Caton v Richmond Club Limited - [2003] NSWADT 202

CITATION: Caton v Richmond Club Limited [2003] NSWADT 202

DIVISION: Equal Opportunity Division

PARTIES: APPLICANT
Gail Caton
RESPONDENT
Richmond Club Limited

FILE NUMBER: 021040

HEARING DATES: 25-26/07/2002, 30/09/2003

SUBMISSIONS CLOSED: 09/30/2002

DATE OF DECISION:
08/27/2003

BEFORE: Lees M - Judicial Member; Edwards K - Member; Farmer L - Member

APPLICATION: Sex Discrimination - In work - Sexual Harassment - In workplace

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Anti-Discrimination Act 1977
Sex Discrimination Act 1984 (Cth)

CASES CITED: Waters v Public Transport Corporation (1991) 173 CLR 349
Shellharbour Golf Club & Wheel (1999) NSWSC 224
D. & Berkeley Challenge (2001) NSWADT 92
Judge v Cripps & Cripps Pty Ltd (1999) NSWADT 11
Russell v Commissioner of Police, New South Wales Police Force & Ors [2001] NSWADT 32
Hudson v Strathfield Golf Club [2000] NSWADT 88
NSW Breeding & Racing v Administrative Decisions Tribunal [2001] NSWSC 494

REPRESENTATION: APPLICANT
J Azzi, barrister
RESPONDENT
D Russell, barrister

ORDERS: The Richmond Club Limited is to pay the complainant the sum of $15000.00 within 28 days of the date of this decision by way of compensation for the damage the complainant has suffered by reason of the sexual harassment to which she has been subjected.

1 The complainant, Ms Gail Caton, commenced employment as a receptionist/bar tender with the respondent, the Richmond Club Limited, on 14.02.1998 and left its employment on 16.05.2000.

2 The complainant made a complaint through her legal representatives to the Anti-Discrimination Board (the ADB) which was received by the ADB on 15.09.2000. The complainant alleged a fellow employee had sexually harassed her whilst she was employed by the respondent. Specific reference was made to an incident alleged to have occurred on 16.03.2000. The complaint was investigated by the ADB pursuant to the terms of the Anti-Discrimination Act 1997 (the Act).

3 On 11.03.2002 the complainant wrote to the ADB requesting that her complaint be referred to the Administrative Decisions Tribunal (the Tribunal). By letter dated 10.04.2002 the President of the ADB referred the complaint to this Tribunal pursuant to s. 94(1) of the Act. This Tribunal’s jurisdiction to conduct an inquiry into the complaint is founded upon s. 96 of the Act and s. 37 of the Administrative Decisions Tribunal Act 1997.

Relevant Provisions of the Act

4 Part 2A of the Act prohibits sexual harassment in certain areas. Section 22A of the Act defines sexual harassment as follows:

(a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the other person, or

(b) the person engages in other unwelcome conduct of a sexual nature in relation to the other person, in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be

(c) offended, humiliated or intimidated.

5 Section 22B(2) of the Act makes it "... unlawful for an employee to sexually harass a fellow employee or a person who is seeking employment with the same employer".

6 Direct discrimination on the ground of sex is set out in s. 24 of the Act and provides:

(a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of the opposite sex or who does not have such a relative or associate of that sex, or ……..

7 Sub-section 25(2) of the Act provides:

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

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

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

8 Section 53 of the Act is headed ‘Liability of principals and employers’ and reads:

(2) If both the principal or employer and the agent or employee who did the act are subject to any liability arising under this Act in respect of the doing of the act, they are jointly and severally subject to that liability.

(3) Despite subsection (1), a principal or an employer is not liable under that subsection if the principal or employer took all reasonable steps to prevent the agent or employee from contravening the Act.

9 The Referral Report prepared by the President of the ADB giving rise to this Tribunal’s inquiry was admitted in full into evidence in the early stages of the Tribunal hearing.

10 The alleged harasser, Mr Robert Crowley, a fellow employee of the complainant at the relevant time, was not named as a respondent in the complaint and was not called upon to provide evidence to the Tribunal. The employer, the Richmond Club Limited, was named as sole respondent.

11 In addition to the oral and documentary evidence provided by the complainant herself, the complainant relied upon the documentary evidence of general practitioner Dr Phillip Sutherland, psychiatrist Dr Andrew Robertson (report of 30.11.2000) and psychologist Ms Katrina Hoser (report of 17.08.2000). The complainant also had the Tribunal summons Mr Greg and Mrs Sandra Bateman to attend to give oral evidence in the matter.

12 The respondent relied on the written and oral evidence of: Ms Nerida Hawkins, Ms Maree Brown, and Mr Barry Adams.

13 The complainant’s early work experiences in the 1970s were as a receptionist-typist with accountancy and medical practices as well as with an advertising agency. In 1981 after her first child the complainant began casual work in the bistro of a local Club. The complainant had three more children between 1982 and 1988 and worked during some of the periods in between. From 1988 her work was with the Richmond Inn Hotel until 1994 when she joined the Bligh Park Family Tavern which she subsequently left in 1998 in order to begin her employment with the respondent.

14 The complainant was an employee of the respondent (or alternatively ‘the Club’) from 14.01.1998 to 16.05.2000, undertaking different roles but principally working as a receptionist or bar tender.

15 At the time of her employment, after being interviewed and then offered a job, the complainant was provided with a copy of the respondent’s ‘Employee Handbook’ with the instruction to take it home, read it and then sign an acknowledgment that it had been read. The complainant described the Employee Handbook as containing all the respondent’s ‘rules and regulations’.

16 The complainant’s evidence before the Tribunal was to the effect that she had experienced three incidents of sexual harassment by Mr Crowley. It was the third incident that gave rise to her reporting Mr Crowley to her supervisors and which formed the basis of her subsequent complaint to the ADB. The complainant also suffered a non-sexual assault while employed at the Club. This occurred in December 1999.

Alleged Sexual Harassment Incident #1

17 The first incident involved Mr Crowley ‘tweaking’ the complainant’s right nipple while she had both hands full carrying a tray of glasses. No further details or the actual date of this incident were provided in the complainant’s oral evidence. One of the medical reports (Dr Robertson) records that it occurred in October 1999 and that the complainant felt angry, upset and embarrassed by the incident. The report also notes the complainant reporting that previous to this incident Mr Crowley had patted her bottom.

Alleged Sexual Harassment Incident #2

18 Two or three days after incident #1 the complainant had been returning to the main bar from the veranda at the Club, again with her hands full of glasses, when Mr Crowley came up behind her and when she turned around he ‘grabbed both my breasts and shook them’. Two other employees, Mr Paul Dries (who worked on the pokies) and Mr Daryl Wescombe (a cellarman), were present at the time and the three ‘all looked at each other’ in shock and then the complainant ‘ran away’ back to reception crying. Mr Wescombe approached the complainant and asked if she was all right and asked why she didn’t say something to Mr Crowley, adding he would have stood up for her. The complainant’s evidence was that she had been shocked by the incident.

19 The complainant subsequently spoke to Mr Crowley reprimanding him as to the inappropriateness of his actions and warning him not to act in such a way again. Mr Crowley apparently responded at the time to the complainant to the effect he was sorry and knew he had done the wrong thing and ‘overstepped the mark’. The complainant said after this she avoided Mr Crowley whenever she could; she thought her reprimand had worked and that the matter had been ‘dealt with’. She stated in evidence that she did not see Mr Crowley for some time. It is noted that in Dr Robertson’s report the complainant is reported as thinking Mr Crowley ‘went to Darwin for a couple of months’.

20 The complainant’s explanation as to why she did not report this incident formally to the relevant supervisor/manager included because Mr Crowley had been at the Club so long and that she had wondered to herself whether she had ‘encouraged it in some way’ adding that mostly ‘you put up with it’. Mr Crowley was also the complainant’s supervisor on occasion and she was a much newer ‘recruit’ at the Club. Her desire was to keep harmony/not to create disharmony and not to create upset in the workplace.

Separate Assault Incident

21 Evidence was also adduced which established that the complainant had been the subject of an assault during her employment with the respondent. On the night of 30.12.1999 the complainant was working on ‘door duty’ and refused a female patron entry on the basis the patron was slightly intoxicated and using foul language. The patron was also a former employee of the Club. She was however subsequently let into the Club by the complainant’s supervisor on the bases the patron promised to behave and could be barred if she misbehaved. As it happened the patron did end up misbehaving and was asked to leave the Club several times. A security guard was called but the patron walked unescorted from the Club and on nearing the complainant assaulted her by placing her hand around the complainant’s throat, twisting the complainant’s arm, screaming at and threatening to kill the complainant as she did so. The police subsequently charged the patron with assault. The complainant felt strongly about being overruled by her supervisor and then angry about the assault.

Alleged Sexual Harassment Incident #3

22 According to Dr Andrew Robertson’s report on the complainant of November 2000, the complainant thought at that time that at a time late in 1999, Mr Crowley had gone to Darwin for about two months. The complainant’s evidence to the Tribunal was that about a ‘couple of months’ after incident #2, on the evening of 16.03.2000, Mr Crowley came over to her while she was on the phone and started stroking her arm, making comments to her as he did so such as ‘show me your tits’, ‘are your nipples hard’, ‘can I feel them’, ‘do they stand erect’. In response the complainant told Mr Crowley to ‘go away’ and asked another employee ‘Marilyn’ to ’get him to go away’. The complainant alleges Marilyn replied ‘No, he’ll start on me’. The complainant’s evidence was that Marilyn was about 8-10 feet away and well within hearing distance at the time of the incident.

23 Following this action by Mr Crowley (i.e. on the same evening) the complainant reported him to her supervisor/s, Mr Dale Hunt and Ms Colleen Hayman. Mr Hunt made a typewritten record of the report attaching it to a book known as the ‘Managers Book’. The Managers Book was a book kept in the Club’s safe in which relevant supervisors or managers recorded relevant daily/nightly incidents. The Managers Book was perused in the mornings by the relevant manager who would then report certain items to the General-Manager. According to this record:

Though Gail does not want the matter attended to, I thought that attention should be noted by management in case other incidences are occurring without our knowledge’.

24 On the morning of 17.03.2000 at about 8.30am Mr Anzelark (name as spelt in the Club ‘Operations Manual’ of 1998), the Club’s Operations Manager, drew the particular report by Mr Hunt of the complainant’s allegation to the attention of the Club’s General Manager, Mr Barry Adams.

25 Ms Nerida Hawkins commenced employment with the Club in July 1990 as a payroll/office clerk. By June 1999 she had been appointed to the position of ‘Personnel Compliance Manager’ (also referred to as Personnel Officer and Personnel Administrator), the position she held at the time of incident #3 and for about the following three weeks, before she left the Club’s employment on 05.04.2000. Ms Hawkins attended the Tribunal hearing and gave oral evidence. Ms Hawkins also provided a written statement. In this position Ms Hawkins duties concentrated on ‘personnel, compliance and other administrative matters’. She had been doing this type of work for about a four-year period spanning 1996 to 2000. Ms Hawkins assisted with recruitment and rostering of employees as well as occasionally counselling staff ‘if the floor supervisor could not handle the matter’ as well as keeping the relevant records associated with these duties.

26 Ms Hawkins became aware of the incident of 16.03.2000 on the morning of 17.03.2000 when the complainant came to see her. She asked the complainant to provide details of the incident in writing straight away.

27 Ms Hawkins recalls there only ever having been one complaint made about sexual harassment during her role as Personnel Compliance Manager. Accordingly Ms Hawkins described the complainant’s complaint as a ‘new experience’. Ms Hawkins described the complaint as the most serious she had ever dealt with. Ms Hawkins stated she and Mr Anzelark realised it was a serious matter and ‘wanted to do the right thing/handle it correctly’. Ms Hawkins did not think that she and Mr Anzelark consulted the Club’s Operations Manual.

28 After finishing her written account the complainant met with both Ms Hawkins and Mr Anzelark. At that meeting, the complainant stated in evidence, she was questioned by Ms Hawkins and Mr Anzelark as to what had happened and on being told, Ms Hawkins replied ‘He’ll probably deny it’ and that they ‘knew things were happening but no one would complain’. The complainant says she replied in turn ‘he can’t deny it’. The written account by the complainant referred also to the two earlier incidents of harassment by Mr Crowley. The complainant felt very uncomfortable at this point in time as she knew Mr Crowley was generally well-liked. Although assured the matter would be dealt with confidentially, the complainant was afraid it would ‘get out’ and she would be considered ‘a bitch’.

29 Ms Hawkins’ evidence to the Tribunal was that she did not make any statement to the effect alleged by the complainant i.e. that she was aware of previous inappropriate behaviour of Mr Crowley. The complainant rejected this denial by Ms Hawkins. The complainant interpreted Ms Hawkins’ statement to mean that the Club management had not received any former complaints about Mr Crowley prior to hers. The complainant was quite convinced that the Club’s management knew of Mr Crowley’s behaviour prior to her reporting him and that it had done nothing about it to protect her or anybody else from him and it should have.

30 Ms Hawkins recalled Ms Maree Brown as a ‘fellow Manager’. Ms Hawkins did not recall ever discussing Mr Crowley with Ms Brown or considering Mr Crowley’s performance. Asked whether there had been any occasion to appraise Mr Crowley, Ms Hawkins stated ‘he carried out his duties in an adequate manner’, completing his administrative duties and no prior complaints had been made about him…‘staff were happy working for him’…‘only used as a relief supervisor on a needs basis, he was capable when need arose’. Ms Hawkins explained she did not appraise staff because ‘we didn’t do formal appraisals within the Club’… ‘there was no system in place at the Club to do that’ … ‘the Club commissioned a company to do staff appraisal’. In the ten year period between 1990 and 2000 Ms Hawkins did not recall Mr Crowley’s personality or behaviour being brought to her attention.

31 Mr Adams, the Club’s General Manager, attended the Tribunal and gave oral evidence as well as providing two written statements. Some of his written correspondence forms part of the ADB President’s Referral Report as well. He recalls learning of Mr Hunt’s report of 16.03.2000 and the complainant’s handwritten account of 17.03.2000 at a meeting with Ms Hawkins and Mr Anzelark on 17.03.2000. In relation to incident #2 alleged by the complainant in the report/complaint, Mr Adams requested that it be investigated by Mr Anzelark because there were allegedly two independent witnesses. Mr Adams did not speak to the complainant straight away or ask anyone to confer with her. Mr Adams’ evidence was that in his thirty years at the Club, it had not had previous experience in dealing with such an issue before. The Club’s policy he stated was to deal with the matter quickly but also to ensure that the correct procedures were followed and that the parties’ interests were all protected. Mr Adams stated he had consulted the Club’s Operations Manual. He understood it stated that sexual harassment was not to be tolerated and that any complaint of such should be treated with discretion and confidentiality and in a manner fair to both parties.

32 Attached to Mr Adam’s written statement of evidence was a typed ‘summary of investigation’ prepared by Mr Anzelark on 17.03.2000. He had contacted and spoken with Mr Wescombe, one of the alleged witnesses of alleged sexual harassment incident #2 by Mr Crowley. Mr Wescombe confirmed that the incident had occurred and that he had offered to help the complainant but she had replied she ‘would look after it herself’. After receiving Mr Anzelark’s report Mr Adams contacted Clubs NSW to ‘enquire as to the best procedure’. Mr Adams considered that Clubs NSW would have ‘up-to-date knowledge’ on the area. The advice he received was to conduct an urgent meeting to deal with the matter, preferably convened by the Club’s Board Chairman.

33 A meeting with Mr Crowley was convened at 6pm on 17.03.2000. Present at the meeting were: Mr Ernie Jones (a Board Director), Mr Adams, Ms Hawkins, Mr Crowley and Mr Crowley’s union representative Ms Sue Horn. Mr Crowley was read the reports of Mr Hunt and the complainant and was asked whether the allegations made against him were true. Mr Crowley admitted that they were true adding that the incidents had been meant ‘in jest’ and asked could he undertake to apologise and not go near the complainant again. After a brief private meeting between Mr Jones, Mr Adams and Ms Hastings, Mr Crowley was dismissed immediately and he left the meeting accompanied by Ms Horn.

34 Mr Adams went to see the complainant. He advised her as to Mr Crowley’s dismissal and departure and apologised to her stating that Mr Crowley’s actions were not condoned by the Club.

35 The complainant did not expect Mr Crowley to behave in the way he did on 16.03.2000 and was surprised by his actions, particularly given that she had specifically warned him after incident #2, ‘I dealt with him on the second occasion. He knew he should not have done it again’. The complainant had not reported Mr Crowley on the earlier occasions as she had spoken firmly to him and believed he would not repeat such action again.

36 In terms of her response to each of the three incidents, the complainant’s evidence was that she felt ‘angry, upset and embarrassed’ and apprehensive about Mr Crowley after the first incident, after the second she felt ‘shock, anger and guilt’ and embarrassment due to the incident’s public nature and the third incident was like ‘the last straw’, she felt ‘shock and disbelief’ and feeling she ‘could not take it anymore’ and ‘had had enough’. Asked why she had reported Mr Crowley this time, the complainant stated that there were ‘so many young girls in the industry, to be supervised by him, they shouldn’t suffer what I suffered’.

37 The complainant’s evidence was a little unclear as to how many days after 17.03.2000 she attended work. It appears approximately two or three days, but then she felt unable to continue and took about four weeks off. The complainant’s evidence was that she was anxious about the staff reaction to her reporting Mr Crowley. She felt people were ‘against her’ and felt unsafe when alone or if people were behind her. The complainant was upset with herself for not reporting Mr Crowley on the earlier occasions thereby letting him get away with his earlier actions. The complainant was not afraid of the Club’s management in this regard; she considered them supportive in the circumstances. The complainant made a workers compensation claim during this time.

38 Mr Adams stated in evidence he was taken by complete surprise by the complaint. He had never before heard a bad word about Mr Crowley. Mr Adams’ evidence was that in his many years at the Club no other discrimination issue or complaint had been raised or reported at all; there had been very few other grievances lodged at all, perhaps less than twenty during his time at the Club, some of a minor nature.

39 Mr Adams believes the action he took as a result of the complaint was appropriate to address the situation. On the Club’s Board being advised of the complaint and the subsequent action taken, it directed that a relevant notice be distributed to staff members annually. Such a notice was first distributed on 12.04.2000. It emphasised the Board’s non-toleration of sexual harassment and the Club’s Equal Employment Opportunity and Occupational Health and Safety policies, with the advice to employees that ‘Departmental training of all sections of the Club will be conducted outlining “Policy 10: Discrimination and Harassment” as contained in our Operational Handbook’. A second notice in similar terms was distributed on 10.10.2001.

40 Following the third incident with Mr Crowley the complainant saw several health practitioners. The respondent organised counselling for the complainant very soon after the incident and the complainant continued to see the psychologist/counsellor Ms. Hoser for about six months (about ten times in all). This counselling was paid for by the respondent. On 18.04.2000 the complainant saw a clinical psychologist (Mr. Gregory Sawyer) also organised by the respondent. The complainant also saw her own general practitioner Dr. Phillip Sutherland who completed the relevant forms for workers compensation purposes. The first form (07.04.00) notes the complainant was suffering from ‘acute stress reaction’ noting as treatment/therapy that the counselling was to continue. The second form (20.05.00) notes re treatment ‘counselling as required’ and the prescription of anti-depressant medication. The complainant saw psychiatrist Dr. Andrew Robertson on 29.11.2000 for the purposes of his preparing a ‘medico-legal’ report. Reports from Ms Hoser and Dr Robertson were tendered to the Tribunal. Mr Sawyer’s report was tendered but withdrawn after discussion.

41 As noted above, the complainant was off work for about one month. During that month she was socially withdrawn and fearful of any possible contact with Mr Crowley locally. She had seen Mr Crowley locally once and was caused ‘to freeze’ feeling intimidated, guilty and uncomfortable. The complainant explained her feeling of guilt as due to the facts Mr Crowley had been at the Club a lot longer than she had and he had been a popular man. She felt guilt about both reporting him and for not reporting him earlier. She felt very bad. Her mood was depressed. The complainant recalled that at the time she was always upset, cranky, anxious and over-smoking. At the time the complainant lived at home with her four children and her partner of eighteen years. She sought to shield her partner and children from the incident by not telling them about it. After a time she did tell her partner. The incident had impacted on her relationship with her partner, in that she ‘closed up’ and ‘withdrew from him’; for a while she did not want her partner to touch her. It was during this period the complainant was prescribed anti-depressant medication. She had never been prescribed anti-depressants before.

42 In relation to the counselling organised for the complainant after the incident Ms Hawkins was not aware of any subsequent monitoring of the complainant, stating that she personally ‘didn’t have time to…..’.

43 The complainant returned to work but handed in her notice. The evidence is inconsistent as to whether she worked out her notice of one week. Her resignation latter was dated 08.05.2000. In it the complainant stated she regretted resigning. She explained this regret as a result of surrendering her job security, she had found most people she worked with to be very nice and the workplace ‘a nice and clean place to work’.

44 After leaving the Club the complainant also left another longstanding (11 years) bar job she had held at the Hawkesbury Race Club. She left work there as she was fearful of, and ‘did not want to deal with’ drunks anymore, or work where her hands were not free and therefore could be ‘touched up’. The complainant stated this fear was 50/50 related to her physical assault and the several harassment incidents. After leaving the Club the complainant maintained casual and part-time positions outside the hospitality industry such as at a medical centre as a receptionist and some relief telephony work at the RAAF base. These jobs involved dealing with people face to face. After a number of months the complainant also returned to work at the Hawkesbury Race Club on the understanding she was not prepared to do ‘tray work’ or ‘night work’, being happier and feeling safer behind the bar counter. At the time of the hearing the complainant was doing some office work at the Richmond Inn and occasionally some relief bar work as well if the Inn was short-staffed. The complainant had remained apprehensive and fearful of being ‘assaulted by anybody’.

45 Ms Hoser’s opinion, as at August 2000 after six of ten counselling sessions, was that the complainant had suffered from a ‘Generalised Anxiety Disorder’ characterised by excessive anxiety ‘about work and trust in men’, associated with irritability, lack of concentration, tension and distress and impairment in social, occupational and family areas of life. She continued to experience a loss of confidence and difficulty relating with her partner.

46 Dr Robertson’s opinion, in November 2000, was that the complainant had suffered ‘a quite severe Anxiety Disorder’ as the result of the combined sexual harassments incidents and the physical assault, adding that ‘[T]he most appropriate DSM-IV diagnosis….is probably of an Adjustment Disorder with anxious and depressed mood. She has received appropriate treatment, and has improved very considerably as a result. There is still some residual phobic anxiety, and because this serves a protective function…it is likely to be present for a considerable length of time, possibly several years.’

47 At the time of the hearing the complainant described her general health as ‘excellent’; she remained on Aropax, a medication prescribed for depression and maintains a fear of close male contact, particularly from behind.

Other witnesses: Ms Brown & Mr and Mrs Bateman

48 The complainant’s evidence was that Ms Maree Brown spoke to her on one of the days following Mr Crowley’s dismissal while both women were in the Club’s reception area. The complainant was uncertain why Ms Brown was in the reception area. She was not certain about when precisely the conversation took place. The complainant’s evidence was that Ms Brown had expressed her sorrow and sympathy to the complainant concerning Mr Cowley. The complainant alleged Ms Brown said to her ‘He has done similar things to me before’ and that she was ‘sorry’ she ‘didn’t do something about it when he did/said things to me. I am sorry you had to go through it…’.

49 Ms Brown provided the Tribunal with a written statement and attended and gave oral evidence to the Tribunal. Ms Brown had previously been an employee of the Club commencing in 1992 as a casual bar attendant ultimately becoming one of the Club’s Managers, taking up the position of Training Manager/Officer on 28.04.1999. She left the Club’s employment on 29.02.2000, i.e. a couple of weeks before harassment incident #3 of 16.03.2000.

50 Ms Brown’s evidence was that she first learnt of the complainant’s report of the third incident and Mr Crowley’s dismissal from the Club not long after the incident from the person she lived with who was a casual employee at the Club at the time.

51 In her statement Ms Brown denied that she had made the statements as alleged by the complainant. In her statement and in her oral evidence Ms Brown denied making these comments because she ‘was not present at the Club on the 17.03.2000 because [she] was not employed at the Club at that time having resigned several weeks before’.

52 In her oral evidence Ms Brown stated that although she had left the Club’s employment she had returned there to visit occasionally for social purposes approximately ten times. On those occasions she would greet people she knew. Ms Brown did not recall seeing or speaking with the complainant on the specific occasion she visited the Club for lunch ‘very early’ after her retirement. She ‘seriously doubted’ she was there around the 17.03.2000.

53 Under cross-examination the complainant was adamant she was not mistaken about what Ms Brown had said to her. She understood Ms Brown to have ‘wished she had done something about it’.

54 Both the complainant and Mr Crowley had worked ‘under’ Ms Brown. Ms Brown stated in her oral evidence that she found Bill Crowley’s manner ‘always very jovial, flirtatious and suggestive…he was having fun’. Personally, she found Bill Crowley’s flirtatiousness inappropriate: ‘we worked that out early on’…‘it was dealt with, I let him know it was inappropriate’. From her point of view Mr Crowley’s manner was inappropriate ‘because I was there to work, not participate in fun.’ Although she regarded Mr Crowley’s manner generally as ‘pretty harmless’ and ‘in jest’ she ‘let him know his manner was unwelcome’ as far as she was concerned and ‘to his credit’ it was not repeated towards her. Ms Brown did not consider Mr Crowley’s flirtatiousness to have been directed at her alone: ‘he did those with everybody’ adding further ‘just because I took offence does not mean everybody else did’. In her observation ‘others had no problem’. She did not see anybody behave as if they found his manner unwelcome. ‘I didn’t go around [watching out for it]…had more important and professional things to do’. Ms Brown did not consider it her ‘place’ to judge Mr Crowley’s work performance; she stated she ‘didn’t pay attention to it’.

55 Ms Brown could not recall whether or not she had ever spoken to the complainant about her own experience with Mr Crowley but considered it ‘possible’.

56 Ms Brown recalled being contacted by the Club’s General Manager, Mr Adams, in relation to the matter and believes she had been contacted because her name had been raised in the discussion of the complaint. She could not remember any specific details of this conversation with Mr Adams except that because of ‘the date’ of her alleged conversation with the complainant, Ms Brown ‘knew straight away’ she could not have had such conversation because she had left the Club’s employment before that date. Ms Brown knew she was not employed at the Club at the relevant time, i.e. post 16.03.2000 and therefore denied the conversation as alleged by the complainant.

57 There was both written and oral evidence in relation to this matter from Mr Adams in relation to his speaking with Ms Brown sometime after Mr Crowley’s departure. Mr Adams’ written reply to the ADB of 21.11.2001 states that neither Ms Hawkins nor Ms Brown ‘were aware of previous behaviour by Mr Crowley similar to that reported by Ms Caton’. In his oral evidence Mr Adams stated he referred Ms Brown to the complainant’s information which suggested Ms Brown had made a comment about Mr Crowley to the complainant and Mr Adams asked Ms Brown if it was true. His evidence was that she replied that she had had an issue with Mr Crowley when she first started at the Club, she had spoken to Mr Crowley about it and never had any more trouble.

Mr Greg Bateman and Mrs Sandra Bateman

58 Mrs Bateman provided oral evidence to the Tribunal. She worked at the Richmond Club from November 1989 until June 1999. Mrs Bateman worked as one of the Club’s Managers, as the Club’s Functions Co-ordinator. In this role Mrs Bateman is referred to as Sandra Goodier in the Operations Manual (& Employee Handbook) of 1998.

59 The complainant alleged that after she had departed from the respondent’s employment, she spoke about Mr Crowley with two of her former colleagues from the Richmond Club, husband and wife Greg and Sandra Bateman, both of whom were managers at the Club and had been supervisors of Mr Crowley. At the time of this conversation Mr and Mrs Bateman had also left the respondent’s employment. The conversation was alleged to have occurred ‘a couple of months’ before the Tribunal hearing. It was during this conversation that the complainant told Mr and Mrs Bateman about her incident/s with Mr Crowley. This was the first Mrs Bateman knew of such. Mrs Bateman was surprised by the actual detail of what Mr Crowley had done to the complainant. The complainant had asked the Batemans if they knew about Mr Crowley’s behaviour at the Club. Mrs Bateman told the complainant about one occasion on which Mr Crowley ‘did something to her’ and that she had ‘got Greg to deal with it’.

60 At the Tribunal hearing, Mrs Bateman described Mr Crowley as ‘flirtatious with women, he enjoyed women’s company’. Expanding on the adjective ‘flirtatious’ Mrs Bateman referred to Mr Crowley coming onto his shift and giving girls a hug, holding their hands, ‘he’d do the same with most women’. More generally Mrs Bateman described Mr Crowley as ‘one of the team’. No one raised objection to his behaviour with Mrs Bateman. It was ‘tolerated’. No other staff member acted in the same way as Mr Crowley. Mrs Bateman did not feel personally offended, harassed or threatened by Mr Crowley’s conduct. She did not observe any other employees having a word with Mr Crowley about his behaviour. Mrs Bateman did not observe Mr Crowley hugging or standing over male staff. Mrs Bateman did observe Mr Crowley being flirtatious with other female staff. She stated they ‘did the same as me’…saying ‘Bob, go away’.

61 On being asked whether she herself had ever experienced Mr Crowley behaving towards her in a manner that made her feel uncomfortable, Mrs Bateman stated that ‘on one occasion I was very busy and Bob was ‘being himself’ …and I asked Greg to have a word with him’…’I was trying to do my work and he was in the way…he ignored [Mrs Bateman’s requests for him to desist] and I asked Greg as he was the Manager that night’. By ‘being himself’ Mrs Bateman described Mr Crowley as getting ‘in the way’, ‘standing over’ her and ‘putting his arm around me’. She did not consider his behaviour sexual; she thought he was somewhat ‘aggravated’ that a woman had asked him to get on with his job.

62 Mrs Bateman was aware that the Club had a sexual harassment policy. She stated it could be found in the Employee Handbook which was required to be read and signed by staff. She recalled receiving a copy of the Handbook to read in about 1996 or 1997.

63 Mr Greg Bateman also provided oral evidence to the Tribunal. Mr Bateman also worked as one of the Club’s Managers; he was the Beverage Manager/Officer. He managed and supervised both Mr Crowley and the complainant in different situations. He considered the Club a happy and good environment in which to work. In reply to the question whether he noticed Mr Crowley behaving differently around women, Mr Bateman stated that ‘Bob was a friendly person, he was different, Bob was Bob….a very happy friendly fellow….good at what he did…cracked jokes..’. Mr Bateman stated he ‘didn’t take much notice’ whether Mr Crowley treated men in the same way he treated women. Mr Bateman stated he was not aware of the Club having had a sexual harassment policy although he recalled there was a Club policy handbook, he could not really remember. His evidence was that he did not receive any training as a Manager to identify sexual harassment in the workplace. He could not answer whether he knew what relevant training Mr Crowley had had while employed at the Club.

64 Mr Bateman observed that Mr Crowley ‘would go and put his arm around female staff. …. It was accepted behaviour’. He did not report the behaviour because of this ‘acceptance’ – ‘women just laughed and kept on going’…they’d say ‘go away Bob’. He received no complaints about it, bar one. The one complaint he did receive was from Mrs Bateman herself one night. He recalled that Mrs Bateman spoke to him about ‘Bob’s being overpowering’ and putting ‘his arm around her’. Mr Bateman spoke to Mr Crowley about it telling him to do his work and leave her (Mrs Bateman) alone. No further follow up was carried out. In his experience as a Manager at the Club Mr Bateman did not recall any other sexual harassment complaints. Mr Bateman did not consider it his job ‘to watch what (Mr Crowley) was or was not doing’.

Training of Staff

65 In terms of her own training at the Club, the complainant agreed that she had been given ‘verbal supervision’ concerning specific operational duties, i.e. generally how to do the work, but not in relation to the Club’s operational policies or her obligations under the law.

66 On 21.04.1999 the complainant signed the standard ‘Employee Agreement’ which read:

I hereby certify that I have read and fully understand the contents of the Richmond Club Limited Employee’s Handbook and agree to abide by all the conditions of employment outlined herein.

67 On 01.12.1994 and 21.04.1999 Mr Crowley also signed the standard ‘Employee Agreement’ document.

68 Asked whether Mr Crowley had received adequate training to be a supervisor, Ms Hawkins replied ‘he had been doing supervisor work at the Club prior to me [being there]’. Ms Hawkins could not recall if there had been any records re Mr Crowley’s training at the Club. Ms Hawkins recalled that Mr Crowley ‘did a Total Quality Management Course’ (‘TQM’) while at the Club and that he would have had training at some point in the responsible provision of alcohol and gaming services. She was not sure whether Mr Crowley had done any supervisory training course and did not know what such a course entailed. The TQM concerned the obtaining of data, report making, face-value judgements, systems and management improvement. Ms Hawkins explained she did not appraise staff because ‘the Club commissioned a company to do staff appraisal’.

69 Ms Hawkins stated she personally had training in recruitment selection, report writing, psychology, ‘train the trainer’, responsible alcohol compliance, business records and accounting. Asked about discrimination training specifically, Ms Hawkins stated this had been included but it really ‘only covered legislative side of it, not in depth’.

70 There had been an Employee Handbook in operation at the Club before Ms Hawkins commenced employment there. Ms Hawkins stated she herself had read the Employee Handbook from cover to cover and had signed an acknowledgement that she had done so and understood its subject matter. The Employee Handbook was revised while Ms Hawkins was Human Resources Manager. Ms Hawkins recalled supplying information in the preparation of the revised version; she considered the revision necessary in order to protect the Club and bring its policies ‘for example concerning occupational health and safety and the responsible service of alcohol and gaming products’ into line with current legislation. Ms Hawkins stated she was unable to say whether she knew there had been changes to the Anti-Discrimination Act during her time as Human Resources/Personnel Manager at the Club.

71 In relation to complaints Ms Hawkins stated the Employee Handbook ‘set out the process for employees with complaints: they were to go first to their supervisor and if that was not satisfactory they could then go to’ her (as the Human Resources Manager). Ms Hawkins advised that staff would sometimes ‘bypass that process and go to the Operations Manager, depending on who was available’.

72 Ms Hawkins’ understanding of the Operations Manual was that it set out employees’ duties and the policies and procedures to be followed in the Club. She ‘did not handle the Club’s Operations Manual matters’.

73 In her role as Training Manager while at the Club Ms Brown was responsible for inducting new employees. This occurred in group situations and generally took about three to four hours. Ms Brown’s evidence was that the Club’s major policies were discussed, including its sexual harassment policy. Ms Brown stated she was familiar with the Employee Handbook. She doubted she had inducted Mr Crowley on the Club’s sexual harassment policy as he had been employed longer than she had. Ms Brown recalled that the Employee Handbook was renewed at some point in time but could not recall if she was Training Manager at that time. She also recalled the Club had an Operations Manual, or at least that it was being developed while she was Training Manager - in any case she ‘never read it from front to back’. She stated that the ‘Operations Policy’ had not been explained to her, but she recalled receiving complaints while she had been a supervisor, about ‘minor things’, and had understood that if a problem was beyond her responsibility it would be reported to a person ‘higher along the Club’s structure’.

74 As Training Manager Ms Brown considered her principal duty had been to provide training to staff as needed, inducting staff specifically and conducting other or extra training as necessary. Her work sometimes involved a small human resources/recruitment component as well. She reported to the Operations Manager (Mr Anzelark), who was ‘responsible for everything that happened on the floor’.

75 Also attached to one of Mr Adams’ statements was a copy of parts of the Club’s Operations Manual of 1998. This included from pp. 1 to 59 the current Employee Handbook and a further extract from the Manual of 32 pages covering the Club’s Rules and By Laws, Judiciary, Dress Standards, Managers Code of Conduct, Directors Code of Conduct and Guidelines and eight Club policies.

76 The Handbook/Manual provides a list of Board Members as at 21 October 1998 and a list of the Club’s Management. ‘Management’ consisted of eight positions/people (including Mr Adams, Mr Anzelark, Ms Hawkins, Ms Goodier (Mrs Bateman), Mr Bateman and Ms Brown) and ‘Duty Managers/Supervisors consisted of five positions/people (one of whom is Mr Crowley).

77 The Discrimination and Harassment Policy in the Employee Handbook is in exactly the same terms as the Discrimination and Harassment Policy in the Operations Manual of 1998. The policy is found at Parts 10 and 11of the Employee Handbook (pp 41-43). It sets out descriptions of discrimination and sexual harassment, their unlawfulness and the Club’s prohibition of such conduct and the principles guiding the Club’s approach and procedure in the event of a ‘complaint’. In its section on Harassment specifically it is stated that an employee should first express their concern to the person causing the harassment and then report the matter to the ‘Personnel Manager or the Operations Manager should the Personnel Manager not be available’ (p. 42). In the document specifically titled ‘Policy: Discrimination and Harassment’ it states that if a staff member has a ‘grievance or complaint’, the staff member is ‘encouraged to discuss the matter with any of the following people: the General Manager, Operations Manager, Personnel Manager or relevant section Managers.’ (p.43).

78 In the current version of the Handbook in a different Part, there is also a general grievance section (8.6 at p. 35) entitled ‘Staff Relations, Grievance Procedure’. It states that if there is a grievance between employees and the issue cannot be resolved amongst themselves, ‘consult your immediate supervisor or Duty Supervisor for advice. If the matter has not been resolved within 24hrs refer the matter to the Operations Manager who will arrange a meeting with the employee in private and the issue will be addressed in a manner that is in the best interests of the Club and the employees’.

79 According to Mr Adams whole copies of the Club’s Operating Manual were not issued to employees but extracts were and when the Manual was updated, staff were informed by Departmental managers who had been appropriately trained in the matters concerned.

80 The Club, which had previously been known as the ‘Richmond Ex-Servicemen’s Club’, had had an ‘Employee Handbook’ in place, according to Mr Adams, from about 1988. A poor photocopy of an early edition of the Handbook from that time was also attached to one of Mr Adams’ written statements. It consisted of 39 pages only. The Club’s practice in relation to the Employee Handbook was to issue every new member of staff with one. Staff were required to sign the acknowledgement that they understand the policies described in the Employee Handbook before they commence their first shift. In evidence were copies of two such forms signed by Mr Crowley, one of 1994 and the other of 1999 and one signed by the complainant in 1999.

81 The Club conducted an employee ‘induction program’ which included outlines of the structure of the Club, its lines of responsibility and its policies and procedures. The induction process had been in place about twelve to fifteen years. In the earlier days training was conducted by the Club’s Deputy Manager; in more recent years the Club’s Training Manager conducted the program.

82 Mr Adams’ evidence as far as monitoring staff regarding the Club’s procedures included: new employees are given three months probation and are subject to supervisor reports on a weekly basis. Mr Adams advised that employee files are updated on an ongoing basis and ‘If a staff member did not receive or understand the Employee Handbook that would be with their records’. As far as ‘ongoing maintenance’ of ensuring staff understand how to use the complaints procedure, Mr Adams referred to the fact that Departmental staff meetings ‘are held’ and that ‘two combined staff meetings are held per year’.

83 Mr Adams believed both the complainant and Mr Crowley would have received the relevant training. Mr Adams also believed that Mr Crowley as a relieving supervisor would have seen a copy of the relevant job description for that role. A copy of the relevant job description was provided to the Tribunal. It was undated. Under the heading ‘Capabilities’ on the ‘description’ was the requirement of ‘Knowledge’. Mr Adams agreed that such ‘Knowledge’ did not include in its list knowledge of the Anti-Discrimination Act. Mr Adams believed Mr Crowley would have acquired knowledge of the Act and his consequent rights and responsibilities through the relevant ‘Train the Trainer’ course he would have attended as a supervisor.

84 Mr Adams stated that not all training provided to staff was provided on-site and by Club management. Some training occurred off-site or at specialised courses or seminars or conferences. Club Managers met regularly to discuss Club issues including any relevant changes in legislation. Staff were also advised of relevant updates or developments via notices placed on noticeboards, such notices included the regular Clubs NSW Newsletter.

85 Annexures Q and R to Mr Adams’ Statement (of 23.07.2002) were Notices to Staff dated 12.04.2000 and 10.10.2001 (after the harassment incidents) stated ‘To further inform our employees, departmental training of all sections of the Club will be conducted outlining “Policy 10: Discrimination and Harassment” as contained in our Operational Handbook (sic)’.

Submissions

Submissions on behalf of Complainant

86 It was submitted on behalf of the complainant that the respondent’s liability was two fold – (1) vicarious liability pursuant to s. 53 of the Act in relation to the sexual harassment of the complainant by Mr Crowley which constituted a breach of s. 22B(2) of the Act and (2) direct liability in relation to sex discrimination as the result of the respondent’s breach of s. 25(2) of the Act.

87 In relation to the interpretation and application of anti-discrimination statutes, the Tribunal was referred to the decision of Waters v Public Transport Corporation (1991) 173 CLR 349 which states that such are to be construed to give preference to their statutory purpose and that purpose is to render unlawful certain kinds of discrimination between persons of different status.

88 As far as the first basis of liability was concerned, Mr Azzi (for the complainant) submitted that the respondent needed to prove that it did not authorise Mr Crowley’s offending behaviour. He submitted that on the facts the Club had authorised Mr Crowley’s behaviour by its inactivity and its ineffective implementation of its discrimination and sexual harassment policy. The Tribunal was referred to the decisions of: Shellharbour Golf Club & Wheel (1999) NSW SC 224 and D. & Berkeley Challenge (2001) NSWADT 92 as to the appropriate interpretation of the term ‘authorise’ under the Act.

89 Mr Azzi submitted that the fact the Club had a discrimination/sexual harassment policy in place was not enough to defend a complaint and avoid liability. As far as the Club’s management of the complainant’s report/complaint was concerned, Mr Azzi, although focussing a little on querying the Club’s compliance with the confidentiality feature of the complaint procedure, generally submitted that the Club had acted with ‘utmost impeccability once the complaint had been made’. The submission re liability was that what was important was what occurred before the report/complaint was made. The quick and decisive action after the making of the report does not excuse the Club’s prior ‘inaction to enforce its own policy to prevent this type of thing occurring’ and was not sufficient to absolve it of any liability. The respondent’s breach was in ‘its failure to protect its employees, its failure to shield its employees…’…the fact the respondent employer had a discrimination/harassment policy in place was not sufficient to avoid liability (D. & Berkeley Challenge referred to again).

90 Mr Azzi submitted that the respondent discriminated against the complainant in it accepting Mr Crowley ‘going around touching and harassing female staff’. He submitted that workers have a lawful right to a discrimination and harassment-free workplace and the protection of this right lies in the hands of employers. Evidence highlighted in support of this submission included: Beverage Manager Mr Bateman ‘tolerated’ Mr Crowley’s behaviour; Mr Bateman did nothing about it in relation to the female staff other than his wife; Mr Bateman did not tell Mr Crowley his behaviour was inappropriate and unacceptable when he saw Mr Crowley conducting himself in his usual way with other female staff; and Mr Bateman thought such behaviour was acceptable. Mr Azzi submitted that in the circumstances Mr Bateman should have taken action and that Mr Bateman did nothing because he did not know or recognise that Mr Crowley’s behaviour was improper.

91 Mr Azzi submitted that the respondent authorised Mr Crowley’s conduct ‘both explicitly and implicitly’. He submitted the Club knew Mr Crowley ‘was a bit of a lech, he was different, he was a risk, in any enlightened legally-aware employer the risk would have been minimised whereas the respondent considered it acceptable to leave it to the female staff to tell the man to go away…it had a ‘livewire’ on its hands and did nothing….it did not protect its staff from Mr Crowley’s unwanted and unwelcome sexual behaviour and interference….such behaviour was known amongst the Club’s management level staff – everyone was left to tell Bob to go away, to handle him on their own, to fend for themselves…’.

92 In terms of the assertion that the Club had knowledge of Mr Crowley’s behaviour, Mr Azzi highlighted the uncontradicted evidence that: Training Manager Ms Brown had personal experience of such behaviour; Functions Manager Mrs Bateman had personal experience of such behaviour; Beverage Manager Mr Bateman had been told by his wife on one occasion of Mr Crowley’s interference with her and she had specifically asked Mr Bateman to speak to Mr Crowley about it; and Ms Brown and Mr Bateman had both observed and were aware of Mr Crowley’s behaviour towards the Club’s female staff generally.

93 Mr Azzi submitted that the evidence establishes that Mr Crowley was not just being flirtatious; his behaviour included his physical assertion and imposition on female staff, invading their personal and physical space. Such behaviour in Mr Azzi’s submission was ‘frequently’ unwelcome. On the evidence Mr Crowley had been told as much by at least three female staff members: Managers Ms Brown and Ms Bateman and the complainant.

94 In relation to the implementation of the Club’s sexual harassment/discrimination policy, Mr Azzi submitted that the acknowledgement form from the Employee Handbook provided to and signed by employees is an attestation by the employee of having read the Employee Handbook, not to having attended or having received any sexual harassment training. In Mr Azzi’s submission the evidence established that relevant staff education and training was ‘merely cursory’ and this was an insufficient approach on the part of the respondent. He submitted the respondents did not establish that Mr Crowley ever received any training on unlawful sexual harassment adding also in this regard that former Manager Mr Bateman had given evidence that he himself had not received such training. Mr Azzi submitted that the Notice that was distributed to all employees (Annexure Q to Mr Adams statement) which stipulated that training would take place from that date on amounts to an admission there had been no training previously. Mr Azzi submitted that these facts contributed to the conclusion that the respondent had not been implementing its policy at the relevant time.

95 Mr Azzi submitted the evidence also supported the conclusion that the respondent did not ‘enforce’ its sexual harassment policy at the relevant time, asking ‘where was the appraisal as to its operation?’. This conclusion was supported by the respondent’s evidence that it did not have in place any formal system of staff appraisal, Mr Azzi submitted there was therefore no opportunity for open dialogue between staff and supervisors to discuss jobs, the workplace and aspects relevant to them.

96 Mr Azzi also submitted that the respondent’s actions in failing to protect the complainant from Mr Crowley formed part of the complainant’s terms and conditions of employment and that such term/condition was different from, something less, than what was offered to male employees. It was in this regard that it was submitted the respondent breached s. 25(2) of the Act. [This submission was not developed in detail by Mr Azzi.]

97 It was also submitted on the complainant’s behalf that she had suffered relevantly as the result of the harassment and that she should be compensated for that suffering under the general damages provision of s. 113 (1) of the Act. Mr Azzi submitted that the evidence established that the complainant had experienced indignity, embarrassment, humiliation, depression and degradation; the incidents had impacted upon her physically in that she felt uncomfortable in non-hands-free situations and she had not been able to undertake the usual tasks performed by the functions of/serve as a bar maid; and the incidents had impacted upon her mentally in that her personal well-being and her family relations had suffered and been strained by her experience.

98 The complainant’s submission was that the psychologist’s report referred only to damage to the complainant resulting from the sexual harassment incident. No compensation was sought for loss of wages.

Submissions on behalf of the Respondent

99 Mr Russell (for the respondent) confirmed that the respondent accepted the incident #3 allegation against Mr Crowley and agreed that it constituted the sexual harassment of the complainant by a fellow employee. The respondent also accepted that incidents #1 and #2 occurred as alleged. In the absence of a complaint against Mr Crowley personally, the only respondent to the complaint was the Club, and in its submission its liability could only be entertained under s. 53(1) concerning vicarious liability.

100 In relation to vicarious liability under s. 53 requiring the employer to ‘authorise’ the unlawful action of the employee, Mr Russell submitted there was ‘not a jot’ of evidence that would support a finding of express authorisation by the respondent of Mr Crowley to sexually harass other workers. In relation to the allegation of implied authorisation on the part of the employer by its authorising the act of the harasser by being aware of the behaviour or complaint of the behaviour and either turning a blind eye to the behaviour or responding inadequately, Mr Russell referred to the decision of Shellharbour as the leading relevant judgement. He sought to distinguish the circumstances of that case from those in the present case submitting there was no ‘implied authorisation’ by the respondent Club in this case whereas such had been found to have occurred in the Shellharbour Club.

101 In this regard Mr Russell submitted that had the Club been told by the complainant of Mr Crowley’s conduct and then stood by and did nothing ‘undoubtedly the Club would have been found liable for the third incident’. Mr Russell noted that the facts were that the complainant dealt with the earlier two incidents #1 and #2 herself and that Ms Brown dealt with her Bob Crowley incident herself and that Mrs Bateman had her husband deal with her Bob Crowley incident and, rightly or wrongly, these prior incidents were ‘never reported to the Club’. He noted further that Mr Bateman did not perceive Bob Crowley’s behaviour towards female staff that he was aware of, not just in relation to his wife, as something he needed to report. Mr Russell submitted there was nothing of the kind present in this case of the kind present in the Shellharbour case so as establish ‘implied authorisation’.

102 Mr Russell submitted that in Shellharbour, the employer failed to prove it did not authorise, whereas the Richmond Club Limited, he submitted, had proved it neither expressly nor implicitly authorised the Mr Crowley’s actions. He submitted that the facts relating to the respective employers were ‘far removed’ from each other.

103 The respondent’s submission was that much depended on the question of ‘the respondent’s ‘prior knowledge’. Focussing on the evidence in this regard, Mr Russell submitted that it establishes that the Club had received no prior complaints about Mr Crowley’s workplace behaviour and that the other incidents of Mr Crowley’s behaviour towards women was ‘different in kind and degree’ to what he had subjected the complainant. Mr Russell also submitted that the evidence suggested Mr Crowley’s specific actions taken towards the complainant could be characterised as sexual assault, and that his earlier behaviour or action taken towards other women could be characterised as flirtation.

104 Mr Russell sought to draw a distinction of significance between what he described as behaviour on a ‘low level sexual basis’ or flirtation that was not reported and the sexual assault/harassment to which the complainant was subjected. In relation to the evidence about the low level behaviour included in Mr Bateman’s evidence, Mr Russell suggested it was ‘useful background for the Club’s knowledge’, submitting that there was nothing in that evidence from which to conclude the Club had or should have had notice of Mr Crowley sexually harassing the complainant and that it was not possible to say one sort of behaviour (flirtation) necessarily leads to the other (sexual harassment).

105 In relation to the conflicting evidence between the complainant and the respondent’s witnesses, Ms Hawkins and Ms Brown, as to prior knowledge of Mr Crowley’s behaviour, Mr Russell stated the respondent’s witnesses’ evidence should be accepted as ‘they had both left the Club, neither had any position or allegiance to protect or axe to grind’. Both categorically denied making the statements attributed to them by the complainant. He submitted their versions of the facts should be preferred to those of the complainant. He submitted further that if the complainant’s evidence on these matters was preferred such that Ms Hawkins and Ms Brown both said something along the lines alleged by the complainant, that was not proof that the Club had knowledge of the Mr Crowley’s behaviour.

106 In relation to Ms Brown’s evidence denying making the statement as alleged by the complainant and that she was either not present or most unlikely to have been present at the time asserted by the complainant, it was submitted that even if she was present as alleged she denied making the statement.

107 Mr Russell submitted that each of the following matters supported the Club’s submission that there was no express or implied authorisation of Mr Crowley’s behaviour by the Club as required for liability under the Act: the evidence of Mr Adams, Ms Hawkins and Ms Brown that they had ‘no knowledge of any incident by Mr Crowley’ in that none of these three had received any complaint about Mr Crowley’s behaviour including any complaint from the complainant in relation to incidents #1 and #2 was unchallenged; there were no prior complaints of sexual harassment recorded or recalled in the Club’s experience; neither Mr nor Mrs Bateman ‘perceived or reported’ Mr Crowley’s behaviour; the Club had no knowledge or awareness of Mr Crowley’s propensity to sexually harass; the Club had in place an adequate sexual harassment policy, an induction programme for new employees, an Employee Handbook acknowledged to have been read and understood by Mr Crowley and the complainant, an Operations Manual which included relevant procedures; the Club sought advice immediately from the relevant industry body after the complaint was made; and the Club acted properly once they were aware of Mr Crowley’s behaviour towards the complainant.

108 In addition, Mr Russell submitted, there were a number of matters occurring after the complaint that go to establishing that the Club did not implicitly authorise Mr Crowley’s behaviour: the contemporaneous note made by Dale Hunt (Night Manager) in the Manager’s Book at the time of the complainant’s oral report of Mr Crowley, illustrating Mr Hunt’s conscientiousness and recognition of the issue as important to management; the Club promptly began investigating incidents #1 and #2, seeking out possible independent verification; the Club promptly conducted meetings with the complainant and Mr Crowley with appropriate management and union representation present; after investigation the decision to dismiss Mr Crowley was made promptly and decisively; the Club arranged counselling for the complainant; the Club’s General Manger Mr Adams personally attended the complainant, giving her support and apologising and letting her know the Club does not condone such behaviour; and the Club subsequently sought to reinforce its concern re sexual harassment and posted notices confirming the Club’s policy on the matter. He submitted that the Club had dealt with the delicate matter quickly and promptly.

109 Mr Russell referred the Tribunal to the decision of Judge v Cripps & Cripps Pty Ltd (1999) NSWADT 11 (specifically paragraphs 34 to 37) submitting it provided an example of a matter where the employer had satisfied the onus it had not expressly or implicitly authorised the employee’s behaviour and therefore avoided liability. In that case, the employer, after receiving the report/complaint took action clearly on the basis that he did not authorise the conduct alleged (even though that action was not very ‘stern’) and even though there had been no relevant training or policy in place for staff.

110 In relation to s. 53(3) of the Act, Mr Russell submitted that the size and nature of the Club were significant, its staff numbers were high, there was a significant mix of sexes and significant hierarchies within the structure of the Club. ‘As far as good industrial relations go’ it was sufficient and reasonable for the Club to have: a relevant policy; staff induction training; an Employee Handbook; and a Managers’ Operations Manual. The evidence establishes in Mr Russell’s submission that hundreds of staff had worked in harmony for decades without relevant incident and in this regard the Club had taken all reasonable steps.

111 Mr Russell submitted, in relation to liability being found and any possible damages order, that the medical evidence of Dr Robertson went mostly to the assault incident and did not prove any damage was caused by the sexual harassment. In relation to the evidence of psychologist Ms Hoser, Mr Russell pointed to several factual inaccuracies in her written report and noted that it says nothing about how the complainant’s problems resulted from the assault incident because [Ms Hoser] knew nothing of it.

112 Mr Russell submitted it was for the complainant to establish she suffered psychologically as a result of the sexual harassment and in his submission the complainant has not discharged such onus. If it is found she has discharged the onus Mr Russell’s submission is that such damage was only a very small part the result of the sexual harassment and therefore only a very small amount would be payable in damages.

Findings of Fact and Reasoning

1. Vicarious Liability

113 As the principal allegation against the respondent is that it is vicariously liable for the sexual harassment of the complainant by Mr Crowley, the Tribunal must first find that such harassment in fact occurred.

114 The respondent did not challenge the complainant’s evidence as to Mr Crowley’s conduct towards her. The respondent’s evidence also included evidence from Mr Adams and Ms Hawkins as to their witnessing Mr Crowley’s admission of the harassment conduct. It was recognised by the respondent that Mr Crowley’s conduct constituted sexual harassment within the terms of s. 22A and s. 22B of the Act. The Tribunal agrees and finds Mr Crowley sexually harassed the complainant as alleged.

115 Mr Crowley’s position at the Club was as a Relief Duty Manager/Supervisor. All incidents between the complainant and Mr Crowley occurred on the Club’s premises. At all relevant times both Mr Crowley and the complainant were carrying out activities concerning their workplace responsibilities. This was not in dispute between the parties.

116 Under s.53 (1) of the Act, the provision under which the respondent can be held vicariously liable, and following the Shellharbour decision, what Mr Crowley did is deemed to have also been done by the respondent, unless the conduct was unauthorised by the respondent, either expressly or impliedly.

117 A number of factual matters must be determined in order to find whether such lack of authorisation existed. Relevant to that question is whether or not the Club had prior knowledge of Mr Crowley’s conduct or his propensity for such and whether or not it took any action sufficient to establish its lack of authorisation. If the Tribunal finds no such lack of authorisation by the respondent then the Tribunal must also determine whether or not the Club took all reasonable steps to prevent Mr Crowley from contravening the Act (under s.53 (3)).

Club Knowledge of Mr Crowley’s Conduct

118 (A) The complainant alleged that at one of the meetings that occurred on the day after the third incident and her reporting of Mr Crowley, Ms Hawkins stated, in relation to the allegations against Mr Crowley, ‘He’ll probably deny it’ and that they ‘knew things were happening but no one would complain’. Ms Hawkins denied making the statements.

119 The evidence was unclear as to which of at least two meetings between Ms Hawkins and the complainant this alleged statement was made. In response to a Club query in reply to the complaint the complainant stated in writing that Ms Hawkins made the comment in the presence of both the complainant and Mr Anzelark while they were all in Ms Hawkins’ office. Unfortunately Mr Anzelark was not called upon to provide evidence to the Tribunal, despite being a senior Manager at the Club and involved in the Club’s handling of the complainant’s reporting of Mr Crowley and being an alleged witness to such comment. In the absence of his evidence there remain two conflicting assertions, which can only be determined on the credibility of Ms Hawkins and the complainant and any other relevant evidence. The complainant’s account of Mr Crowley’s inappropriate behaviour on three occasions was admitted as true by Mr Crowley and was not challenged by the respondent in any way. Where independent evidence was obtained in order to verify her version of events, such as incident #2, her version was confirmed as accurate.

120 The complainant had a long history of work in the industry without incident or trouble of any kind let alone assault or harassment. She was a very experienced club and hotel worker. She was not given or disposed to creating trouble. As a witness the Tribunal considers that the complainant plainly stated what she recalled and what she did not recall; she did not exaggerate or speculate; much of her evidence was not refuted or contradicted at all and was borne out when investigated. According to the documentation the complainant first asserted in about September 2000 that Ms Hawkins made the comments, some six months or so after the third incident. The Tribunal considers that the matter was intensely personal and significant for the complainant and her memory of it was likely to be reasonably acute for these very reasons.

121 Ms Hawkins first denial of making the comments was in her written statement dated 23 July 2002, more than two years after the third incident. According to her statement Ms Hawkins could recall making only one comment to the complainant on the relevant day – that she should put her complaint in writing. It is noted that at the relevant time of the third incident Ms Hawkins was also preparing to depart very soon from the Club’s employment, she had less than three weeks before she was leaving the Club. It is not unreasonable to conclude she may have been extremely busy with many matters during that period. Given the passage of time since the conversation, the unlikelihood of Ms Hawkins making ‘only one comment’ to the complainant at the time and Ms Hawkins’ imminent departure from the Club, the Tribunal’ considers Ms Hawkins’ memory of the occasion to be less acute and reliable than the complainant’s.

122 The complainant’s evidence is preferred to that of Ms Hawkins on this issue.

123 (B) The complainant alleged that there was an occasion on which Ms Brown had stated to the complainant in relation to Mr Crowley words to the effect that Mr Crowley had done things to her before and that she was sorry that she had not done something about it and that it had happened to the complainant. In her written statement Ms Brown denied making the comments ‘as alleged’ (that is that the comments were made on 17.03.2000). In her oral evidence Ms Brown stated that it was ‘possible’ that while employed at the Club she could have spoken about Mr Crowley with the complainant but she could not recall for certain and that after leaving the Club’s employment and on the occasions of visiting the Club socially, she did not remember specifically seeing or speaking with the complainant, but would have said hello and greeted her if she had.

124 The principal basis for Ms Brown’s denials was that she was not working at the Club at the time the statements were alleged to have been made. The Club respondent also relies on these denials as part of its defence it had no prior knowledge of Mr Crowley’s conduct towards female staff. The respondent’s focus concerned the date on which it understood the complainant alleged the statements were made. The source of this focus is the interpretation of some of the written correspondence passing between the ADB and Mr Adams (see Referral Report pp. 28 & 29). The respondent’s interpretation that the complainant asserted the day was 17.03.2000 is understandable on the material, but in the Tribunal’s view the words relied upon do not necessarily convey the meaning adopted by the respondent.

125 The Tribunal notes that in her oral evidence, when specifically asked about when the alleged statements were made by Ms Brown, the complainant made no assertions as to a specific day or time, she could only approximate that the day was one that followed the third incident and that the place was in the Club’s reception area. In no part of her evidence did she assert Ms Brown was employed by the Club at the relevant time.

126 In the Tribunal’s view it is clear enough from the evidence that the statements were alleged to have been made by Ms Brown after Mr Crowley’s departure from the Club (17.03.2000) which means it was clearly at a time after Ms Brown had departed from the Club’s employment (29.02.2000). Ms Brown herself gave evidence she was at the Club for social purposes fairly shortly after this. There was evidence that the complainant was at work for a number of days after the third incident. In the Tribunal’s view the opportunity for the conversation between Ms Brown and the complainant occurred at some time on one or other of these days.

127 The Tribunal finds Ms Brown’s assertion that because she was not employed at the relevant time she did not make the alleged statements to be unpersuasive, given particularly her evidence that she visited the Club several times after her departure from employment for social purposes and on those occasions would greet and speak with former fellow staff, given also that she could not recall whether or not she had ever spoken to the complainant about her own experience with Mr Crowley but considered it ‘possible’ and given also that Ms Brown gave evidence that she herself had in fact experienced Mr Crowley’s inappropriate conduct earlier in her Club employment and so the alleged statement as to her experience of Mr Crowley’s misconduct was in fact true.

128 The Tribunal wonders how likely it would be for the complainant to be able to make the assertion as to Ms Brown’s Crowley experience unless she had heard it from Ms Brown herself. No other explanation was suggested as to how or why the complainant would have had independent knowledge of Ms Brown’s experience. The fact the substance of that asserted comment was true lends support to the accuracy of the complainant’s evidence.

129 Balancing the evidence adduced, it is the Tribunal’s view it is more likely than not that the statements were made by Ms Brown to the complainant at some point in time soon after the third incident of harassment as alleged by the complainant.

130 (C) The Tribunal finds that two other of the Club’s Managers, who were supervisors of Mr Crowley, Mr Greg and Mrs Sandra Bateman, had personal knowledge and experience of Mr Crowley’s conduct towards female staff during their periods of employment with the Club. Mr Bateman considered Mr Crowley’s conduct to be ‘accepted behaviour’. Mr Bateman took no action of any kind in relation to Mr Crowley’s conduct because of this perceived ‘acceptance’, except on one occasion - that occasion was when he had received a complaint from his wife, Sandra Bateman - Mr Crowley had conducted himself towards Mrs Bateman in an unwelcome and inappropriate manner such that Mrs Bateman asked her husband to speak to Mr Crowley directly. No detail was provided in evidence as to the date or timing of this specific incident. Mrs Bateman worked at the Club from November 1989 until June 1999. Mr Bateman’s period of employment with the Club is understood to have included at least the two years from June/July 1997 until May/June 1999. The evidence was clear that both the Batemans held Manager positions in the months and years prior to the incidents of harassment of the complainant by Mr Crowley (see Club Operations Manual 1998). The Batemans’ evidence was not challenged by the respondent in any detail.

131 (D) Mr Russell put considerable score in his submissions to support the assertion the Club had no knowledge of Mr Crowley’s conduct prior to the complainant’s report on the fact that the Club had no previous records of any allegations against Mr Crowley. Formal reports there may not have been and accordingly the most senior level of management may have had no idea of Mr Crowley’s usual conduct around the Club towards female staff (see paras. 53, 59 and 62 above) and therefore his potential or propensity for unlawful conduct before he was eventually reported. There was certainly no evidence suggesting that the General Manager of the Club, Mr Adams, had any prior knowledge of Mr Crowley’s usual conduct towards female staff as either the result of staff or managerial reporting, or personal observation.

132 Mr Russell submitted that had the Richmond Club ‘been told by’ the complainant of Mr Crowley’s conduct and then stood by and did nothing ‘undoubtedly the Club would have been found liable for the third incident’. It is this Tribunal’s view that formal or informal reporting is not the only way by which the Club might have ‘been told’ or have gained or be said to have had the relevant knowledge. In Shellharbour one manager had prior personal experience and knowledge of inappropriate behaviour and had also been told of such by a staff member before the unlawful conduct occurred in that matter.

133 In this matter, without doubt in the Tribunal’s view, there is sufficient evidence to establish that there was a body of knowledge amongst staff and middle levels of management of Mr Crowley’s ‘usual conduct’ in relation to female staff at the Club. It is acknowledged that Mr Crowley’s usual conduct towards female staff as observed by Managers Brown and Mr and Mrs Bateman may have constituted lawful flirtation and not have been conduct transgressing the line over which flirtation becomes unlawful harassment. On the other hand however the same conduct is capable of transgressing that point and being conduct capable of contravening the Act or developing into conduct capable of contravening the Act. It is the Tribunal’s view that this prior knowledge on the part of these three Managers, being three of the Club’s eight members of management as at 1998, of Mr Crowley’s usual conduct combined with their knowledge of their own personally experienced or informally reported inappropriate behaviour on Mr Crowley’s part can properly be considered to be the knowledge of the Club itself. The Club did not need to be expressly ‘told of’ Mr Crowley’s conduct, because it already had such knowledge. The facts that all the earlier incidents and personal experiences were not formally reported and were different in degree rather than nature, do not negate the existence of such prior knowledge and awareness in the Club.

134 The Tribunal concludes from these findings that the Club had relevant prior knowledge of Mr Crowley’s actual, and potential for, inappropriate conduct towards female staff.

Lack of Authorisation

135 As s. 53(1) was construed by Studdert J in Shellharbour, ‘once it was established that the misconduct occurred in the workplace environment and the offender was ostensibly at the time acting in the discharge of responsibilities as agent for his principal, what he did was deemed to be done by his principal, unless the conduct was unauthorised by the principal either expressly or by implication’ (para. 33).

136 By s. 109 of the Act the respondent bears the onus to satisfy the Tribunal that it had not authorised Mr Crowley to do and say what he did, either expressly or by implication.

137 Studdert, J, bearing in mind the nature of the Act, considered that the word "authorise" should be given a broad meaning. Accordingly, he decided that ‘for the purposes of s 53 the word "authorise" embraces "sanction, approve, countenance and permit". Permission may be inferred from inactivity and indifference where the person sought to be made liable is aware that some particular behaviour may occur.’ (see Shellharbour para. 58).

138 Although concerning considerably different factual circumstances, it is noted that the Tribunal in Russell v Commissioner of Police, New South Wales Police Force & ors [2001] NSWADT 32 stated that the purpose of s. 53 of the Act is ‘to bring home to persons in a position of employer/employee relationships the need to manage and control actions of its labour force’ (para 163) and in Hudson -v- Strathfield Golf Club [2000] NSWADT 88, where the employer Club through its relevant manager (who had become aware of the harassment issue) ‘failed to take positive steps’ which ‘implied to’ the alleged or potential harasser that his ‘action was condoned’.

139 The Tribunal recognises the Club’s efforts in relation to developing and distributing policies concerning sexual harassment and discrimination. The Tribunal understands and is somewhat sympathetic in relation to the Club’s evidence that it is committed to its policies and ‘would not authorise’ or condone any breach of such policies. In the Tribunal’s view, however, this use of the term ‘authorise’ is in its narrow form. The Tribunal agrees with the respondent that the evidence establishes that it did not authorise Mr Crowley’s conduct expressly or directly.

140 In relation to the respondent’s submission that its quick and efficient action after the report/complaint had been made on 16.03.200 should be regarded as proof, after Mr Crowley’s conduct, that the respondent did not authorise such misconduct, Studdert, J’s decision might again be referred to: what the respondent did after the event was to be weighed by the Tribunal in deciding whether the onus of proof had been discharged and for the purposes of s. 53(1), the respondent must shoulder the added requirement to prove that, before the misconduct of Mr Crowley, it did not give authority either expressly or by implication.

141 The Tribunal has found that Club Managers Mr and Mrs Bateman and Ms Brown had prior knowledge of inappropriate conduct in the workplace by Mr Crowley and Mr Crowley’s ‘usual conduct’ towards female staff generally. The Tribunal finds that each of these three Managers failed to:

(2) implement any appropriate monitoring strategy to ascertain whether staff in fact felt humiliated, intimidated or offended by Mr Crowley's behaviour;

(3) take any appropriate action in relation to Mr Crowley’s conduct as required, such as reminding him of the Club’s policy and the Act, warning Mr Crowley and/or monitoring his workplace conduct.

142 The Tribunal considers that these failures on the part of these Managers to have in effect allowed and permitted Mr Crowley to continue conducting himself as ‘usual’ - physically interfering with female staff to a greater or lesser degree. The inaction by these three senior Managers gave Mr Crowley a virtual green light to continue in his usual way. Indeed, Mrs Bateman expressly stated Mr Crowley's usual conduct was 'tolerated'. In the complainant’s case Mr Crowley’s interference was to a greater degree and was sufficient to constitute sexual harassment. By their failings and inactivity these Managers had ‘permitted’ Mr Crowley to continue to conduct himself inappropriately in the workplace. For the purposes of the Act, this inaction in the Tribunal’s view constitutes implicit authorisation. In the Tribunal’s view the respondent has failed to establish that it did not authorise Mr Crowley’s conduct.

143 It is not enough to wait for a complaint before appropriate action needs to be taken by managers/employers. An employer’s obligation to prevent discrimination, harassment and victimisation does not begin at the time that a formal complaint (e.g. a written note from, or documentation provided by, a complainant to an employer, or a written note from, or documentation provided by, an employee or manager witnessing the behaviour) is made. Certainly, if at the time a formal complaint is made, it is the first time that the employer is made aware that potentially discriminatory, harassing or victimising behaviour has occurred, and the employer takes appropriate and immediate action in response including reasonable steps to prevent contravention of the Act, the employer is more likely to have met the requisite statutory standard to avoid vicarious liability. However, if an employer is made aware informally of potentially discriminatory, harassing or victimising behaviour (e.g. observations of staff verbally conveyed to management, management observing relevant behaviour and so on) prior to a formal complaint being made, and the employer takes no action until the formal complaint is made, the fact the employer takes appropriate and commensurate action in response would not be sufficient to avoid its being found vicariously liable.

Did the Club Take All Reasonable Steps?

144 Where liability is found to exist pursuant to s. 53(1), it is necessary to consider s. 53(3) as it offers a respondent a defence from liability. That is, where an employee/agent’s unlawful act is deemed to be done by his or her employer/principal as the conduct was not unauthorised by the principal either expressly or by implication, the principal may still avoid liability by proving it had taken all reasonable steps to prevent the employee/agent from breaching the Act.

145 The Tribunal notes that there was little express focus placed by the parties on sub-section 53(3) of the Act. The parties’ submissions offered nothing on the inter-relationship between s. 53(1) and s. 53(3) and how the latter should be interpreted and applied in the circumstances.

146 Section 109 of the Act imposes the onus upon the respondent to prove that it took all reasonable steps as required by s. 53(3).

147 Sub-section 53(3) had no relevance in the Shellharbour decisions as it did not exist at the time of the relevant unlawful conduct. However Studdert, J states at para. 65 ‘Section 53 (3) as it now stands introduces an analogous concept to that found in s 106(2) of the Commonwealth Sex-Discrimination Act, 1984. It may be that there is scope for tension between s 53(1) and s 53(3) as the Act now stands, but this is not the occasion to explore that issue.’ .

148 It is also noted that Barret, J observed at para. 35 in NSW Breeding & Racing v Administrative Decisions Tribunal [2001] NSWSC 494 that sub-section 53 (3) ‘introduced what is, in concept, a substantial defence on the part of a principal or employer against whom a case of vicarious responsibility is asserted. The defence is that the principal or employer took all reasonable steps to prevent the agent or employee from contravening the Act. I agree that this significantly altered the complexion of the vicarious responsibility regime.’.

149 The first part of sub-section 53(1) has the effect of deeming an unlawful action of an employee/agent to also be an unlawful action by the employer/principal and thereby attributing vicarious liability to the latter. The second part of sub-section 53(1) provides the employer/principal with a basis for avoiding the deeming of the action, ie the employer/principal must establish that it did not expressly or implicitly authorise the action.

150 By the use of the words ‘Despite sub-section (1)’ at the beginning of sub-section (3), the provision can be interpreted as intended to provide another basis for an employer/principal to avoid having its employee/agent’s action deemed to also be its action. Accordingly if a respondent employer can establish that it has taken all reasonable steps to prevent the harassment, liability for the action of its employee will be avoided.

151 The Tribunal was not referred to any other published Tribunal decisions in which s. 53(3) specifically was considered in any detail.

152 The witnesses to harassment incident #2, Mr Wescombe and Mr Dries, did not take any action as a result of what they witnessed. Mr Wescombe offered to support the complainant should she report Mr Crowley but the complainant declined his offer. Neither Mr Wescombe nor Mr Dries were at supervisor or manager level at the Club.

153 In relation to what steps were taken before the complaint was formally made, the Tribunal acknowledges that Mr Hunt, one of the Duty Managers at the Club to whom (together with another Duty Manager - Ms Colleen Hayman) the complainant first informally reported Mr Crowley, took appropriate action by making a record of the report thereby advising senior management there may be an issue to which the Club needs to be alert. This was despite the complainant stating she did not want the matter taken further. Mr Hunt’s initiative evidenced a responsible approach appropriate for a manager. It is noted that, in contrast with the other more senior Managers, Mr Hunt had the benefit of having had a report made to him. Nonetheless, following that report he acted responsibly and the step he took was appropriate and reasonable.

154 It is acknowledged by the Tribunal that the Club, by its General Manager, sought advice immediately from the relevant industry body after being made aware of the formal report/complaint. The Tribunal finds that the Club acted swiftly and appropriately in its investigation of the complaint and decisively once Mr Crowley’s admissions had been made. The Club considered Mr Crowley’s harassment of the complainant of sufficient severity to warrant instant dismissal. The dismissal evidences a certain commitment to the principle of an harassment-free workplace. The Club itself arranged counselling for the complainant after the complaint and dismissal. It also initiated an Injury Management Plan to assist the complainant in her ‘...timely, safe and durable return to work…’ and a progress review of such plan.

155 In relation to the steps taken by the Club after the complaint had been formally made, the Tribunal finds that the Club did take all the reasonable steps it could to prevent Mr Crowley from again contravening the Act. The complainant did not seriously challenge this fact. In the Tribunal’s view however, as appropriate as the steps taken were, they are not the only relevant steps as they occurred after the subject acts of harassment had already occurred. In the Tribunal’s view it is also, if not primarily, the steps taken before the acts of harassment in order to prevent that harassment that are pivotal as to whether or not, in the circumstances of this complaint, the Club can be found to have acted sufficiently to avoid liability.

156 The Tribunal acknowledges the Club’s express commitment to non–discrimination and its development and adoption of policies and procedures aimed at protecting the relevant resultant rights. The methods of promulgating these policies by the Club, by way of the induction seminar and the requirement staff attest to reading and understanding the Employee Handbook, do constitute the taking of some reasonable steps in its endeavour to meet its responsibilities at law concerning sexual harassment in the workplace.

157 In addition there was the Club’s Operations Manual which was presented as the Club’s principal management document. It was not distributed amongst staff and Managers were provided only with relevant excerpts ‘when appropriate’. The Tribunal was provided with copies of parts of the Manual. It includes relevant codes of conduct for Members of the Club and Club Managers and the Club’s operational policies and procedures. Part of the Manual consists of the Employee Handbook distributed as an extract to all staff upon their joining the Club as employees. The relevant discrimination and harassment policies in the Manual are echoed in the Handbook. As noted the Handbook is distributed to staff and staff are required to attest to having read and understood its contents which include parts on legislation and relevant policies. Departmental staff meetings are held and two combined staff meetings are held per year.

158 As can be seen from paragraphs 76 and 77 above, the reporting of complaints procedure at the relevant time was not perfectly clear for Club workers given the three documentary versions referred to there. There was a lack of consistency there and this was also evident in the witnesses’ evidence before the Tribunal. Although subsequent to the relevant incidents, this lack of consistency was compounded further in a Notice to staff of 10.10.2001 (Annexure R to Mr Adams’ Statement of 23.07.2002) in which it is stated that ‘Any complaint relating to these issues should be reported at the first opportunity to the General Manager or in his absence, his delegated representative …’.

159 Under the ‘Legislation’ part of the Handbook, there is an (a) to (j) list of actions stated to contravene one of the many Acts staff need to be aware of. Acts involving discrimination and harassment are not expressly listed. ‘Anti-Discrimination Law’ is mentioned rather as one in a list of ‘Acts associated with conditions of employment’.

160 The Club’s Operations Manual sets out at p. 14 under the Part/Chapter titled ‘Code of Conduct’ what the ‘Legal Duties’ of Club Managers are. No specific piece of legislation is mentioned. Included at 1.5.1.2 (b) and (d) under ‘Legal Duties’ it is stated: ‘A Manager shall at all times exercise a reasonable degree of care and diligence in the exercise of his/her powers and discharge of duties’ and ‘A Manager must have a reasonable working knowledge of all relevant Acts and Statutes associated with their duties …’. The Club did not produce to the Tribunal any of its Management ‘Job Descriptions’ in which these details might be found.

161 The Club did produce Mr Crowley’s ‘Job Description’ sheet to the Tribunal re his work as a ‘relief supervisor’. The Manual states that the description outlines ‘the duties and responsibilities for which … (the staff member is)…accountable’ (p.49). The sheet refers to the ‘Objectives, Capabilities Required’ and ‘Duties and Responsibilities of a Supervisor’. A supervisor reports to the Duty Manager. Included in the supervisor’s responsibilities were the following duties: ‘Supervise personnel to ensure conformity to behaviour standards, club by-laws and statutory requirements. [2.13] …Ensure all operations comply with all relevant legal and statutory requirements. [2.30] Ensure all club’s policies, rules and regulations are being adhered to. [2.31] …Act immediately on any potential health and safety issue. [2.36] …’. Included in the supervisor’s capabilities was the knowledge of certain listed legislation. The Anti-Discrimination Act does not appear in the list.

162 In the Operations Manual under the heading ‘Personal Behaviour’ at 1.5.1.4 (d) it reads: Managers must act upon any situation involving dishonesty, misconduct or any violation of any Club policy or rule’. The Code of Conduct requires that staff be treated with respect and dignity (1.5.1.5).

163 In the current Employee Handbook’s ‘Welcome’ to staff it states that the Club places ‘considerable emphasis on staff training and development and the general well-being of its staff’.

164 The Tribunal accepts that the Handbook and those parts of the Manual mentioned expressly above provide some good supporting evidence of the Club’s effort to meet its responsibilities and obligations concerning the prevention of discrimination and harassment in its workplace. In the Tribunal’s view, the inconsistencies and omissions in the policies/procedures suggested in paragraphs 155 to 158 would probably not be sufficient to form a basis for failure to meet the standard required by s. 53(3). However, the Club’s commitment in the form of its policies and theoretical procedures alone are not considered sufficient to establish the respondent has taken all reasonable steps to prevent Mr Crowley from contravening the Act as required by s. 53(3) (see also D. & Berkeley Challenge).

165 The Club sought to suggest, apart from the policies and procedures being mentioned at Club induction and appearing in the distributed Handbook and the Manual, that staff had also received relevant training on anti-discrimination and sexual harassment matters. This suggestion was not strongly supported by the evidence.

166 Mr Bateman’s confident evidence was that he had received no sexual harassment training in his period of employment with the Club. It is noted that Mr Bateman’s evidence was that he considered it was not his job ‘to watch what (Mr Crowley) was or was not doing’.

167 In the Tribunal’s view, Mr Bateman plainly failed to perceive or recognise the potential problems in Mr Crowley’s usual conduct towards female staff and that his wife was in something of a privileged or exceptional position as far as having informal action taken on her behalf by Mr Bateman. As a Manager Mr Bateman had not complied with the Club’s own expectations of managers and supervisors as detailed in its Operations Manual.

168 Mrs Bateman was aware that the Club had a sexual harassment policy. She stated it could be found in the Employee Handbook which was required to be read and signed by staff. She recalled receiving a copy of the Handbook to read in about 1996 or 1997. Mrs Bateman was not asked in evidence about any training she may have received while employed by the Club. Mrs Bateman also failed to consider the wider implications of Mr Crowley’s conduct, thinking no further than herself in terms of preventing his inappropriate workplace conduct.

169 Ms Brown herself was the ‘Training Manager’. In relation to recognising potential workplace problems or unlawfulness in Mr Crowley’s behaviour particularly, Ms Brown’s evidence was that she ‘…didn’t go around [watching out for it]…had more important and professional things to do’. Ms Brown did not consider it her ‘place’ to judge Mr Crowley’s work performance; she stated she ‘didn’t pay attention to it’.

170 An obligation of employers is to create and maintain a healthy and safe working environment for employees. Any dangerous or unhealthy working condition may cause injury to any employee. In this regard managers particularly are expected to identify conditions which are unsafe or are potentially unsafe and avoidable. The aim is to take proper precautions in order to protect workers and ensure the safety of the workplace. It is reasonable to expect this responsibility to extend to endeavouring to ensure a discrimination and harassment free workplace. Although these responsibilities and obligations rest on all workplace participants, primary responsibility lies with the employer, through its management and supervisory structures. The interrelationship between discrimination and harassment and occupational health and safety is not acknowledged or evident in the Club’s Employee Handbook and certainly was not a connection made in the minds of these three Club Managers.

171 Neither Mr nor Mrs Bateman recognised the potential unlawfulness in Mr Crowley’s behaviour. Ms Brown too failed to recognise the wider implications of Mr Crowley’s behaviour. These failures to recognise the potential unlawfulness and danger in the Club workplace indicate an inadequate knowledge and understanding of the Act and the Club’s, and their own, obligations under it. Where potentially discriminatory conduct is not recognised as such by persons in management, that suggests that such management has insufficient understanding of the conduct, its status at law and its possible consequences. This suggests such people in management have had inadequate training on the matter and their responsibilities in relation to such in the workplace.

172 It is acknowledged that a Club such as the Richmond Club Limited, a large portion of which is staffed by casual employees, faces a challenging task as far as the appropriate training of staff is concerned. However, on the evidence produced to the Tribunal, there was nothing provided by the respondent to evidence actual relevant training of any Managers or any staff in relation to the Act generally or sexual harassment specifically. There were no records or documents detailing courses or attendances by any members of staff put into evidence to support the respondent’s training assertions. Mr Adams’ belief Mr Crowley himself would have had relevant training via a ‘Train the Trainer’ course is not proof he had such training. Similarly there was no proof the other relevant Managers undertook such training. Ms Hawkins referred to training she had undertaken which had included discrimination but she stated this ‘only covered legislative side of it, not in depth’.

173 Whatever occurred at staff induction it was plainly inadequate concerning anti-discrimination and harassment responsibilities, particularly as far as Managers were concerned. Even subsequent to the relevant incidents the Club’s commitment appears to be theoretical - considering Annexures Q and R to Mr Adams’ written statement of 23.07.2002 referred to at paragraph 84 above, notifying staff in 2000 and 2001 that all sections of the Club would be relevantly trained. There was no evidence provided by the respondent evidencing that it had in fact carried out any training at all in accordance with these expressed intentions.

174 The Tribunal concludes that these Managers either had no, or insufficient training, to recognise and understand their responsibilities as Managers to protect their staff and prevent potentially unlawful conduct in the workplace.

175 The wording of s. 53(3) is plain enough, the taking of reasonable steps is not enough, employers must take all reasonable steps to avoid liability. In the Tribunal’s opinion the Club has not met such a standard. Had the relevant Managers had sufficient understanding of the law and the Club’s obligations, they could have taken relevant action in relation to Mr Crowley. None of the Managers seemed to recognise the potential and continuing possibility of unlawfulness and the ramifications of Mr Crowley’s behaviour for other staff and in the wider workplace. The Managers should have been trained sufficiently to recognise Mr Crowley’s propensity to sexually harass its female workers and they should have taken action in relation to that conduct. The Club should have properly trained or organised the training of its staff, particularly its Managers, in their responsibilities and obligations concerning discrimination and harassment matters and their prevention in the workplace. The Club’s failure to do so means it has failed to take all reasonable steps to prevent Mr Crowley‘s harassment of the complainant.

2. Sex Discrimination

176 Very brief submissions were made on behalf of the complainant alleging that the facts also established that the respondent discriminated against the complainant pursuant to s. 25(2) the Act, in that the Club’s failure to protect the complainant from Mr Crowley formed part of the complainant’s terms and conditions of employment and such terms and conditions were less favourable than those afforded the Club’s male employees.

177 The Tribunal finds the evidence led by the complainant in support of this allegation to be insufficient.

Damage

178 The complainant’s evidence as to the impact Mr Crowley’s harassment had on her is detailed particularly at paragraphs 40, 43, 44, 45 and 46 above. The Tribunal considers that the medical evidence adduced was not challenged in any material way by the respondent. The Tribunal disagrees with Mr Russell’s submission s that the complainant had not established that she has suffered psychologically as a result of the sexual harassment. She was diagnosed with the conditions of Traumatic Neurosis, Adjustment Disorder and Anxiety Disorder following her experiences between October 1999 and March 2000 and although at the time of the Tribunal hearing the complainant described her health as excellent, she remained on Aropax, a medication prescribed for depression by her general practitioner of the last three or four years, Dr Sutherland. The Tribunal notes that the complainant had never before been prescribed medication for depression until after the third harassment incident.

179 It was submitted on behalf of the complainant that she should be compensated for the damage she has experienced as the result of the sexual harassment should liability be found to exist. No claim was made by the complainant for her medical expenses or economic loss as these had been appropriately organised and provided for by the Club at the relevant time.

180 For the complainant the three harassment incidents and the one assault incident constituted a very unhappy convergence of events all occurring over a relatively short time period of several months. The Tribunal notes that the complainant herself estimated that the impacts upon her of the harassment and assault incidents in terms of the damage she suffered could be apportioned at about 50-50.

181 The Tribunal finds that the complainant has suffered relevant damage as the result of the sexual harassment she was subjected to while employed by the Richmond Club Limited.

182 In the absence of specific submissions on an appropriate sum that might be payable should liability be found and having found liability and taken into account all relevant factors, including the complainant’s own apportionment evidence, the Tribunal has determined that for her pain and suffering attributable to her sexual harassment, an appropriate sum for the respondent to pay the complainant for her non-economic loss is $15000.00.

Decision and Order

183 The Tribunal finds the respondent Richmond Club Limited vicariously liable for the sexual harassment by Mr Robert Crowley of the complainant under s. 53(1) of the Act.

184 Pursuant to s. 113 of the Act the Tribunal finds that the complaint is substantiated and orders that the Richmond Club Limited pay the complainant the sum of $15000.00 within 28 days of the date of this decision by way of compensation for the damage the complainant has suffered by reason of the sexual harassment to which she has been subjected.

CITATION:	Caton v Richmond Club Limited [2003] NSWADT 202
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Gail Caton RESPONDENT Richmond Club Limited
FILE NUMBER:	021040
HEARING DATES:	25-26/07/2002, 30/09/2003
SUBMISSIONS CLOSED:	09/30/2002
DATE OF DECISION:	08/27/2003
BEFORE:	Lees M - Judicial Member; Edwards K - Member; Farmer L - Member
APPLICATION:	Sex Discrimination - In work - Sexual Harassment - In workplace
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Sex Discrimination Act 1984 (Cth)
CASES CITED:	Waters v Public Transport Corporation (1991) 173 CLR 349 Shellharbour Golf Club & Wheel (1999) NSWSC 224 D. & Berkeley Challenge (2001) NSWADT 92 Judge v Cripps & Cripps Pty Ltd (1999) NSWADT 11 Russell v Commissioner of Police, New South Wales Police Force & Ors [2001] NSWADT 32 Hudson v Strathfield Golf Club [2000] NSWADT 88 NSW Breeding & Racing v Administrative Decisions Tribunal [2001] NSWSC 494
REPRESENTATION:	APPLICANT J Azzi, barrister RESPONDENT D Russell, barrister
ORDERS:	The Richmond Club Limited is to pay the complainant the sum of $15000.00 within 28 days of the date of this decision by way of compensation for the damage the complainant has suffered by reason of the sexual harassment to which she has been subjected.