is difficult to apportion the extent to which Ms Brown’s complaint of sex harassment contributed to the deterioration of her working relationship with Mr Slym and his subsequent mistreatment of her. We have no doubt that it played some role. However, signs of fracture were evident before the allegation and it is apparent that were a number of other issues causing tension between the two. While it is possible that the allegation had a ‘real causative effect’ or that the relationship with Mr Slym would not have deteriorated to the extent it did but for the allegation of sexual harassment, we are not comfortably satisfied that this was the case.

125 For these reasons the complaint of victimisation is dismissed.

Relief

126 Ms Brown advised the Tribunal that she was not seeking any remedy or compensation from Mr Brown. Accordingly we make the following orders:

1. The complaints of victimisation and sex discrimination made against the First Respondent are dismissed.

2. That part of the complaint of sexual harassment that relates to the use of inappropriate language by the Second Respondent is substantiated.

3. The balance of the complaints made against the Second Respondent are dismissed.