Carroll v Zielke - [2001] NSWADT 146

No judgment structure available for this case.

CITATION: Carroll -v- Zielke & ors [2001] NSWADT 146

DIVISION: Equal Opportunity Division

PARTIES: APPLICANT
Gemma Carroll
RESPONDENTS
Wayne Zielke
Nicholas Favell
W & S Zielke Investments Pty Limited t/a Port Bakcafe

FILE NUMBER: 001022

HEARING DATES: 11/12/2000, 12/12/2000

SUBMISSIONS CLOSED: 12/19/2000

DATE OF DECISION:
09/12/2001

BEFORE: Rice S - Judicial Member; McDonald O - Member; Edwards K - Member

APPLICATION: Sexual Harassment - In workplace

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Anti-Discrimination Act 1977

CASES CITED: Aldridge v Booth (1988) 80 ALR 1
Hall and Ors v Sheiban (1988) 20 FCR 217
Hamilton v Whitehead (1988) 166 CLR 121
D v Berkeley Challenge Pty Ltd [2001] NSWADT 92
Johanson v Blackledge Meats [2001] FMC 6
O’Callaghan v Loder (No 1) (1984) EOC 92-022

REPRESENTATION: APPLICANT
In person
FIRST RESPONDENT
R Ranken, solicitor
SECOND RESPONDENT
No Appearance
THIRD RESPONDENT
R Ranken, solicitor

ORDERS: 1. The respondents Nicholas Favell and Zielke Investments are ordered jointly and severally to pay the applicant Gemma Carroll the sum of $2934 by way of compensation for loss and damages; 2. The respondents Wayne Zielke and Zielke Investments are ordered jointly and severally to pay the applicant Gemma Carroll the sum of $11735 by way of compensation for loss and damages; 3. No order as to costs.

Decision

1 For the reasons we give below, the complaint is substantiated. That means that Ms Carroll is successful in her complaint of sexual harassment.

Complaint and parties

3 The President of the Board was unsuccessful in attempting to resolve the complaint by conciliation, and referred it to this Tribunal for inquiry.

4 Sexual harassment is defined in s22A of the Anti-Discrimination Act (AD Act):
. . . a person sexually harasses another person if:

(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.

AD Act

6 In her letter Ms Carroll complained that she had been “harassed by Wayne Zielke”, and she gave details of specific incidents involving, she alleged, “both Wayne Zielke and Nick Favell”.

7 In s100 of the AD Act parties to an inquiry “shall be the complainant, the respondent, any person joined by the Tribunal as a party to the inquiry and any person to whom the Tribunal grants leave to appear as a party to the inquiry”.

8 In s87 a “‘respondent’, in relation to a complaint, means “the person or each of the persons against whom that complaint is lodged”.

9 It is clear from her letter that Ms Carroll lodged her complaint against both Wayne Zielke and Nick Favell. It follows from the combined effect of s100 and s87 of the AD Act that each of Mr Zielke and Mr Favell is a respondent to the complaint and a party to the Tribunal’s inquiry.

10 Ms Carroll, Mr Zielke and Mr Favell were at the relevant times employees of W & S Zielke Investments Pty Ltd (‘Zielke Investments’). Ms Carroll’s complaint is as an employee, against Mr Zielke and Mr Favell as employees, under s22B(2).

11 An employer may be affected by proceedings through the operation of s53 of the AD Act which relates to liability of principals and employers.

12 The statements filed with the Tribunal and the material in the President’s report to the Tribunal indicated the possibility of s53 being relevant in these proceedings. Consequently the Tribunal joined the employer Zielke Investments as a respondent to the inquiry, under s98 of the AD Act:
(1) Where, before the holding of an inquiry, or at any stage during the holding of an inquiry, the Tribunal is of the opinion that a person ought to be joined as a party to the inquiry, it may, by notice in writing given to that person, join that person as a party to the inquiry.

(2) If a person is joined as a party to the inquiry as a complainant or respondent, the person is for the purposes of this Part taken to be a complainant or respondent (as appropriate) in relation to the complaint concerned.

Inquiry

14 The Tribunal heard evidence for two days in Port Macquarie. Ms Carroll relied on her own evidence, evidence of Ms Jennifer Fuller and her father Anthony Carroll, and on documents. Mr Favell gave evidence for himself. Mr Zielke relied on his own evidence, and on a statement by Mr David King.

15 Mr Favell attended the inquiry for only the first day of hearing. He chose to leave at the end of the first day, and was absent for some part of the evidence of Ms Fuller, for the evidence of Mr Carroll and Mr Zielke, and for submissions.

Ms Carroll’s evidence

17 As part of the requirements of the apprenticeship Ms Carroll also attended Newcastle TAFE College. During the 11 weeks to 23 April that she worked at the Port Bakcafe as an apprentice, Ms Carroll attended TAFE on 3 occasions, each of 3 days’ duration. Each 3 day block was from Monday morning until Wednesday night, and the time spent at the TAFE was in lieu of shifts at the Port Bakcafe.

18 The three occasions at TAFE were 5-7 April, 12-14 April, and 19-21 April. This would have required Ms Carroll, on each Wednesday night after finishing TAFE at 9pm, to drive from Newcastle back to the Port Bakcafe at Port Macquarie to start the 2am shift on Thursday morning. Whether and when she did so is a matter of evidence discussed below.

19 In her evidence, including her written statements, Ms Carroll describes the relevant conduct of Mr Favell and Mr Zielke in the workplace.

20 Ms Carroll says Mr Zielke, more than once,
(i) asked her to wear shorter, tighter shorts, saying her “legs look so tall sexy and good”
(ii) asked her about her boyfriends
(iii) asked “how many roots [have you] had?”
(iv) asked her if she had body piercing
(v) asked her to join him swimming naked
(vi) asked her to go out with him
(vii) asked her to go back to his house
(viii) having left newspaper clippings of advertisements for escort agencies and brothels on her workbench, invited her to call them
(ix) changed cakes and pastries into shapes of sexual organs.

21 Ms Carroll says that
(i) on one occasion Mr Zielke drew breasts with a spray gun on a cake Ms Carroll was decorating, and
(ii) on another occasion placed a tampon on a cake Ms Carroll was decorating.

22 Ms Carroll says Mr Favell, more than once
(i) said to her that she would be” a good root”, and “a good one to fuck”
(ii) changed sex-related song lyrics while singing along to the radio, replacing names in the songs with Ms Carroll’s.

23 Ms Carroll says that on one occasion Mr Favell said to her “I’d love to fuck you and fuck you hard”.

24 Ms Carroll says that both Mr Zielke and Mr Favell
(i) swore constantly in their instructions to her, Mr Zielke for example saying” scrub the fucking floor” and not to leave “until the fucking floor is fucking clean”
(ii) frequently made remarks in her hearing about young women who came into the shop as customers, saying “they’d be a good root” and similar comments
(iii) frequently asked her to the pub to “get pissed and stoned” and “to get it on”, which she understood meant “to have sex”
(iv) called her a “Jesus freak” when she declined invitations to the pub.

25 Ms Carroll says that her response on each occasion of the conduct described in paragraphs 20-24 above was either to ignore it, or to say something such as “I’m not interested”.

26 Ms Carroll says that she told a Mr Wolfe and a Mr Tidy, teachers at her TAFE, about this conduct. Mr Tidy was not called to give evidence as he has since left the TAFE and Ms Carroll says she is unable to locate him.

27 Ms Carroll did obtain a letter from Mr Wolfe and concedes that he makes no reference in that letter to her having complained of sexual harassment or other relevant behaviour; he confirms only that in the TAFE course there is reference to relevant anti-discrimination laws and to the requirements for apprenticeship training.

28 Ms Carroll says that on Friday 23 April 1999 she had had a long day, working from 2am until about 10.30 or 11am. At the end of her shift she asked Mr Zielke about pay loading, as she believed from what she had studied at TAFE that she had a pay entitlement she had not received. She says that Mr Zielke became abusive, calling her “Miss Bossy Boots” and saying the TAFE was brainwashing her. They argued, and she left the premises.

29 Mr Zielke then called Ms Carroll on her mobile telephone and she answered on her way home. She says Mr Zielke told her that he had looked into the pay issue and that there was no loading entitlement. She says that he abused her about the quality of her work and told her not to return to work. She says the conversation continued while she arrived home and was met by her mother, and while she and her mother together drove to her father’s place of work.

30 Ms Carroll says that she then arranged an appointment with her apprentice adviser, David King, “to determine why . . . Wayne Zielke had phoned me at the end of my shift and proceeded to abuse, insult and generally harass me; also terminating my employment”.

31 She says agrees that she did not arrange the meeting explicitly to discuss allegations of sexual harassment, just regarding pay and “other matters”.

32 She says that when she had the meeting with Mr King she had already decided to go to the Anti-Discrimination Board, and that when the issue was raised with him he said to go ahead with that course of action.

33 Ms Carroll says that she told her parents of the conduct at the time it was taking place, but did not complain to her fellow employees.

Ms Fuller’s evidence

35 Ms Fuller worked at the counter, and Mr Favell worked about three or four metres away, in the bread making area. Ms Carroll worked initially at the counter and then “out the back”, past where Mr Favell worked, about ten metres away from Ms Fuller. Mr Zielke worked “anywhere, out the back, in the pie area, out the front”.

36 Ms Fuller enjoyed a friendly relationship with Ms Carroll when they worked together at the shop counter for a number of weeks. When Ms Carroll took up the apprenticeship and worked out the back, Ms Fuller noticed a steady decline in her relationship with Ms Carroll. Ms Carroll became less communicative, and they didn’t get along as well.

37 Ms Fuller did not hear any of the remarks alleged by Ms Carroll to have been made by Mr Zielke and Mr Favell. She heard Mr Zielke and Mr Favell swearing, using “four letter words”, in Ms Carroll’s presence, although not directed particularly at Ms Carroll. Such language was, she says, common in the workplace: both men spoke that way, “more so Nick”.

38 Ms Fuller says that both Mr Zielke and Mr Favell would make comments about pastries looking like breasts or penises: “They would say it to each other loud enough and laugh, so that . . . what was said would include people that were in the hearing vicinity”, including herself and Ms Carroll.

39 Ms Fuller says that she had told Ms Carroll on her arrival to beware of Mr Zielke saying things with sexual connotations, as she had seen his behaviour with other junior staff and with women customers. She recalls Mr Zielke saying to her “the only fat on you is when Tony [her partner] jumps on”.

40 On one occasion she told Mr Zielke and Mr Favell of an article in the paper about sexual harassment, and she reminded Ms Carroll that she didn’t have to put up with anything. She did this because she knew Ms Carroll “listened to these two-toned comments all the time”.

41 She says that there was a difference in the work environment when Mr Zielke and Mr Favell left each morning. She “relaxed a bit”. By way of contrast, when the men were there there was “difference of opinion, difference of personalities, you would ask why [orders] weren’t done, you would yourself be berated for . . . inquiring”.

42 Ms Fuller says that Ms Carroll did not complain to her about the conditions of her, Ms Carroll’s, employment.

Mr Carroll’s evidence

44 He says Ms Carroll asked him for counsel as to her mode of dress because of comments Mr Zielke had made about her wearing shorts. He says Ms Carroll told him of being quizzed about her sexual activities, and about whom she had slept with.

45 Mr Carroll says that Ms Carroll complained to him of the directives at work being “laced with expletives”. At the same time he says that he’s “not suggesting for one moment that Gemma is a little angel”. He concedes she may have used such language herself: “it’s not that Gemma has never been exposed to street language”.

46 He says that Ms Carroll raised these matters with him only towards the end of her employment, and further after she ceased work. He agrees that he approached no-one about her complaints. He agrees he didn’t raise them until the meeting with the TAFE supervisor in the week after Ms Carroll finished work at the Port Bakcafe.

47 He says his response to his daughter’s account of what was happening to her at work was to support her in dealing with it herself.

48 Friday 23 April was the day that Ms Carroll left the Port Bakcafe and received a call on her mobile phone from Mr Zielke. Ms Carroll arrived at her father’s workplace still speaking to Mr Zielke on the mobile phone. Mr Carroll says that Ms Carroll held the phone out for him to hear, and he heard
a barrage of abuse which was combined with absolutely filthy language . . . He was screaming abuse at her . . . that she just finished a shift as a good for nothing, that she’d produced nothing. . . . He was telling her that he wanted her nowhere near the joint. . . . He proceeded to tell her over and over that she’d been brainwashed since she’d come back from Hamilton TAFE . . . that she had come back with . . . an attitude problem”.

49 Mr Carroll took the phone from Ms Carroll and said “Hello Wayne”. Mr Zielke replied “Who the hell is this?”. Mr Carroll says that after he identified himself the tone of the conversation changed. Mr Zielke, he says, denied to him that he had concerns about Ms Carroll’s performance, and said that she should attend for her next shift.

50 Mr Carroll says that he then handed the phone back to Ms Carroll and heard the conversation resume. He heard Mr Zielke again being abusive to Ms Carroll, and heard Mr Zielke tell her that she had been sacked.

51 It was after this phone conversation, says Mr Carroll, that Ms Carroll and her mother together told him of Mr Favell having previously said to her “I want to fuck you hard”.

52 Mr Carroll says that he understood that the meeting with Mr King on 29 April was arranged for the primary purpose of getting an explanation for both the tone of the phone call from Mr Zielke on 23 April, and Ms Carroll’s being sacked. It was arranged for the secondary purpose, he says, of pay issues.

53 Mr Carroll says that Mr King took a call from Mr Zielke in Mr and Ms Carroll’s presence, and then told them that Mr Zielke would not be attending. He said “Wayne is effectively pulling the plug on your apprenticeship”.

54 Mr King told them in the meeting that he had also had a call to his answering machine at 2.20 am that morning from Mr Zielke to complain that Gemma wasn’t at work.

55 Mr Carroll says that Mr King had said to Ms Carroll that her indenture hadn’t been registered so it couldn’t be cancelled – she was in a limbo. He says that Ms Carroll made clear to Mr King that she didn’t wish to return to work in the Port Bakcafe.

56 Mr Carroll says that in the meeting Ms Carroll advised Mr King that she intended making a formal complaint about Mr Zielke’s sexual harassment. He says that Mr King offered to raise those allegations with Mr Zielke in a meeting he had scheduled to have with Mr Zielke on the next day, 30 April.

Mr Favell’s evidence

58 Mr Favell says that he’s known Mr Zielke for 12 years, having worked with him previously at a bakery in Narooma. In that time he has not known Mr Zielke to have a written sexual harassment policy. He says there has always been a “verbal policy” which he described in this way:
Zielke he’s always said to me “watch the girls”, always, all my life, since I was fourteen years old he said “Don’t whistle” I mean, “Don’t dare pinch them on the arse, nothing like that” [ . . . ] “Nich as (sic) you’re going to be too busy to harass these young girls”. I said “I don’t harass young girls”, he said “Yes you do”. It was a joke between us
Then later on he said “Listen, that is a serious topic, you got to watch how you treat the girls, these days”
I’d say it wasn’t actually written up . . . there was not actually something written up ‘sexual work’ or ‘ethics’ or whatever but I was constantly reminded not to hassle girls”.

59 Mr Favell says he is shocked at Ms Carroll’s allegations. He says Ms Carroll worked well and had a good attitude; he says he thought that he and she were friends.

60 Mr Favell says that on one occasion Ms Carroll went to his flat to give him a massage, bringing a massage table, and that on another Ms Carroll and her sister went to his flat to treat his injured hand. In her evidence Ms Carroll agreed that she went to Mr Favell’s house to treat his hand with her sister, and says it was just being kind. She says she gave him a massage to get up the hours she needed for her course.

61 Mr Favell says he and Ms Carroll had arranged to go a Beastie Boys concert together, but the concert was cancelled. He says that Ms Carroll borrowed CDs from time, and would visit his flat briefly to collect and or leave CDs. He says that he and Ms Carroll saw each other at the beach from time to time, and chatted. It was in that context he said to her “nice tan, have you been at the beach?”

62 Ms Carroll would, says Mr Favell, swear at work, and was one of the most foul mouthed girls he’s ever met. He says she would use the word ‘cunt’. He says learnt language from her, such as the term ‘stringer slut’. Mr Favell says Ms Carroll swore in reference to Jenny Fuller, and called Mr Zielke fat, lazy and stupid.

63 In her evidence Ms Carroll denies using explicit language. As to explicit language written in her diary, she said initially that girlfriends write in her diary, but then agreed that she wrote ‘cunt’ and ‘fucking shit’ in reference to Mr Zielke. She says that she did so was because she was so angry with him.

64 As to his own conduct, Mr Favell strongly denies that he made any sexual references at all to female customers in the store. He denies ever saying “scrub the fucking floor” or similar comments; he says that Ms Carroll was a friend and he never speaks to friends like that.

65 He denies ever saying “I’d like to fuck you and fuck you hard” and says he would never speak to a woman like that, even jokingly. He says that it’s not his style of dealing with women, and illustrates the point by saying
If I wanted to have sex with Gemma I would have tried to get her drunk, not just come and tell her, I would have taken her out and tried to get her drunk and seduce her.

66 Asked if he ever said to Ms Carroll “Let’s get it on” Mr Favell says that although he has said that to people in Port Macquarie, he has ”probably” not said it to Ms Carroll; he ‘couldn’t see himself saying it’.

67 Mr Favell recalls being told by Mr Zielke, after Ms Carroll had left work at the Port Bakcafe, that Ms Carroll was alleging he had said “I want to fuck you hard”. He says that his response at the time was to ask why he was involved, and that he didn’t give it another thought. He says he wasn’t surprised at the allegation because he could understand Ms Carroll wanting to get back at Mr Zielke for ending her apprenticeship.

68 Mr Favell was asked whether he had seen any of the conduct Ms Carroll alleges against Mr Zielke. He said he did not hear or see any of the things alleged. He said that Mr Zielke told him many jokes with frequent use of the word ‘fuck’, but that he, Mr Favell, did not see or hear them being told to Ms Carroll.

69 He didn’t hear Mr Zielke making comments about Ms Carroll’s legs; he didn’t see pastry in obscene shapes; he didn’t see the spray gun used and says that it was new and was not used while Ms Carroll was there; he didn’t hear Mr Zielke make any reference to under age girls. He didn’t hear Mr Zielke ask Ms Carroll about wearing a bikini. He did hear Mr Zielke say to both him and Ms Carroll that he was going to the beach, and ask whether they were going as well.

70 Mr Favell did see a tampon at the Port Bakcafe: he says it was in the First Aid Kit. He says there was a First Aid kit as he put it there and used it, and that there were tampons in it. He says that on one occasion Mr Zielke saw a tampon on the bench and told Mr Favell to move it. He did not see any incident involving a tampon and a cake.

71 He said that Ms Carroll wore the same shorts all the time, above the knee, and he is unaware of her being asked to wear anything different.

72 Mr Favell didn’t see ads for escorts on Ms Carroll’s work bench. He says he did hear Mr Zielke ask Ms Carroll if she did a good massage. He says that he, Mr Favell, had said to Mr Zielke how good she was at massage after he had received one from her. He did not hear Mr Zielke ask Ms Carroll for a massage but believes from Mr Zielke’s situation – a bad back and unhappy with his masseur – that he probably did ask her for one.

73 He says that he did have a conversation with Mr Zielke about there being a brothel opened in Ms Carroll’s street, but that the conversation did not happen in her presence.

74 He didn’t hear Mr Zielke ask Ms Carroll about going to Miner’s Beach. He says in his evidence:
Well, you’ve got to imagine that there’s a storeroom in between the two sections, I’m out the front, she’s out the back. When Wayne comes to and from he doesn’t take each one with him, so in front of me he never . . . Never heard it in front of me. But I can’t say I heard every word that was ever said in Port Bakcafe.

75 He says he didn’t ever work side by side with Ms Carroll.

76 He says he is unaware of Ms Carroll making any complaint during her employment about the conditions of her employment.

77 He says that within a week after Ms Carroll stopped working at the Port Bakcafe on 23 April, he saw her again at Flynn’s Beach. He says Ms Carroll asked him to ‘back her up’ in a complaint about Mr Zielke, but he declined, saying she had been treated well and had a foul mouth herself. He says she said “well fuck you” and walked away. Ms Carroll denies that this event and this conversation took place.
78 Mr Favell submits that Ms Carroll is lying in her complaint in order to get back at Mr Zielke for sacking her, and has implicated him, Mr Favell, because he refused to say he’d help her.

Mr Zielke’s evidence

80 However in his evidence Mr Zielke also says that he had suggested to Ms Carroll, on the first Thursday after she returned from TAFE, 8 April, that in future she take the Thursday after TAFE as a sick day because she got back so late. He says that the award structure for apprentices is such that Ms Carroll would have received the same weekly pay and would not have been disadvantaged by this arrangement.

81 Mr Zielke says Ms Carroll wasn’t at work on either of the following Thursday after TAFE – 15 and 22 April. He says that as she gave him no notice of not turning up on 15 April, and he asked her on 16 April to do so in the future. The following week Ms Carroll’s mother called Mr Zielke at home at 9pm on the Wednesday night to advise that Ms Carroll would not be in on the Thursday, 22 April. On each of the relevant Fridays, 16 and 23 April, Ms Carroll attended for work.

82 The wages book was maintained by Mr Zielke’s wife. He identified her handwriting as recording Ms Carroll “didn’t show up” on Thursday 8, 15, 22, and 29 April, although the entry for 8 April has been deleted.

83 Mr Zielke says that Ms Carroll did not show up to work on Thursday 15 April after being at TAFE, nor again on Thursday 22 April. There is no doubt that Ms Carroll was there on 29 April, as that was her last day at work.

84 An issue arose on this point concerning the accuracy of Ms Carroll’s diary as a record of events having occurred. Ms Carroll agrees that there was one, but says that there was only one, Thursday when she did not attend work, her mother having called Mr Zielke to give notice to that effect. Her recollection is that it was the first of the Thursdays when she was returning from Newcastle, 8 April. Her own diary however shows she worked that day, and the employer’s records show that the entry “didn’t show up” has been deleted and she was paid for the hours worked.

85 Ms Carroll agrees that it must have been 22 April she didn’t come in: this is consistent with both her own diary and the employer’s records.

86 An unresolved question from this analysis is whether Ms Carroll was at work on 15 April. While an entry in her own diary implies, without stating so, that she went to work, the employer’s records say “didn’t show up” and show that she was paid only the same amount as for the following week, when she was absent on the Thursday. We are satisfied that the evidence shows Ms Carroll was absent on both 15 and 22 April. In our view there is no question of any witness’s credibility turning on this issue – it is simply a matter of differing recollection.

87 As to relations between Ms Carroll and Mr Favell, Mr Zielke says he observed them to be warm and friendly. He says Mr Favell nurtured Gemma like a big brother. He “certainly” did not hear any comment from Mr Favell to Ms Carroll of a sexual nature. He says that Mr Favell said only positive things about Ms Carroll’s ability and attitude to work.

88 He says Mr Favell and Ms Carroll often worked in the same area.

89 He says “of course” he used to talk to Ms Carroll about what she did out of work, as would “any boss or staff”, such as “how was your weekend”, “what did you do on the weekend”, “how’s the beach yesterday”, and so on.

90 He agrees he did ask Ms Carroll “more personal questions about boyfriends and the like . . . in that vein”, such as “is she going out”, “what’s she doing Saturday night” “is she going out with her boyfriend”. He says he didn’t know whether Ms Carroll had a boyfriend, and “was asking her has she got a boyfriend”. He also asked her “does she go out with blokes on her night off or does she sit home and read pastry magazines . . . is she enjoying herself on her night off is what I meant”. He describes this as “no big deal asking her about her boyfriends, it’s just something you ask and wouldn’t give it another thought after that”.

91 He says as well as inquiring after her enjoyment he was trying to find out “if she was hanging around with druggies or drop-kicks”, as she had been entrusted with a key to the store.

92 Mr Zielke says that Ms Carroll’s answers were “just normal answers that a girl would give a boss or an employee. Just ‘yeah’, ‘no’, ‘no I’m not going out tonight, no’”. He doesn’t recall her objecting to the questions.

93 He agrees he did ask Ms Carroll to the pub for a drink after work at, he says, his wife’s suggestion. Ms Carroll declined but said “next time for sure”.

94 Mr Zielke says that he noticed Ms Carroll’s attitude decline after she started to attend TAFE. She said to him that there were things she didn’t have to do, and he thought that she was “wising up” and it started to “niggle” him a bit. He clarified this by saying that he was frustrated to see the TAFE education have the same effect on Ms Carroll as it had had on his previous apprentices: they were learning something different from what they were experiencing in his workplace, and they were saying so.

95 On 23 April Ms Carroll challenged him about her pay and penalty rates, saying she was being “ripped off”. He suggested that he get the TAFE at Lismore to call her with advice and, to that end he says, Ms Carroll gave him her mobile telephone number.

96 The telephone call he made to Ms Carroll on her way home that day was to check and see if the Lismore people had called her. He says Ms Carroll was abusive to him, saying she had been ripped off and that she would make him pay.

97 He agrees that the conversation went for close to 20 minutes. He says Ms Carroll said she would put her father onto the phone. She was crying. He knew that Ms Carroll’s father was there as Ms Carroll had been speaking not only to Mr Zielke on the phone but to her father and mother at the same time. He describes an amicable conversation with Mr Carroll in which he said there was a pay problem which could be sorted out and he looked forward to Gemma being back at work. He says Mr Carroll said he was sure Ms Carroll would be happy to come back, but that when the phone was returned to her she was still angry, saying she wasn’t coming back, and that he was “gutless” for not meeting her face to face.

98 Mr Zielke denies that he terminated Ms Carroll’s employment, and says that he has known for a long time that an apprentice can’t be sacked. He says that he twice called Ms Carroll to ask her back to work. The first time was “a month or two” after 23 April when he called to see how she was and to suggest she resume her apprenticeship; on that occasion he spoke to Ms Carroll’s sister. “Later on” he called again because he had received a letter which indicated that Ms Carroll’s indenture was still current. He spoke to Ms Carroll’s mother.

99 As to the meeting with Mr King on 29 April, Mr Zielke says that shortly after 23 April Mr King called and said to him that Ms Carroll would be back at work on the morning of Thursday 29 April, and would he attend a meeting on the afternoon of 29 April? Mr Zielke says he agreed to attend the meeting “if Gemma attends work on Thursday”.

100 When Ms Carroll had not arrived at work by 2.20am on Thursday 29 April Mr Zielke called Mr King to complain of her non-attendance. He called again to say he wouldn’t attend the meeting. In a further call to Mr King, presumably the one Mr King took in the presence of Mr and Ms Carroll, Mr Zielke was told by Mr King that Ms Carroll would not be returning to work at the Port Bakcafe.

101 Mr Zielke says that at the meeting he had on 30 April with Mr King he was told that Ms Carroll had complained of “sexual harassment”, but that the only allegation conveyed to him was that Mr Favell had sworn in front of Ms Carroll. He says he subsequently approached Mr Favell and put the allegation to him, and that Mr Favell replied by saying “Well she swears all the time so, you know, what’s the big deal?”.

102 He says that Ms Carroll swore regularly in conversation with Mr Favell, “putting the F word in” and “using the other one that starts with the big C”. He says he didn’t ever use such language himself and is unaware whether Mr Favell, in giving instructions to Ms Carroll, said “fucking”.

103 He recalls both Ms Carroll and Mr Favell together asking him if they could have a weekend off to go to see the beastie Boys concert.

104 He says that the radio in the area where Ms Carroll worked was always tuned to 2-JJJ. He recalls both Ms Carroll and Mr Favell commonly singing along to songs and changing the lyrics.

105 He says he spoke to both Mr Favell and Ms Carroll about their dress, suggesting they wear shorter shorts for greater comfort in the heat. He denies he suggested this to Ms Carroll so as to see “more arse”, which is how in his evidence he characterised her allegation against him. He gave evidence that, in any event, Ms Carroll at work “would wear [her] board shorts halfway down [her] arse crack”, which embarrassed him.

106 Mr Zielke says Ms Carroll was not at work on 15 April but that an incident involving a tampon occurred on a day when she was there. There was in the evidence a dispute over the accuracy of a personal diary note kept by Ms Carroll which indicated that this incident took place on 15 April. In any event, Mr Zielke agrees there was an occasion involving a tampon and Ms Carroll. Although his version differs from Ms Carroll’s, nothing turns on the actual date the event occurred, nor on the accuracy of any record of the event.

107 Mr Zielke says that the Port Bakcafe had a first aid kit, and that Mr Favell had used it earlier on the relevant day. Later that day Mr Zielke was working with Ms Carroll and he opened a cupboard looking for a sausage roll cutter. A tampon fell out of the cupboard. He says that although he knew it was part of the first aid kit he said to Ms Carroll “Gem is that yours? He says he was “just making light of it”, and did so “to save any embarrassment for me and Gem”.

108 Mr Zielke says he did not ever hear anyone say anything to the effect that ‘Gemma would be a good root’. When asked by his solicitor whether he had ever said that, he replied “Well I don’t reckon she would be”. The Tribunal put the question to him again, and he then denied having said it.

109 Mr Zielke says he did not make any references to sexual acts with under age girls, and did not hear Mr Favell make such comments. He denies ever speaking to Ms Carroll about what she wore to the beach. He denies that he suggested surfing nude, and says that he would never consider taking his clothes off in front of a junior staff member. Mr Zielke says that he did ask Ms Carroll what beach she would be going to, but only to ensure that he would not go to the same beach as he thought it inappropriate for an employer and a young employee to see each other in swimwear.

110 Mr Zielke denies that he knew at the time of the existence of Miner’s Beach. He recalls asking Ms Carroll what beach she went to. When she told him, he said “that’s not the nudist beach is it?” and she said that it wasn’t.

111 He denies he asked her skinny dipping. He denies he asked her more than once “how was your weekend”. He denies repeated invitations to the pub, and says it was only once for her 18th birthday.

112 He denies placing pictures of escort agencies on Ms Carroll’s work bench, or asking her to phone such agencies for him. He agrees he spoke to her about massage therapists “lots of times”, because he was aware that Ms Carroll and her sister were involved in massage. Mr Zielke says he had a bad back, knew Ms Carroll and her sister were interested in massage, and was unhappy with his masseuse. He describes an occasion when he spoke to Ms Carroll about massage therapists:
I said “Gemma, those two girls that are in the . . . ” – I think they were in the personal section, that’s what threw me off – I said “are they for real massagers, or do you think there could be some shit?”.
She said “What’s their names and I’ll tell you” and I said “Do you think you’d know?” and she said “Yeah”. She said “If they’re proper massage people [ . . . ] I’d know they’re names for sure”, and I said “Geez I can’t think what they’re names are”.
There’s no way I could think what their names are and when the paper comes . . . I must have opened it up and said “Those girls there, have you heard, do you recognise those names, do you know who they are?” and she said “No I don’t know who they are” so I figured it wasn’t legitimate massage people you know, even though the had the letters after their name [ . . . ] something saying they’ve got a diploma in massaging:

113 He agrees that the pages he showed Ms Carroll were those with personal classified advertisements for escort agencies, and says “I certainly didn’t think it was something Gemma should take offence to”. He says that the same pages carried a range of other classified advertisements as well: legal notices, accommodation, for sale etc.

114 Mr Zielke says that one morning before Ms Carroll arrived at work Mr Favell told him there was a brothel in a particular street. Mr Zielke’s response was to suggest that Mr Favell ask Ms Carroll as she lived in the same street.

115 Mr Zielke does not recall ever referring to Ms Carroll as a ‘Jesus freak’, and says he did not hear Mr Favell do so.

116 He denies ever suggesting going to the pub to get “pissed and stoned” but says that Mr Favell would speak like that to him. He never heard it being said in Ms Carroll’s presence. He does not recall ever discussing body piercings although he concedes it may have happened.

117 Mr Zielke agrees that he spoke to Ms Carroll about wearing shorts, but says that he asked both Ms Carroll and Mr Favell to wear more appropriate shorts, and denies he ever asked Ms Carroll to wear tighter shorts.

118 Mr Zielke says Ms Carroll did not complain to him about his or Mr Favell’s conduct. He says he first knew of a complaint about his own conduct when, in a discussion with Ms Carroll on the Sunday after she left work (25 April), she said to him “What about the sexual harassment charge?”. The next time he was aware of it was when he received a letter from the Anti-Discrimination Board in about October.

119 Mr Zielke says that he first knew of a complaint about Mr Favell’s conduct when told by Mr King “in late April” 1999, presumably in the meeting on 30 April.

120 Mr Zielke says he did not ever have a formal sexual harassment policy in place: “it was always verbal, like Nic [Mr Favell] said [ . . . ] We’ve never had to worry about it. We’ve had sort of two or three hundred girls, the same age as Gemma working and never . . .(sic)”.

121 Mr Zielke was then asked “After these complaints were received did you put in a formal sexual harassment policy?” His evidence was “No, the only policy I put in was ‘That will be the last girl I’ll be hiring out the back’, just in case this ever happens again. So, strictly boys again”.

122 In cross-examination he answered an allegation that he had asked for the shop key back on the morning of Ms Carroll’s last day at work. He said that his wife had called Ms Carroll and asked “would Gemma kindly call in tomorrow, Saturday, and pick up her . . . we’ll have a cheque ready for her outstanding wages and would you mind bringing the key back”. He says Ms Carroll came in with her father on the Saturday morning.

123 In further evidence Mr Zielke said that he held Ms Carroll’s position open for her; he did not employ anyone to replace her, and he called to ask her to return. He said that despite reservations about Ms Carroll’s attitude to work he believed “time is a great healer” and that she would “calm down”.

124 It was put to Mr Zielke by Ms Carroll in cross-examination that while she was employed at the Port Bakcafe, “most people [she] had working out the back with [her] were desperate types”. Mr Zielke implicitly agreed, saying “I tend to give desperate types a job Gemma, that’s what Nick [Mr Favell] was doing working for me”.

125 Mr Zielke submits that Ms Carroll’s allegations to the Anti-Discrimination Board are false and that she made them because she was unable to resolve her pay dispute with him. Mr Zielke says that Ms Carroll included Mr Favell in the allegations after Mr Favell said he wouldn’t help her.

Findings

AD Act

127 The necessary elements are:

Aldridge v Booth

Hall and Ors v Sheiban

129 We are satisfied that Mr Zielke and Mr Favell each engaged in the unwelcome conduct in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that Ms Carroll would be offended, humiliated or intimidated.

130 We make findings on the specific allegations below. To explain the findings we have made we make the following general observations about the evidence we heard from the witnesses.

Witnesses

132 Ms Carroll’s motive for lying would only be an award of damages. Against this, Ms Carroll ceased employment as an apprentice after only a short period, during which time her work was highly regarded. She was undertaking a tertiary course which she enjoyed. Ms Carroll’s complaints have been consistent since she first expressed them to the Anti-Discrimination Board over 12 months before these proceedings commenced. We can see no material from which we could reasonably infer that that Ms Carroll has been motivated to lie in her evidence by any prospect she might have of obtaining favourable finding in these proceedings.

133 Both Mr Favell and Mr Zielke have suggested in their evidence that Ms Carroll has motives for lying. Mr Favell says that Ms Carroll has lied in her allegations against him because of his refusal to support her in her allegations against Mr Zielke. This turns on a conversation alleged by Mr Favell and denied by Ms Carroll. We are unable to determine whether that conversation took place. Even if it did, the evidence shows that Ms Carroll’s allegation against Mr Favell was conveyed to Mr Zielke by Mr King as early as 30 April. Further, Ms Carroll had complained to her parents at least as early as 23 April of Mr Favell’s conduct. We would be satisfied that Ms Carroll, even if the alleged conversation with Mr Favell took place, had already formed the intention to make a complaint concerning Mr Favell’s conduct.

134 Mr Zielke says that Ms Carroll has lied in her allegations against him because she was unable to resolve her pay dispute with him. In our view this is neither plausible, nor supported by the evidence. Mr Zielke’s own evidence about his conduct, and Ms Fuller’s evidence about conduct she observed, supports in our view the veracity of Ms Carroll’s claims. The issue of pay arose on the last day of work, and Ms Carroll has not since disputed that she was paid her entitlements on leaving.

135 We note that although Ms Carroll was uncertain in her recollection of some dates, she promptly conceded errors in dates when they were put to her.

136 In our view Ms Carroll did exaggerate her evidence in relation to her use of language. Somewhat defensively, and contrary to other reliable evidence, Ms Carroll maintained she did not use swear words or unsociable language. In our view this defensiveness is understandable in the circumstances, and does not raise for us concerns as to the truthful of the rest of her evidence.

137 Taking account of these considerations, and of those relating to Mr Zielke and Mr Favell we discuss below, when there is a conflict in the evidence of Ms Carroll on the one hand and either Mr Zielke or Mr Favell on the other, we have in almost all instances preferred Ms Carroll’s evidence. There are instances, described below, when the particular circumstances of the evidence are such that we have not had reason to doubt evidence from either Mr Zielke or Mr Favell even though it is at odds with the evidence of Ms Carroll.

138 Ms Fuller too was consistent and reliable in her evidence. She was clearly angry and upset at the recollection of her time working at the Port Bakcafe, but it was not suggested to her, nor did we see any indication in her manner or evidence, that she was vindictive, or unreliable in her evidence.

139 Mr Carroll was a consistent and reliable witness. He volunteered concessions concerning Ms Carroll’s use of language. It was not suggested to him that as the applicant’s father he was vindictive or biased in her evidence. We are of the view however that Mr Carroll exaggerated his evidence in relation to the meeting with Mr King on 29 April. We assume that Mr Carroll was anxious in giving his evidence to demonstrate that Ms Carroll had, at the earliest possible stage, formulated a complaint about sexual harassment and raised it in official channels. We are satisfied on the whole of the evidence that Ms Carroll had already formed the intention to complain of sexual harassment when she went to the meeting with Mr King on 29 April, and that that was remarked on at the meeting. This is not inconsistent with the meeting being called principally to discuss, as we are satisfied it was, Ms Carroll’s pay and entitlements and the future of her apprenticeship.

140 Mr Favell was an unusual witness in that he was angry about being a party in the proceedings and was aggressive at times in his manner and speech, while apologising for being so. He dealt with these proceedings in a direct, confrontational and perhaps reckless manner. He was unconcerned about most of the allegations against him, dismissing them as lies or distortions by Ms Carroll; he offered a plausible explanation for her having lied, although unsupported by any evidence other than his own account of a conversation, which was denied by Ms Carroll.

141 He was particularly concerned to address and deny one allegation in particular, and says that he travelled a long distance at short notice to attend the hearing for that purpose. He perceived an aspect of Ms Carroll’s complaint to amount to an allegation that he was, in his words, a paedophile.

142 Mr Favell volunteered evidence about his criminal history and his attitude towards women, by way of impressing us with his honesty. Mr Favell gave a great deal of evidence which in our view was against his interests, reflecting adversely for purposes of these proceedings on his character, his usual conduct in relation to women, his attitude to women in the workplace, and his motives for attending and giving evidence. This evidence, which is in essence evidence of character, has in our view significant probative value for purposes of these proceedings. It is evidence of a pattern of behaviour and an underlying attitude on Mr Favell’s part which is directly relevant to an assessment of the probability of the facts alleged against him by Ms Carroll.

143 We accept Mr Favell’s self-critical account of his general conduct. But in contrast to his acknowledging a wide range of conduct and issues, Mr Favell denies every allegation of unlawful conduct made against him. In light of the view we have formed as to his pattern of behaviour and underlying attitude, we do not accept these denials as truthful. In our view the conduct of which Ms Carroll complains, and which Mr Favell denies, is entirely consistent with Mr Favell’s character, habits and attitude towards women as he described them to us. His denials are inconsistent with the tenor of the remainder of his evidence.

144 Thus when there is a conflict in the evidence regarding Mr Favell’s engaging in sexual harassment, we have in most instances preferred Ms Carroll’s evidence to that of Mr Favell.

145 We have formed a similar view in relation to Mr Zielke’s evidence. As there is for Mr Favell, so for Mr Zielke there is evidence of a pattern of behaviour and an underlying attitude on his part which is directly relevant to an assessment of the probability of the facts alleged by Ms Carroll. Mr Favell gave evidence of a running joke, for some years, between him and Mr Zielke regarding their engaging in sexual harassment. Ms Fuller gave evidence of Mr Zielke saying things with sexual connotations to junior staff and women customers, and recalled him making a direct and unwelcome sexual reference to her.

146 In his evidence Mr Zielke answered a question as to whether he had ever said ‘Gemma would be a good root’ by saying he didn’t think she would be. The most favourable interpretation of this statement to the Tribunal is that he meant to imply a negative answer to the question. In our view this is indicative of a strikingly disrespectful view he has of, at least, Ms Carroll as a woman, if not of women generally. Mr Zielke’s subsequent denial of having expressed a similar sentiment at the workplace is disingenuous.

147 In our view Mr Zielke further demonstrated his attitude to women’s entitlement to equal status in the workplace when he described his attitude to having a sexual harassment policy at work: he would in future employ “strictly boys” to avoid problems such as sexual harassment complaints.

148 Mr Zielke’s evidence concerning the termination of Ms Carroll’s employment is improbable. On the one hand he says that he kept the position open for her, and on the other he describes the decline in her attitude at work, and his own consternation at her attitude based on her learning at the TAFE course. Most tellingly he gives evidence of a conversation he heard later on on Ms Carroll’s last day at work, in which his wife asked Ms Carroll to collect a cheque for her outstanding wages and to return the key. Mr Zielke’s determination to maintain that he was not at fault in Ms Carroll not returning to work gives us real reason to doubt his denial of other episodes that would reflect adversely on him.

149 Thus when there is a conflict in the evidence regarding Mr Zielke’s engaging in sexual harassment, we have usually preferred Ms Carroll’s evidence to that of Mr Favell.

150 There is conduct alleged by Ms Carroll the essence of which is effectively conceded by Mr Zielke. Mr Zielke has given evidence as to what he intended by that conduct, but his intentions are, as we discuss below, irrelevant to whether that conduct was sexual harassment as defined.

Specific allegations

152 Mr Favell denies the allegations. In relation to the first four allegations, and on the basis of our assessment of the evidence as described above, we prefer the evidence of Ms Carroll and are satisfied that Mr Favell did engage in the conduct alleged, even if with the intention at times of being playful or joking.

153 We accept (paragraph 136 above) that Ms Carroll used swear words to some degree at work. Such language seems to have been common in the workplace, and we are aware is not uncommon in many workplaces. Its use , however, does not in these circumstances, if indeed it could in any circumstances, indicate that conduct of a sexual nature directed to Ms Carroll was welcome.

154 Whatever Mr Favell’s intention, and despite Ms Carroll's language, the conduct in the first four allegations was unwelcome conduct of a sexual nature, in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that Ms Carroll would be offended, humiliated or intimidated. The conduct was unlawful, and Mr Favell is liable for it.

155 As to the fifth allegation, relating to song lyrics, we accept that Ms Carroll is likely, as alleged by Mr Favell, to have joined in the changing of lyrics generally, but not sex-related lyrics in connection with the use of her name. Her participation in the conduct generally however may have indicated to Mr Favell that his own conduct was not unwelcome. Consequently the conduct was not unlawful.

156 Ms Carroll says that Mr Zielke
(i) asked her to wear shorter, tighter shorts, saying her “legs look so tall sexy and good
(ii) asked her about her boyfriends
(iii) asked how many “roots” she had had?”
(iv) asked her if she had body piercing
(v) asked her to join him swimming naked
(vi) asked her to go out
(vii) asked her to go back to his house
(viii) having left newspaper clippings of advertisements for escort agencies and brothels on her workbench, invited her to call them
(ix) made and changed cakes and pastries into shapes of sexual organs
(x) placed a tampon on a cake Ms Carroll was decorating
(xi) invited her “to get it on”, which she understood meant “to have sex”
(xii) said in her hearing, referring to young women who came into the shop as customers, “they’d be a good root” and similar comments
(xiii) drew breasts with a spray gun on a cake Ms Carroll was decorating.

157 Mr Zielke denies the allegations. In relation to all but the last allegation, and on the basis of our assessment of the evidence as described above, we are satisfied that Mr Zielke did engage in the conduct alleged. It may be he intended at times to be playful, joking or convivial in relation to those conversations which Mr Zielke agrees took place but in different terms, although he volunteered that Ms Carroll replies were brief, sometimes monosyllabic.

158 Whatever Mr Zielke’s intention, the conduct in all but the last allegation was on each occasion unwelcome conduct of a sexual nature, in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that Ms Carroll would be offended, humiliated or intimidated. The conduct was unlawful, and Mr Zielke is liable for it.

159 As to the last allegation, relating to drawing breasts with a spray gun on a cake, Mr Favell’s evidence is that such a spray gun did exist but was not in use at the time. We place little weight on Mr Zielke’s denial of the incident, but on this point Mr Favell has in our view no reason not to give truthful evidence of his recollection. In light of conflicting credible evidence on this point, we are unable to be satisfied that this conduct took place as Ms Carroll alleges.

160 Ms Carroll says that both Mr Favell and Mr Zielke:
(i) regularly asked her to the pub to “get pissed and stoned”
(ii) referred her as a “Jesus freak”
(iii) gave her directions to “scrub the fucking floor” and not to leave “until the fucking floor is fucking clean”
(iv) discussed with her the presence of a brothel in the street where she lived.

161 The comment “Jesus freak”, the persistent invitations to the pub, and the expletive-laced directions, are not in the circumstances of this case within the definition of sexual harassment. Consequently none of that conduct was unlawful. While the persistent invitations to the pub, and the expletive-laced directions, could in another case constitute sex discrimination, in that a man would not have been treated in the same way in the same circumstances, we cannot be satisfied on the evidence that that was so in this case.

162 As to the discussion about the brothel, Mr Favell, Mr Zielke and Ms Carroll give different and inconsistent accounts of this conversation. We place little weight on Mr Zielke’s denial, but on this point, as above, Mr Favell has in our view no reason not to give truthful evidence of his recollection. In light of conflicting credible evidence on this point, we are unable to be satisfied that this conduct took place as Ms Carroll alleges.
163 It follows from the findings above that Mr Zielke and Mr Favell have each, to the extent described in the findings, engaged in sexual harassment as defined in s22A of the AD Act, and are liable for that unlawful conduct.

Liability of Mr Favell

AD Act

165 That unlawful conduct is, as Ms Carroll complained of, a contravention of the AD Act (s88 AD Act) and the Tribunal therefore finds Ms Carroll’s complaint against Mr Favell substantiated (s113(1)(a) AD Act).

Liability of Mr Zielke

167 That unlawful conduct is, as Ms Carroll complained of, a contravention of the AD Act (s88 AD Act) and the Tribunal therefore finds Ms Carroll’s complaint against Mr Zielke substantiated (s113(1)(a) AD Act).

Apportionment

168 Mr Favell and Mr Zielke share liability for the whole of the unlawful conduct. Each is liable for the particular conduct to the extent described above. Some conduct recurred, some happened once. Some conduct was explicitly offensive, some was innuendo. On an overall assessment of responsibility for the whole of the unlawful conduct to which Ms Carroll was subjected, we apportion liability 20% to Mr Favell and 80% to Mr Zielke.

Liability of the employer, Zielke Investments

AD Act

171 An employer cannot be liable under s53(1) if it can meet the test in s53(3). If it meets the test in subsection (3) then subsection (1) becomes irrelevant; if it fails subsection (3) then attention turns to the test in subsection (1).

172 Reference in s53(3) to the conduct being ‘prevented’ does not mean that the employer knew about something and tried to stop it. It means that an employer took all reasonable steps to create an awareness or ethos among employees, and relevant processes or systems, such that discriminatory conduct would not occur. It is a question of the reasonable steps an employer takes to ensure that employees do not engage in discriminatory conduct.

173 Mr Zielke was at the time one of two directors of Zielke Investments, the other being his wife. He held one of the two issued shares and was the secretary of the company. The company operated the business Port Bakcafe in which Mr Zielke worked on a fulltime basis, effectively as the owner/manager of the business. Mr Zielke’s wife kept the wage books and accounts for the business.

174 In this matter the steps that the company, as employer, took are the steps Mr Zielke took. Mr Zielke is effectively the company’s mind; what Mr Zielke does is what the company does. This is the second of four circumstances of a company’s liability for personal acts described by the Tribunal in M v R (1988) EOC ¶92-229 at p 77,173 (and see Hamilton v Whitehead (1988) 166 CLR 121 ) per Mason CJ and Wilson and Toohey JJ applying Tesco Supermarkets (1972) and H L Bolton (Engineering) (1957)).

175 This ‘organic theory’ of a company can render the company directly liable for the acts of a person whose “mind was the mind of the company” (Hamilton v Whitehead).

176 The evidence shows that Mr Zielke, the mind of the company, did nothing to prevent himself or Mr Favell from contravening the Act.

177 In the evidence there was passing reference to the existence of a policy: a policy is generally regarded as a being a necessary but not sufficient ‘reasonable step’ to take if the defence under s53 is to be established (see eg D v Berkeley Challenge Pty Ltd [2001] NSWADT 92 para 96; Johanson v Blackledge Meats [2001] FMC 6 at paras 103-105 ). The terms of such a policy would, at least, identify the type of conduct which would constitute sexual harassment, would prohibit it in the workplace, and would provide a process for employees to lodge and resolve grievances.

178 Mr Zielke says that the company had a ‘verbal policy’. Neither he nor Mr Favell, who also referred to a verbal policy, volunteered its terms. Mr Zielke said, referring to women working in the bakery, “We’ve never had to worry about it”.

179 We are satisfied that in this matter Zielke Investments had no sexual harassment policy in place. If the ‘verbal policy’ referred to in evidence constitutes a policy, it was grossly inadequate and did not amount to a ‘reasonable step’ having been taken.

180 A policy, if in existence, has to be applied. It should be supported with printed material, an orientation for new employees, a complaints process, and training. None of this was in place at Ms Carroll’s place of work. All this is within the reach of even the smallest business, and free advice and resources are available from employer bodies, trade unions and government agencies.

181 On the question of training, the Tribunal notes that Mr Zielke was not happy about Ms Carroll attending the TAFE and learning about employment conditions which were different from those in his workplace, and he made that displeasure clear to Ms Carroll.

182 Mr Zielke still did not, at the time of the hearing a year and a half after the complaint, have a written sexual harassment policy. The employer’s response to Ms Carroll’s complaint has been, says Mr Zielke, to resolve to no longer employ women – effectively, it would seem, to discriminate against them.

183 The test in s53(3) is not only that the steps which were taken were reasonable; it is that all reasonable steps which could have been taken were taken. In the Tribunal’s view there were no steps, let alone any that were reasonable, taken by Zielke Investments to prevent contraventions of the AD Act.

184 The employer in this matter does not meet the test in s53(3). That being the case, consideration of the employer’s liability reverts to s53(1), and to the question of the employer not authorising the conduct.

185 As to Mr Favell’s conduct, there is no evidence of any act by the company that could be characterised as either an express or an implicit indication that his conduct was not authorised. Mr Zielke’s own conduct gave no indication to Mr Favell that such conduct was unauthorised. To the contrary, Mr Zielke’s own conduct, as the senior worker, the owner of the company, and the ‘boss’, would in our view have given Mr Favell some encouragement.

186 As to Mr Zielke’s conduct, he was effectively the employer. Far from the company not authorising his conduct, the company must be seen to have authorised everything he did, or at least not to have ‘not authorised’ his actions.

187 It follows that the employer has not discharged the onus on it to avoid the effect of s53. The employer company Zielke Investments is deemed to be liable for the conduct of both Mr Favell and Mr Zielke.

Joint and several liability

189 The liability imposed on the employer by s53(2) is not vicarious. Rather, s53(2) both deems the employer to be liable and preserves the liability of the employee (O’Callaghan v Loder (No 1) (1984) EOC ¶92-022 at p 75,494; M v R (1988) EOC ¶92-229 at p 77,174).

190 Accordingly, Mr Favell and Zielke Investments are responsible jointly and severally for Mr Favell’s liability, and Mr Zielke and Zielke Investments are responsible jointly and severally for Mr Zielke’s liability.

Economic loss

192 Ms Carroll’s apprenticeship was cancelled because she ceased employment. She did finish the term at TAFE, and can resume the course if she finds another apprenticeship. Her opportunities for doing so are limited: she feels that she can’t take up an apprenticeship in Port Macquarie as all the bakers know each other. She agrees she could go outside Port Macquarie to seek work, but hasn’t done so.

193 Ms Carroll feels she can’t go back to a male working environment. She says “[I] just feel I can’t go back into work yet” . . . “especially the bakery environment”. What is preventing her, she says, is “what I’ve been through”. Having lost an apprenticeship, she says “my career’s just gone so downhill”.

194 Ms Carroll has done some casual work at functions so that, she says, she wouldn’t just be sitting around at home. She has done casual stock-taking twice. She has not sought Centrelink payments.

195 Ms Carroll is now qualified with a diploma in therapeutic massage. She would set up in private practice if she could afford the insurance.

196 She remains unemployed in a town with limited employment opportunities, although she now has other qualifications and abilities.

197 We take account of the difficulty a young woman has in finding an apprenticeship in a country town, and the obstacle this poses to Ms Carroll’s finding an alternative to her aborted apprenticeship at the Port Bakcafe. At the same time we take account of Ms Carroll’s subsequently obtained qualifications in therapeutic massage, her
obvious ability to find some casual employment, and the limited efforts she has made to obtain other employment.

198 Balancing these considerations we are of the view that an assessment of her financial loss resulting from the loss of her employment at the Port Bakcafe is fairly limited to the income she would have earned had she continued her apprenticeship at the Port Bakcafe until 30 June 2000.

199 The employer’s records show that Ms Carroll’s ordinary gross pay at the Port Bakcafe was $217.90 per week, in accordance with the relevant Award.

200 Ms Carroll’s tax return for the relevant financial year, 1998–1999, shows gross income of $4189, all of which was earned at the Port Bakcafe, until 30 April 1999. Her gross income, in accordance with the relevant Award, for the period 1 May to 30 June 1999 would have been 8.6 weeks at $217.90, which is $1874.

201 Ms Carroll’s tax return for the following financial year, 1999 – 2000 shows gross income of $7,343. Her gross income, had she remained in her apprenticeship, for that period would have been 52 weeks at $217.90, which is $14138. The difference between her actual and possible gross income for the period is $6795.

202 Ms Carroll’s total economic loss for the period 1 May 1999 to 30 June 2000 is therefore $8669.

General damages

204 The unlawful conduct to which Ms Carroll was subjected was, in the terms of s22A, occasions of unwelcome sexual advances and unwelcome conduct of a sexual nature. The conduct was verbal, and its sexual nature was at different times explicit and implicit. The conduct did not manifest in physical contact or exposure.

205 Ms Carroll said that at the time she was adversely affected by the conduct; it was “getting to her”. Ms Fuller reports a change in Ms Carroll’s demeanour, as does Mr Zielke.

206 Ms Carroll says she was distressed by the conduct: she got mood swings, “didn’t feel her normal self”, and “felt down and depressed”.

207 She has not received formal counselling and it is not clear that any treatment she now receives relates to continuing effects of the unlawful conduct. Her general medical practitioner, Dr Subbiah, diagnosed depression, but that was not until November 1999. She was prescribed Prozac for a short time, and as since taken naturopathic remedies. She sees a Chinese herbalist.

208 Weighing up these various considerations we are of the view that an amount of $6,000 is a fair assessment of general damages, in a jurisdiction in which the maximum award for the worst possible breach of the Anti-Discrimination Act remains limited to $40,000.

209 The total amount we find is due to Ms Carroll by way of compensation for loss and damages is $14,669. This is to be apportioned on a 20/80 basis between Mr Favell and Mr Zielke, with Zielke Investments being jointly and severally liable with Mr Favell and with Mr Zielke.

210 Accordingly we find the complaint substantiated and order as follows:

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Citations

Carroll v Zielke [2001] NSWADT 146

Most Recent Citation

Dee v Commissioner of Police and Anor [2003] NSWADT 217

Cases Citing This Decision

2

Murtagh v Taylor (EOD) [2005] NSWADTAP 18

Dee v Commissioner of Police and Anor [2003] NSWADT 217

Cases Cited

4

Statutory Material Cited

1

Hamilton v Whitehead [1988] HCA 65

D v Berkeley Challenge Pty Ltd [2001] NSWADT 92

CITATION:	Carroll -v- Zielke & ors [2001] NSWADT 146
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Gemma Carroll RESPONDENTS Wayne Zielke Nicholas Favell W & S Zielke Investments Pty Limited t/a Port Bakcafe
FILE NUMBER:	001022
HEARING DATES:	11/12/2000, 12/12/2000
SUBMISSIONS CLOSED:	12/19/2000
DATE OF DECISION:	09/12/2001
BEFORE:	Rice S - Judicial Member; McDonald O - Member; Edwards K - Member
APPLICATION:	Sexual Harassment - In workplace
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Anti-Discrimination Act 1977
CASES CITED:	Aldridge v Booth (1988) 80 ALR 1 Hall and Ors v Sheiban (1988) 20 FCR 217 Hamilton v Whitehead (1988) 166 CLR 121 D v Berkeley Challenge Pty Ltd [2001] NSWADT 92 Johanson v Blackledge Meats [2001] FMC 6 O’Callaghan v Loder (No 1) (1984) EOC 92-022
REPRESENTATION:	APPLICANT In person FIRST RESPONDENT R Ranken, solicitor SECOND RESPONDENT No Appearance THIRD RESPONDENT R Ranken, solicitor
ORDERS:	1. The respondents Nicholas Favell and Zielke Investments are ordered jointly and severally to pay the applicant Gemma Carroll the sum of $2934 by way of compensation for loss and damages; 2. The respondents Wayne Zielke and Zielke Investments are ordered jointly and severally to pay the applicant Gemma Carroll the sum of $11735 by way of compensation for loss and damages; 3. No order as to costs.