Carter v Linuki Pty Ltd t/as Aussie Hire

[2004] NSWADT 287

Set aside by Appeal: Set Aside by Appeal on 22/08/2005

CITATION:	Carter v Linuki Pty Ltd t/as Aussie Hire & Anor [2004] NSWADT 287
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Sally Carter RESPONDENT Linuki Pty Ltd t/as Aussie Hire & Fitzgerald
FILE NUMBER:	041008
HEARING DATES:	27/04/2004 & 11/05/2004
SUBMISSIONS CLOSED:	06/07/2004
DATE OF DECISION:	12/15/2004
BEFORE:	Rice S - Judicial Member; Monaghan-Nagle L - Non Judicial Member; Mooney L - Non Judicial Member
APPLICATION:	Sex Discrimination - In work - Sexual Harassment - In workplace
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Anti-Discrimination Act 1977 Administrative Decisions Tribunal Act 1997
CASES CITED:	D v Berkeley Challenge Pty Ltd [2001] NSWADT 92 Dee v Commissioner of Police, NSW Police & Anor (No 2) [2004] NSWADT 168 Director General, Department of Education & Training v FP and FQ on behalf of FR (EOD) [2003] NSWADTAP 51 G v R and the Department of Health, Housing and Community Services [1993] HREOCA 20Hamilton v Whitehead (1988) 166 CLR 121 M v R (1988) EOC 92-229 Re: G And Commission For The Safety, Rehabilitation And Compensation Of Commonwealth Employees No. S89/234 AAT No. 6880 Tabbouch v Noyeux [2003] NSWADT 6 Zanella v Carroll's Auto Repairs Pty Ltd & anor [2001] NSWADT 220
REPRESENTATION:	APPLICANT D Hillard, solicitor RESPONDENTS In person
ORDERS:	The complaint is dismissed.

What happened

1 Linuki Pty Ltd trades as Aussie Hire, which hires out building construction and industrial equipment. In September 2002 Mr Mike Fitzgerald, a director of Linuki Pty Ltd employed Ms Sally Carter as a general secretary and accounts clerk to work at the Aussie Hire office.

2 Monday 2 December 2002 was a rostered day off for the building industry, and the day on which Aussie Hire held an annual party for invited customers. Mr Fitzgerald hired a woman to serve food and drinks to the guests at the party. Mr Fitzgerald says that the woman, who has been referred to only as ‘Anne Marie’, was hired to be “topless and in lingerie” while serving the guests.

3 Employees of Aussie Hire were allowed by Mr Fitzgerald to attend the function. No Christmas party or other end-of-year event was arranged by Mr Fitzgerald for Aussie Hire employees.

4 The party took place at the rear of Aussie Hire’s premises, under cover of a roof and behind a white cloth screen that was hung to separate the party area from the office area.

5 Guests for the party arrived between midday and 1pm and walked through the Aussie Hire office area to the rear of the premises. Anne Marie arrived at about 1pm and went through to the party area.

6 From the time that the guests began arriving, and when Anne Marie arrived, Ms Carter was at her usual position at the reception desk. She attended to her duties until 2pm when she left the premises for lunch. After an hour she returned to the premises, collected her belongings and left a note to say that she had left for the day.

7 Ms Carter says that before the day of the party she had thought, from conversations she overheard, that Anne Marie was a stripper. She says that when the party commenced, however, she became convinced that Anne Marie was a prostitute who engaged in sexual acts with the guests at the party.

8 Ms Carter did not attend the party. She did not see what happened behind the cloth screen. Her conclusion that Anne Marie was a prostitute who engaged in sexual acts with the guests at the party is based on what she says she heard.

9 We have considered the evidence of Ms Carter as to what she saw and heard. Ms Carter concedes that she did not see any of Anne Marie’s conduct. Her allegations are based only on inferences she draws from certain experiences, principally sounds and silences she said she heard. We have considered the evidence of Mr Fitzgerald as to what he arranged for Anne Marie to do, and what he saw her do. Mr Fitzgerald was present at the party from time to time during the afternoon, and saw some of Anne Marie’s conduct. Mr Fitzgerald is the person who engaged Anne Marie to be at the party. No other evidence was called as to what took place at the party.

10 It is not strictly necessary for us to decide what happened at the party, as Ms Carter’s complaint concerns not what occurred at the party, but Mr Fitzgerald’s conduct in putting her in the position she was in. In making her complaint, however, Ms Carter has made serious allegations concerning the propriety of Mr Fitzgerald’s conduct. Those allegations were not pursued during the case. They were not, for example, put to Mr Fitzgerald in cross-examination, and they do not form part of the case argued for Ms Carter under the Anti-Discrimination Act 1977: it was argued in submissions that what Mr Fitzgerald had done was “[hire a] woman to attend as a form of entertainment, topless and dressed in skimpy attire”. Ms Carter’s claims nevertheless remain on the public record as serious allegations concerning Mr Fitzgerald and the manner in which he conducts his business.

11 On the basis of the evidence of Ms Carter and Mr Fitzgerald, we would be satisfied that the conduct at the party alleged by Ms Carter did not take place. Ms Carter’s allegations are conjecture, and the events and occurrences she relies on do not reasonably support the inferences she drew as to what happened at the party. As we noted, Mr Fitzgerald’s eye-witness account of what occurred at the party was not challenged in cross-examination.

12 But whatever she heard, and however reasonable the conclusion she came to, there is no doubt that Ms Carter was distressed by what she believed was happening. We make no judgment, and it is not our role to make any judgment, about the arrangements made for, and the activities at, the party other than to assess them against the requirements of the Anti-Discrimination Act 1977.

13 Ms Carter says that she was so distressed by what she believed was happening that she did not return to Aussie Hire after leaving on that day, resigned her employment, and sought medical attention and counselling. She lodged a complaint with the Anti-Discrimination Board.

Liability of Linuki Pty Ltd

14 Linuki Pty Ltd and Mr Fitzgerald are effectively one and the same for purposes of legal liability – the conduct is Mr Fitzgerald’s and the liability is Linuki’s. The ‘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 (1988) 166 CLR 121 per Mason CJ and Wilson and Toohey JJ at 127 applying Tesco Supermarkets (1972) and H L Bolton (Engineering) (1957)). Mr Fitzgerald, a director of Linuki Pty Ltd who worked on a fulltime basis at Aussie Hire, was effectively the company’s mind, and the conduct of Mr Fitzgerald was the conduct of the company (see M v R (1988) EOC ¶92-229 at p 77,173). When we consider the liability of the company in this decision, we are in fact considering the liability of the company for Mr Fitzgerald’s conduct.

Conduct complained of

15 Ms Carter’s complaint was not made against Anne Marie, or about her conduct. Ms Carter’s complaint was made against her employer, about Mr Fitzgerald’s conduct.

16 Submissions for Ms Carter identify the conduct complained of as “the hiring of a woman to attend as a form of entertainment, topless and dressed in skimpy attire”. The submissions refer to Linuki’s conduct as “introduc[ing] . . . conduct of a sexual nature in to the workplace environment, and as having “exposed [Ms Carter] to . . . conduct of a sexual nature”.

17 Ms Carter’s complaint was not merely that Mr Fitzgerald had arranged a topless waitress to attend the party, but that that arrangement was made without regard to her being nearby, and aware of, the party. Speaking of the party, she wrote in her complaint to the Anti-Discrimination Board “I have never been exposed to anything like that”. In her statement that was in evidence at the inquiry she said “I will never forget what Mike did to me. I should never have been put in that situation . . . I kept thinking to myself ‘why is Mike putting me through this?’ ”. In cross-examination it was put to Mr Fitzgerald both that he knew that Ms Carter would be uncomfortable being at work while the party took place, and that he had not encouraged her to attend the party.

18 The conduct that Ms Carter complained of to the Anti-Discrimination Board, and that was the subject of the inquiry, was her employer’s arranging a topless female waitress to attend a party at the workplace in circumstances where Ms Carter would be, and in fact was, aware of the presence of the topless female waitress.

Conduct of a sexual nature, and unwelcome

19 The serving of drinks and food by a woman wearing underwear but no top is conduct of a sexual nature. That conduct was engaged in by Anne Marie and, as we pointed out above, it is not conduct complained of.

20 A finding of sexual harassment in these circumstances requires that Mr Fitzgerald’s conduct was conduct of a sexual nature (s22A(b)). It was submitted for Ms Carter that “there can be no doubt that the hiring of a woman to attend as a form of entertainment, topless and dressed in skimpy attire, constitutes conduct of a sexual nature”. We do not think the issue is without doubt; it appears arguable that the act of commissioning someone to engage in sexual conduct is not itself sexual conduct.

21 For the sake of argument, and not as a finding of fact, we will assume that Mr Fitzgerald’s conduct was conduct of a sexual nature.

22 A finding of sexual harassment in these circumstances also requires that the conduct of a sexual nature was “unwelcome” (s22A(b)). We agree that the conduct was both uninvited and unwanted by Ms Carter.

23 The next question is whether the unwelcome sexual conduct was conduct “in relation to” Ms Carter (s22A(b)).

Conduct “in relation to”

24 The term “in relation to” is intended to identify a nexus between the conduct of a sexual nature and the person who complains of harassment. Its effect is to exclude from the definition of sexual harassment conduct which occurs independently of the person who complains of harassment.

25 It was submitted for Ms Carter that the phrase “in relation to” does not, in its context, require that the alleged conduct was personally directed at a complainant, but only that it affected a complainant. The submission says that this broad understanding of the meaning of “in relation to” in s22A(b) is apparent from a comparison with the narrower terms of s22A(a) where an advance or request must be made “to” the complaint. It was submitted that s22A(b) could have been expressed more narrowly by saying ‘conduct towards’ or ‘conduct directed at’, and that because it was not expressed in those terms the provision does not require the conduct to have been personally directed at a complainant.

26 There might be a simple grammatical reason for the difference in wording: s22A(b) could not have been expressed in identical terms to s22A(a) because the preposition ‘to’ that is used after the words ‘advance’ and ‘request’ in s22A(a) would not usually be used after the word ‘conduct’ as it appears in s22A(b). But at the same time there does appear to be a difference in intent between the two provisions; the word ‘conduct’ in s22A(b) could have been followed by ‘towards’ but instead it is followed by “in relation to”, and we discern a consequent difference in meaning. It is not however the difference argued for by the applicant.

27 We do not agree that the phrase “conduct in relation to”, as the applicant submits, “merely requires that the conduct must be such that it affected the applicant”. The phrase encompasses conduct that is more remote from the applicant than if the word “towards” had been used, but it nevertheless requires a connection with the applicant, or that the conduct was done with the applicant in mind. Thus the phrase could encompass a complainant’s being aware of something of a sexual nature a person does or writes or says about the complainant to a third person, but not something of a sexual nature a person does or writes or says, unrelated to the complainant, to a third person.

28 On behalf of Ms Carter we were referred to the decision in Tabbouch v Noyeux [2003] NSWADT 6 as an example of an occasion when sexual harassment was found to have occurred when a woman was aware of but did not see a pornographic picture. We do not read the decision in that way, and understand that not only did the woman in fact see the picture, but was shown it. Relevantly, the decision says:

18 On 1/3/01 when the applicant arrived at work the respondent produced a picture of a woman in a sexual act with a horse and showed it to the applicant saying: "Hey Sawrah, have a look at this. It’s a girl fucking a horse. I got it off the internet."

19 The applicant was repulsed by this and walked away.

29 We were referred to the decision G v R and the Department of Health, Housing and Community Services [1993] HREOCA 20 as an example of an occasion when sexual harassment was found to have occurred when a woman became aware that a toy in the shape of a penis had been placed on a desk on the other side of a partition from the woman’s desk. The factual situation was more complicated than suggested in the submissions to us.

30 In G v R Sir Ronald Wilson said that “[t]he facts [of the case] were canvassed exhaustively in the appeal proceedings in the Administrative Appeals Tribunal . . . I do not propose to detail them”. In the Administrative Appeals Tribunal decision he refers to (Re: G And Commission For The Safety, Rehabilitation And Compensation Of Commonwealth Employees No. S89/234 AAT No. 6880; 29 April 1991) the Tribunal states at para 6 that “[o]n the applicant's evidence, she noticed the toy displayed on A's desk, or on the return of A's desk”. It is clear from this that the woman did see the toy in an adjacent office space. Although the toy was not shown to the woman, she did see it and remained aware of its presence over time, as a result of others’ comments.

31 In those circumstances it is not accurate to imply, as the submission appears to, that that case concerned a woman merely being aware of something she did not see. The conduct under consideration was not only the presence of the penis-shaped toy which she had seen, but also the continuing comments of other staff concerning the toy, over a period of some weeks.

32 The decision in G v R is a useful indication to us of how the phrase of “in relation to” should be understood. Even though the woman in that matter did see, and knew exactly the nature of, what it was that caused her to be distressed, and even though the conduct was more than the mere presence of an offending object but included related comments by work colleagues over some weeks, Sir Ronald Wilson had reservations about whether the conduct was engaged in “in relation to” the complainant. He said

The complainant admitted that the commentary associated with the toy was not directed at her; she simply overheard it . . . If the comments were directed to anyone, it is to be assumed that they were directed to the complainant's husband. . . It must be remembered that the complaint is one of sexual harassment of her, not of him. I have not had the benefit of hearing evidence from him. In the circumstances there are difficulties in finding that the conduct complained of was "in relation to the complainant". Nevertheless for the purposes of this application I am prepared to accept that the conduct could be so interpreted; my reason for doing so is that in other circumstances the presence in a workplace of sexually offensive material which is not directed to any particular employee may still constitute sexual harassment where a hostile or demeaning atmosphere becomes a feature of the workplace environment.

33 Sir Ronald Wilson had difficulty saying in the circumstances that the conduct was conduct “in relation to” the complainant and, in dismissing the complaint, found only “a prima facie case on the question of whether the conduct was . . . directed at her”.

34 The basis on which Sir Ronald Wilson was prepared to accept that the conduct could have been conduct “in relation to” the complainant was that “the presence in a workplace of sexually offensive material which is not directed to any particular employee may still constitute sexual harassment where a hostile or demeaning atmosphere becomes a feature of the workplace environment”. On that reasoning, if a hostile or demeaning atmosphere has not become a feature of the workplace environment, then it will be very difficult to establish that conduct of a sexual nature not directed to a particular employee is conduct “in relation to” that employee.

35 In Ms Carter’s case the evidence falls well short of establishing that a hostile or demeaning atmosphere had become a feature of the workplace environment. The only occurrence that troubled Ms Carter is the conduct she complains of. While deeply distressing to her, that single instance did not itself, in the circumstances result in a hostile or demeaning atmosphere becoming a feature of the workplace at Aussie Hire. To the contrary, Ms Carter’s evidence was that until the afternoon of day in question she was happy in her job with the respondent, she was treated well, she was respected and was not under pressure.

36 In Zanella -v- Carroll's Auto Repairs Pty Ltd & anor ([2001] NSWADT 220) the Tribunal considered the situation of a woman who entered a part of the workplace she had never been before, where a calendar featuring a picture of a naked woman was hanging. For the purpose of its analysis, the Tribunal accepted that the posting of the calendar was conduct of a sexual nature. The Tribunal said:

71 . . . There is no evidence of any particular connection between the posting of the calendar, or its presence on the wall, and the presence of Ms Zannella, other than the common gender of the people depicted on the calendar and that of Ms Zannella.

72 There is no evidence of reference being made to the calendar in the presence of Ms Zannella or of attention being directed to it during the course of the inspection. Ms Zannella’s amended evidence was that the calendar was some three to four metres from where she was standing during the inspection and that, in what she described as a gloomy space, a light was directed on the car engine.

73 Ms Zannella was not a regular visitor to the workshop and had never before been in the rear part of the workshop where the inspection took place. The premises, or that part of the premises of the workshop where the inspection took place, had no particular connection with Ms Zannella other than on the occasion of the inspection. These circumstances are therefore in contrast to those of, for example, employment where an employee would have an ongoing connection with the premises, and with any visible posted material, by virtue of the employee’s frequent and routine occupation of the premises.

74 The Tribunal concludes then that, in the particular circumstances of this case, it cannot be said that the calendar was posted in relation to Ms Zannella.

37 That decision was made “in the particular circumstances of this case”, and the Tribunal was concerned to point out that:

75 That is not to say that the posting of a calendar of the type alleged by Ms Zannella could not in any circumstances amount to sexual harassment . . . There may well be instances where such conduct would amount to sexual harassment where the circumstances are such that it can be said that the conduct was done in such a way or in such circumstances as to be “in relation to” that person.

38 However, the decision serves to illustrate the approach to be taken, in the particular circumstances of any case, to the term “in relation to”. The Tribunal’s approach was based on this view:

70 The words “in relation to (the person)”, as they are commonly used, indicate a connection with the person, being in reference to the person or being with regard to the person.

39 We agree. Our analysis of the respective terms of s22A(a) and s22A(b), and discussion of the decisions above, support this view.

40 Mr Fitzgerald’s conduct, although it adversely affected Ms Carter and was engaged in without thought as to the possibility of such an adverse effect, was not conduct that was engaged in “in relation to” Ms Carter. That being so, the conduct in the circumstances of this case, even if it was conduct of a sexual nature, was not sexual harassment as defined in the Anti-Discrimination Act 1977.

Submissions on sex discrimination

41 At the conclusion of the hearing the parties were invited to make submissions in relation to the evidence. In written submissions Ms Carter’s lawyers addressed only the claim of sexual harassment, and sought leave “to provide further written submissions in respect of the alternative claim of sex discrimination in employment, in breach of sections 25(2)(a) and 25(2)(c) of the Act”. Having regard to the considerations in s75 of the Administrative Decisions Tribunal Act 1997 and the circumstances of this matter we do not consider the provision of further submissions necessary.

Sex discrimination: conduct complained of

42 In her complaint to the Anti-Discrimination Board Ms Carter did not say that she was complaining of sexual harassment. She detailed the conduct she was complaining of and characterised it as sex discrimination. The President of the Anti-Discrimination Board characterised it as sex discrimination and/or sexual harassment and the inquiry proceeded on that basis.

43 Conduct that is or could be sexual harassment is or could be, as well, sex discrimination. But under the Anti-Discrimination Act 1977 the tests for the two are quite different, and have to be established separately (see eg Dee v Commissioner of Police, NSW Police & Anor (No 2) [2004] NSWADT 168 at [54]). If one is established then there is no need to consider whether the other arises (see eg D v Berkeley Challenge Pty Ltd [2001] NSWADT 92 at [72]). In this case, although the conduct is not sexual harassment as defined, it may be sex discrimination.

44 In a Statement of Legal Issues that Ms Carter, through her lawyers, elected to file with the Tribunal, the conduct that was said to be discrimination was that Ms Carter was not invited to the party. That conduct was said to be direct discrimination (s24(1)(a)). In the circumstances, a suggestion that Ms Carter would complain of direct discrimination is surprising. Her claim would be that she should have been invited. But the party was the last place she wanted to go. An invitation would have been, at the least, pointless. Perhaps a claim of indirect discrimination could arise.

45 But in any event that conduct was not the subject of complaint to the Anti-Discrimination Board. It was not a complaint that was referred to us. Only one complaint was referred by the President of the ADB to the Tribunal for inquiry, relating to the conduct described above in paragraph 17. That is the conduct that could be characterised as either or sexual harassment or sex discrimination.

46 Ms Carter’s initiating letter to the Anti-Discrimination Board did not make a second complaint of sex discrimination relating to some other conduct. She did not complain of not being asked to the party. She made a single reference to her asking if there would be another Christmas party that year, but otherwise she complained of the conduct that is discussed above in relation to sexual harassment. In her statement in evidence Ms Carter says she felt that the party was one to which she was not welcome and, impliedly, to which she was not invited. It was put to Mr Fitzgerald in cross examination, and he agreed, that Ms Carter had not been asked or encouraged to attend.

47 But no complaint about any such conduct was made, and none has been referred to us. We would exceed our jurisdiction were we to consider such a complaint. We can consider only to the conduct complained of and referred to us for inquiry: Mr Fitzgerald’s making arrangements for a workplace party where someone would engage in conduct of sexual nature, in circumstances where Ms Carter would be, and in fact was, aware of the conduct as it occurred.

Sex discrimination: direct

48 If the conduct complained of is analysed by reference to s24(1)(a), the first consideration is whether that conduct was ‘treatment’ of Ms Carter. We have already said that that conduct was not conduct “in relation to” Ms Carter. Similarly, it cannot be said that, through that conduct, Mr Fitzgerald ‘treated’ Ms Carter in any way: the conduct was not directed to her. It was not treatment of her.

49 If we are wrong, and the conduct was ‘treatment’ of Ms Carter, then the next question is whether she was treated less favourably than, in the same circumstances or circumstances which were not materially different, a person of the opposite sex was or would have been treated.

50 In the circumstances, it was demonstrably not less favourable treatment. On Ms Carter’s own evidence, there were male employees in the same circumstances, or in circumstances which were not materially different, who were treated in the same way. For male and female employees alike, Mr Fitzgerald made arrangements for a workplace party where someone would engage in conduct of sexual nature, and employees would be, and in fact were, aware of the conduct as it occurred.

51 The conduct complained of is not conduct described in s25(1)(a) of the Anti-Discrimination Act 1977.

Sex discrimination: indirect

52 The Tribunal invited Ms Carter, who was legally represented, to consider whether the conduct she complained of could be characterised as involving a discriminatory requirement or condition. If so, the evidence and argument could have addressed the considerations in s24(1)(b), commonly known as ‘indirect’ discrimination.

53 The ‘Statement of Legal Issues’ filed on behalf of Ms Carter had not identified ‘indirect discrimination’, or matters relevant to s24(1)(b), in relation to this or any other conduct. The written submissions filed on behalf of Ms Carter at the conclusion of the evidence refer to submissions only “in respect of the alternative claim of sex discrimination”.

54 In any event, the necessary elements to be established under s25(1)(b) were not addressed by the evidence. Whatever the facts suggest might be argued under the Anti-Discrimination Act 1977, no evidence was led by a legally represented party on the issue. In those circumstances we are unable to make findings on matters relevant to s24(1)(b); not only has Mr Fitzgerald not been given notice that he is at risk of such a finding (Director General, Department of Education & Training v FP and FQ on behalf of FR (EOD) [2003] NSWADTAP 51 at [33]), but the applicant has made it clear that she seeks no such finding.

Summary of findings

55 We have found that the conduct complained of was not sexual harassment within the meaning of s22A of the Anti-Discrimination Act 1977. We have found that the conduct complained of was not sex discrimination within the meaning of s25(1)(a) of the Anti-Discrimination Act 1977. We are not able to make a finding as to whether the conduct complained of was sex discrimination within the meaning of s25(1)(b) of the Anti-Discrimination Act 1977. Accordingly, the complaint is not substantiated.

ORDERS

The complaint is dismissed.