Cooke v Plauen Holdings

[2001] FMCA 91

FEDERAL MAGISTRATES COURT OF AUSTRALIA

COOKE v PLAUEN HOLDINGS [2001] FMCA 91

HUMAN RIGHTS – Sex discrimination and sexual harassment – conduct of supervisor found to be discriminatory, although not constituting sexual harassment.

Human Rights and Equal Opportunity Commission Act 1986 (Cth), s.46PO
Sex Discrimination Act 1984 (Cth), ss.5, 14, 28A, 28B, 106

Bebbington v Dove (1993) EOC ¶92-545;
Bennett v Everitt (1988) EOC ¶92-244;
Djokic v Sinclair (1994) EOC ¶92-643;
Doyle v Riley (1995) EOC ¶92-748;
Freeshore v Kozma (1989) EOC ¶92-249 ;
G v R & Department of Health and Community Services (unreported, HREOC, 17 September 1993);
Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217;
Hawkins v Malnet Pty Ltd (1995) EOC ¶92-767;
Hill v Water Resources Commission (1985) EOC ¶92-127 ;
Hooper v Mt Isa Mines (1997) EOC ¶92-879;
Horne v Press Clough Joint Venture (1994) EOC ¶92-556;
Kiel v Weeks (1989) EOC ¶92-245;
Leslie  v Graham (unreported, HREOC, 21 July 2000);
Shore v Perpetual Trustees Tasmania Limited (1993) ¶92-550
Gilroy v Angelov [2000] FCA 1775;

Applicant: ELISSA COOKE

Respondent: PLAUEN HOLDINGS PTY LTD trading as BICA PROLAB

File No: CZ14 of 2001

Delivered on: 27 Sep 2001

Delivered at: Canberra

Hearing Date: 26 and 27 Sep 2001

Judgment of: Driver FM

REPRESENTATION

Counsel for the Applicant: Ms C Garvan

Solicitors for the Applicant: Pappas J – Attorney

Counsel for the Respondent: Mr M O’Neill

Solicitors for the Respondent: Tetlow, Jansen and Doyle

ORDERS

1. The respondent is to pay damages of $750 to the applicant as compensation for unlawful sex discrimination. 

2. The respondent is to provide a written apology to the applicant in terms to be agreed between the parties or, in default of agreement, in terms to be settled by the Court. 

3. The respondent is to pay the applicant’s costs of these proceedings, in accordance with the Federal Magistrates Court Rules.

The Court NOTES that:

1. the applicant will be entitled to stage 1 costs, stage 5 costs for a two-day matter, stage 6 costs, including an advocacy loading for the
   two-day hearing and disbursements.

2. Settlement and entry of these orders may be effected pursuant to Order 36 of the Federal Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
CANBERRA

CZ14 of 2001

ELISSA COOKE

Applicant

And

PLAUEN HOLDINGS PTY LTD trading as BICA PROLAB

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application by ELISSA COOKE against PLAUEN HOLDINGS PTY LTD, trading as Bica Prolab. The respondent operated a photographic laboratory at Fyshwick in the ACT at which the applicant was employed. The application is brought pursuant to s.46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (the HREOC Act) alleging that the applicant was the subject of sexual harassment contrary to sections 28A and 28B of the Sex Discrimination Act 1984 (Cth) (the SDA). The applicant also alleged discrimination under sections 5 and 14 of the SDA and the application also seeks relief against the respondent pursuant to s.106 of the SDA. The application is opposed by the respondent.

The applicant’s case

1. The applicant relies upon her own affidavit made on 27 August 2001, the affidavit and annexures of her solicitor, Nigel John Gabbedy, made on 24 May 2001, the affidavit of Matthew James Baker made on 14 September 2001, and the affidavit of Jody McCabe made on 17 September 2001.  All of these deponents, other than Mr Gabbedy, also provided oral evidence and were cross-examined. 

2. The applicant’s case is that she was sexually harrassed by Mr Phillip Ong throughout the period of her employment at the Bica Prolab facility at Fyshwick.  This was a period of 11 working days, running over three weeks.  The applicant alleges that after she commenced her employment Mr Ong sat very close to her, that he asked her a series of extremely personal and inappropriate questions, that he told her personal things about himself, that he touched her in an embarrassing place one day in a dark room and then made an inappropriate joke about it, that he invited her to his home, that he asked her to model for him, that he asked the applicant whether her flatmate would model for him, that he asked the applicant to have coffee with him and that, when she cancelled the coffee meeting, Mr Ong abruptly changed his attitude.  The applicant alleges that thereafter, Mr Ong became abusive and over-critical and was generally very unpleasant to be around.  The applicant alleges that after a confrontation with Mr Ong on 25 May 1999 she complained to Mr David Foxwell, one of the principals of the business, and that she had become very distressed.  The applicant alleges that she suffered continuing stress, even though Mr Foxwell transferred her to a different company facility in Canberra City and that she considered she had lost training opportunities as a result of the transfer.  Seven months later, the applicant resigned from her employment.

3. I found Ms Cooke to be generally an honest and reliable witness.  Much of her evidence was unchallenged.  Ms Cooke was challenged on her evidence that she had raised Mr Ong’s behaviour with Mr Foxwell shortly prior to 25 May 1999 and did concede that her recollection of this conversation was that it was quite general.  She also conceded that she had received a salary increase following her transfer from Fyshwick to Canberra City and that the touching incident in the dark room was probably accidental.  It is clear from her evidence and the cross-examination that Ms Cooke initially found Mr Ong to be pleasant and friendly but somewhat “creepy”.  She felt that he was watching her in a secretive way.  It is also clear that Ms Cooke had extreme difficulty in dealing with Mr Ong as her supervisor in the latter stages of her employment at Fyshwick. It was put to Ms Cooke that while she had difficulty with Mr Ong as a supervisor, because of his personality, there was no sexual harassment.  Ms Cooke was adamant that she found Mr Ong’s behaviour inappropriate and troubling on several levels, and not just as a supervisor.  On the other hand, it is clear that what really upset Ms Cooke and led to her transfer to Canberra City, was Mr Ong’s conduct after she cancelled their coffee appointment.  

4. Ms Cooke conceded that she waited a long time before making her complaint to HREOC but explained this on the basis that it took her some time to recover from feelings of anxiety and depression and to fully appreciate what had happened to her.

5. Mr Baker gave evidence that Mr Ong is a very controlling person who treated employees, particularly female employees, badly.  He said that he had observed Mr Ong on numerous occasions ask female employees to model for him and that he had heard Mr Ong made this request of Ms Cooke several times.  Mr Baker, however, was not an impressive witness.  Under cross-examination, it was apparent that he was doing his best to demonise Mr Ong.  He rather overplayed his hand.  When pressed, he became uncertain and even contradictory.  This significantly reduces the weight that I can attach to his evidence.

6. Ms McCabe I found to be a more reliable witness.  She stated that Mr Ong had asked her inappropriate personal questions which made her uncomfortable but that she did not feel the need to do anything about it.  I assessed Ms McCabe to be a more confident and experienced person than the applicant.  Ms McCabe gave evidence that following Ms Cooke’s transfer from Fyshwick to Canberra City Ms Cooke performed well, although she was a very quiet girl.  Ms McCabe gave evidence that Ms Cooke seemed at times depressed and that she became ill on occasion, necessitating sick leave.

7. In addition to the affidavit evidence I permitted the applicant to adduce oral evidence from her father, Mr David Cooke.  I found him to be a reliable witness.  His evidence was that Ms Cooke was a young and inexperienced girl from the country who was very excited about her new job in Canberra.  Shortly after commencing her employment the applicant sought advice from her father about Mr Ong’s approaches.  Mr Cooke advised his daughter that it would be all right to meet socially with Mr Ong so long as it was a public place.  Mr Cooke gave evidence that his daughter’s state of mind changed dramatically late in her employment at Fyshwick.  At that stage, Ms Cooke rang up very distressed as a result of Mr Ong’s aggressive supervision of her.

8. Annexed to Mr Gabbedy’s affidavit is a medical report from Dr George Guirguis, dated 22 May 2000.  Mr O’Neill, for the respondent, objected to this report on the basis that Dr Guirguis was not cross-examined and there was no indication of his qualifications to give the medical opinion contained in his report.  I accepted the report as evidence that the applicant had sought medical attention on 9 August 1999, that she had recited the history of the events at Fyshwick, that she had still appeared distressed at that time, and that the doctor prescribed anti-depressant medication and counselled her. The applicant saw the doctor again on 8 December 1999, at which time she had ceased taking her medication.  At that time Ms Cooke still appeared distressed.  Ms Cooke still appeared distressed when the doctor saw to her a third time on 19 May 2000.  I place little weight on the doctor’s diagnosis as it is untested and I do not know whether the doctor was qualified to make it.

The respondent’s case

1. The respondent relies upon the affidavit of David Foxwell made on 24 September 2001 and the annexures thereto, the affidavit of Peter Morrell made on 5 September 2001 and the affidavit of Elizabeth Barclay made on 24 September 2001.  Mr Foxwell and Mr Morrell are the two directors of the respondent.  Each of the deponents gave additional oral evidence and were cross-examined. 

2. Mr Foxwell gave evidence that he is responsible for management matters for the respondent.  At the relevant time there were between 17 and 20 employees at the Fyshwick facility.  The respondent had not received any complaints of sexual harassment prior to that made by the applicant.  Up to that time the respondent did not have any formal sexual harassment policy.  A policy has since been adopted.  Mr Foxwell stated that some staff concerns about the management style of Mr Ong had been put to him prior to 25 May 1999 and that he had counselled Mr Ong.  He described Mr Ong as at times withdrawn to the point of rudeness.  Following the applicant’s complaint to Mr Foxwell he met her in Civic and obtained details from her.  He then interviewed Mr Ong separately for about one and a half hours.  Mr Foxwell found that Mr Ong had acted inappropriately in asking the applicant to model for him and decided that Mr Ong should be moved to a different position within the Fyshwick facility where he did not have any supervision responsibilities.  Mr Foxwell denied that he had had any conversation with the applicant about Mr Ong before 25 May 1999.  He stated he had asked the applicant when he spoke to her about her complaint whether she wished to remain at the Fyshwick facility and she was adamant that she could not remain there while Mr Ong was there.  She accepted an offer to move to the Canberra City premises and declined a subsequent offer to return to Fyshwick because Mr Ong was still there. 

3. Mr Foxwell gave evidence that Ms Cooke was employed on relatively simple low skill work at Fyshwick and that she was given more developmental opportunities after she moved to Canberra City.  At Fyshwick Ms Cooke had been employed at a non-award rate of pay but had the opportunity to earn incentive bonuses.  Following a request from Ms Cooke when she moved to the Canberra City premises, Ms Cooke was placed on the retail trade award at a higher rate of pay but without access to incentive bonuses.  She was, however, entitled to incremental advances under the award. 

4. I found Mr Foxwell to be an honest and reliable witness. 

5. Mr Morrell had limited knowledge of the events leading up to these proceedings as it was Mr Foxwell who took charge of staffing matters.  He confirmed that the respondent had no formal sexual harassment policy prior to 25 May 1999 but stated that staff were given a letter at the time they commenced employment instructing them to be courteous and polite to others.  Mr Morrell regarded Mr Ong as being technically competent although moody and he regarded him as an appropriate supervisor of the applicant.  I accept his evidence in this regard.

6. Elizabeth Barclay was that very rare commodity, a totally open and persuasive witness.  She gave her evidence clearly and convincingly and in a delightful Scottish accent.  In response to a question from me she described Mr Ong as a “horrible, horrible man”.  Later, she described Mr Ong as a “miserable wee man”.  She stated that Mr Ong was on occasion unpleasant to her but that she gave back as good as she got.  She recalled seeing the applicant upset and crying at work at Fyshwick but the applicant declined to explain why.  She said that Mr Ong had offered to take photographs of herself and her 18 year old daughter and that she did not consider that approach inappropriate.  Ms Barclay was also firm in her evidence that Mr Ong treated everyone badly regardless of their sex.

The legislation

1. As noted above this application is brought under sections 5, 14, 28A, 28B, and 106 of the SDA. Section 5 defines sex discrimination. The section provides that, for the purposes of the Act, a person discriminates against another on the ground of sex of the aggrieved person if, by reason of:

   a)the sex of the aggrieved person;

   b)a characteristic that pertains generally to persons of the sex of the aggrieved person; or

   c)a characteristic that is generally imputed to persons of the sex of the aggrieved person; the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of the opposite sex.

2. Section 14 of the SDA provides that it is unlawful for an employer to discriminate against a person on the ground of the person’s sex, relevantly, in the terms or conditions of employment that the employer affords the employee or by subjecting the employee to any other detriment.

3. Section 28A defines sexual harassment. The section provides as follows:

   (1) For the purposes of this Division, a person sexually harasses another person (the person harassed ) if:

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

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

   (2) In this section:

   conduct of a sexual nature includes making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing.

4. Section 28B relevantly provides that it is unlawful for an employee to sexually harass a fellow employee

5. Section 106 deals with vicarious liability. That section provides that:

   (1) Subject to subsection (2), where an employee or agent of a person does, in connection with the employment of the employee or with the duties of the agent as an agent:

   (a) an act that would, if it were done by the person, be unlawful under Division 1 or 2 of Part II (whether or not the act done by the employee or agent is unlawful under Division 1 or 2 of Part II); or

   (b) an act that is unlawful under Division 3 of Part II;

   this Act applies in relation to that person as if that person had also done the act.

6. Subsection (1) does not apply in relation to an act of a kind referred to in paragraph (1)(a) or (b) done by an employee or agent of a person if it is established that the person took all reasonable steps to prevent the employee or agent from doing acts of the kind referred to in that paragraph.

Consideration of the issues

1. The SDA provides that one person sexually harasses another if:

   he or she makes an unwelcome sexual advance or unwelcome request for sexual favours to the person harassed or engages in other unwelcome conduct of a sexual nature in relation to the person harassed; and

   in the situation a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimidated.

2. I accept the applicant’s submission that the relevant elements for the purposes of s.28A are:

   a)conduct of a sexual nature;

   b)the conduct must be unwelcome;

   c)the person harassed is or would be offended, humiliated or intimidated by the conduct; and

   d)having regard to all the circumstances, a reasonable person would have anticipated that the person harassed would have felt this way.

3. The test here is objective and it does not matter whether the perpetrator intended to act in a sexual way or, indeed, was aware that he or she was acting in a sexual way.  The type of conduct that has been held to be conduct of a sexual nature covers a wide range of circumstances: Bennett v Everitt (1988) EOC ¶92-244; Kiel v Weeks (1989) EOC ¶92-245; Horne v Press Clough Joint Venture (1994) EOC ¶92-556; Hooper v Mt Isa Mines (1997) EOC ¶92-879; Doyle v Riley (1995) EOC ¶92‑748; Bebbington v Dove (1993) EOC ¶92-545; Hawkins v Malnet Pty Ltd (1995) EOC ¶92-767; G v R & Department of Health and Community Services (unreported, HREOC, 17 September 1993); Djokic v Sinclair (1994) EOC ¶92-643; Hill v Water Resources Commission (1985) EOC ¶92-127 and Freeshore v Kozma (1989) EOC ¶92-249.

4. It is also clear that sexual harassment  constituted by conduct of a sexual nature can be the result of a single act or single incident: Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217; and Leslie v Graham (unreported, HREOC, 21 July 2000).  The question whether a single action or statement can constitute sexual harassment depends on the nature or quality of the action or statement.  Some conduct may be so troublesome or vexing to be of such a nature as to cause offence sufficient to constitute sexual harassment.  On the other hand, other conduct would not.  In addition, there is no reasonableness test in relation to the nature of the complainant’s reaction to the relevant conduct.  The test is whether a reasonable person would have anticipated that a complainant would be offended, et cetera: Kiel v Weeks (op cit).

5. The respondents say that the conduct complained of does not constitute sexual harassment within the meaning of s.28A of the Act. There is no real issue as to whether the conduct was or was not unwelcome. The issues are whether the conduct of Mr Ong was sexual conduct, whether the applicant was harassed by it and whether, in the circumstances, a reasonable person would have anticipated that the applicant could be offended, humiliated or intimidated. It was not contested, or at least not seriously contested, that Mr Ong had made inappropriate personal comments to Ms Cooke. He had done so to others. Mr Ong was probably socially clumsy, even socially inept. He may not have intended his comments and questions to be sexual in nature but I do not think that that matters. The comments and questions can objectively be regarded as sexual in nature, they were deliberate and the applicant was the target. Nevertheless, these comments were made at an early stage in the applicant’s employment, they were relatively mild in nature and the applicant, whilst somewhat troubled, was, I find, not particularly disturbed by them. At this stage she still regarded Mr Ong as being friendly, perhaps overly friendly. I am not satisfied that the comments and questions complained of by Ms Cooke constituted sexual harassment.

6. Neither am I satisfied that the practice of Mr Ong sitting close to the applicant constituted sexual harassment.  She was a new employee and it was Mr Ong’s job to supervise her.  This required him to observe her work and there was nothing inappropriate in Mr Ong observing her at close quarters.  The applicant found Mr Ong to be “creepy” in the manner in which he came and went surreptitiously but I do not think that that was in any sense sexual conduct.  It was merely Mr Ong’s unfortunate supervision style. 

1. There was nothing sexual in the touching incident in the darkroom.  The touching was accidental.  Mr Ong made a joke of it but I find that that was a reasonable response to an embarrassing situation. 

2. The invitations made by Mr Ong for Ms Cooke to model for him, come to his home and to have coffee with him can properly be regarded as sexual in nature.  I find that Mr Ong probably did have some interest in Ms Cooke although the degree of his interest is quite uncertain.  It was after these invitations were given that Ms Cooke sought advice from her father.  His advice was that Ms Cooke could accept the invitation for coffee so long as it was in a public place.  Ms Cooke had previously declined the invitation to model and the invitation to go to Mr Ong’s home.  I am satisfied that these invitations were not sought by Ms Cooke and that Mr Ong’s interest in her was not reciprocated.  On the balance of probabilities I find that Mr Ong’s interest in Ms Cooke was unwelcome.  He was a much older man than Ms Cooke and she was unlikely to have any interest in him.  Nevertheless, I do not think that Ms Cooke was harassed by these invitations.  She was clearly uncertain as to how to react, which is why she sought advice from her father.  She did, however, accept the invitation to coffee (although she later cancelled it because her mother was visiting) but I am not satisfied that Ms Cooke was offended, humiliated or intimidated by these invitations.  With regard to the invitations to model, Mr Ong was a professional photographer and frequently sought models.  In the case of Ms Cooke, I find that there was a sexual dimension to the invitation but Ms Cooke declined it and she was not harassed by it. 

3. Ms Cooke was clearly harassed by Mr Ong’s conduct after she cancelled the coffee invitation but his conduct from that point was in no sense sexual.  It was very poor management and supervision by Mr Ong but I have persuasive evidence before me that such conduct by Mr Ong was commonplace.  It was probably more severe in the case of the applicant and Ms Garvan, for the applicant, invited me to conclude that the conduct of Mr Ong should be seen as a continuing course of conduct, so that his bullying management of Ms Cooke could be linked to his earlier sexual conduct.  There is some force in that submission but, ultimately, I am not persuaded by it.  I think it unlikely that Mr Ong was fully aware that there was a sexual dimension to his earlier conduct and I do not think that his later conduct was the aggressive reaction of a spurned sexual predator.  It was the unfortunate product of a very poor staff manager who had been irritated over an apparently trivial matter (the cancellation of the coffee appointment).

4. While I do not consider that Mr Ong’s conduct constituted sexual harassment I have concluded that it constituted sex discrimination contrary to s.14 of the SDA. The test here is whether Ms Cooke was treated less favourably by reason of her sex or by some attribute related to her sex. The evidence of Mr Baker was that Mr Ong managed female staff worse than male staff. On the other hand, the evidence of Ms Barclay was that Mr Ong managed all staff very poorly, regardless of their sex. I prefer her evidence. But one must look further. I have no evidence that Mr Ong asked males to model for him or that he made similar invitations to males that he made to Ms Cooke. Neither do I have evidence that he asked males similar questions to those he asked of Ms Cooke and Ms McCabe. I am entitled to conclude that Mr Ong, while he treated everyone badly at times, was more intrusive in his management of female staff than in his management of male staff. Mr Foxwell found as a matter of fact that Mr Ong’s invitations to new female staff to model for him were inappropriate.

5. I add to that a conclusion that Mr Ong’s treatment of Ms Cooke after she cancelled the coffee appointment was lamentable.  He swore at her or at least in her presence, he found excessive fault with her work, and he appeared deliberately to undermine her confidence.  Mr Ong was not called as a witness although one would have thought that if he could have refuted the factual allegations against him the respondent would have called him.  There was attached to Mr Foxwell’s affidavit an unsworn and unsigned statement from Mr Ong produced in connection with a worker’s compensation claim made by him following the sexual harassment complaint.  In that document Mr Ong disputes many of the allegations made against him concerning the events complained of by Ms Cooke but I place no weight on that unsworn, unsigned document.  I draw an inference that if Mr Ong had been called as a witness his evidence would not have assisted the respondent.  I find that if Ms Cooke had been a man she would not have been treated as badly as she was by Mr Ong.  Accordingly, she was subjected to less favourable treatment by reason of her sex. 

6. I must, of course, be able to find that s.14 of the SDA has been breached if the applicant is to succeed in these proceedings. I find that it was. I find that Mr Ong subjected Ms Cooke to a detriment by reason of her sex in the course of his supervision of her. Mr Ong’s supervision of Ms Cooke was more objectionable and more vexing than it would have been if she had been a man. In Shore v Perpetual Trustees Tasmania Limited (1993) EOC 92-550 HREOC found that the complainant had established unlawful conduct within the meaning of the SDA insofar as her supervisor’s treatment of her made her feel uncomfortable, unwelcome and victimised and this treatment was in part referable to her sex. The Commission found that the existence of a personality clash between the complainant and her supervisor did not exclude a characterisation of his conduct as hostile conduct based at least in part on the complainant’s sex. The Commission found that it was sufficient if the sex of the aggrieved person was a reason for the discriminatory conduct. It was not necessary that it be the substantial or dominant reason. I think that this is a substantially similar case. Part of the reason for Mr Ong’s conduct was that he had very poor human relations skills, although he was technically highly competent. However, part of the reason for his treatment of Ms Cooke was that she was a woman and thus more susceptible to his controlling tendencies.

Vicarious liability

1. The respondent bears no direct liability in this case. The respondent, through Mr Foxwell, acted promptly and appropriately after being informed of Ms Cooke’s complaint. However, under s.106 of the SDA, an employer is deemed to be liable for the unlawful actions of an employee or agent. Once it is established that unlawful harassment or discrimination was perpetrated by an employee in connection with the employment of the employee then the employer is rendered liable unless the employer can establish the defence provided by s.106(2). This is a defence which is common to state and territory legislation as well as the SDA, whereby an employer will be able to sever the nexus with the offending employee and thus not be vicariously liable for the sexual harassment which occurred. Such severance occurs when the employer can prove, on the balance of probabilities, that he or she took all reasonable steps to prevent the employee from contravening the legislation.

2. The first question, then, is whether the unlawful harassment was committed by employees of the respondents in connection with their employment. I find that it was. There is no doubt that the supervision exercised by Mr Ong was exercised in the course of his employment. In all the circumstances, I find that the necessary elements of s.106(1) have been established. The onus therefore passes to the respondents to establish the defence set out in s.106(2) of the SDA.

3. The applicant submits that the respondents took no steps to prevent the alleged harassment and discrimination.  The respondent contends that it did take reasonable steps and refers to general instructions given to new employees to treat others with courtesy and respect. 

4. Care needs to be taken when considering the meaning of the expression “taking reasonable steps to prevent the sexual harassment occurring”. The SDA does not distinguish between large and small employers, in terms of the availability of a defence under s.106(2): Gilroy v Angelov [2000] FCA 1775 at paragraph 100. As was apparent in that case, however, it would be unrealistic to expect all employers, regardless of size, to adhere to a common standard of preventative measures. This defence has been interpreted in Australia as requiring the employer to take some steps, the precise nature of which will be different according to the circumstances of the employer. Thus, large corporations will be expected to do more than small businesses in order to be held to have acted reasonably. I note, however, that the reasonableness factor applies to the nature of the steps actually taken and not to determine whether it was reasonable not to have taken steps in the first place.

5. In this case, I am satisfied that the respondent took few steps of any consequence to prevent Mr Ong’s discriminatory conduct.  A vague single sentence in a letter of engagement hardly counts.  The respondent was put on notice prior to 25 May 1999 that other staff were having difficulties with Mr Ong.  It should have been apparent to the respondent that Mr Ong was lacking human relations skills and was a poor supervisor (although highly technically competent).  I accept that Mr Ong had been counselled prior to 25 May 1999 but that counselling was clearly ineffective.  It is apparent from the evidence of Mr Foxwell in particular that he knew enough of Mr Ong’s personality to have recognised prior to 25 May 1999 that there was a significant risk of Mr Ong causing offence to subordinate employees.  He recognised too late that Mr Ong needed to be relieved of supervision responsibilities.  While the respondents did take some steps to prevent the discriminatory conduct of Mr Ong these were insufficient and ineffective.  Mr Ong should not have been Ms Cooke’s supervisor at all. 

Assessment of loss

1. Damages should be assessed on a torts placed principle on placing the applicant in the situation she would have been in had the discrimination and harassment not occurred: Gilroy v Angelov (op cit) and Shiels v James and Lipman Pty Ltd [2000] FMC 2.  The applicant claims compensation in the form of an apology and damages.  The applicant has claimed damages for economic loss  but I am not persuaded by the limited evidence of such loss.  The applicant was continued in employment by the respondent for seven months after the incident complained of, when the applicant resigned of her own accord.  The applicant’s income increased following her move from Fyshwick to Canberra City.  If she had remained at Fyshwick the applicant may have gained more technical experience but that is far from certain.  It is equally likely, based upon Mr Foxwell’s evidence, that any experience the applicant would have gained would have been rendered redundant by changing technology.  Although the applicant is not currently engaged in the same field of employment this is because she has chosen to undertake further studies in another field of activity and she has not been forced to give up her aspirations in photographic processing.  No claim is made for any medical expenses.  Accordingly, I find that the applicant has suffered no economic loss. 

2. There is no other allowable claim for special damages.

3. As to general damages, damages for injury to feelings should be restrained in quantum though not minimal.  On the other hand, awards compensating for injured feelings should not be so low as to diminish the respect for the public policy of the legislation: Horne & McIntosh v Press Clough Joint Venture (1994) EOC ¶92-591 at p77, 179. The applicant was clearly distressed by the events of 25 May 1999. That distress continued for some time afterwards although its duration is not clear. The medical report indicates that the applicant continued to be distressed, at least when recalling the events, in 2000. She showed no such distress in giving evidence before me. I conclude that the applicant was initially severely distressed and that that distress continued for approximately 12 months, although it diminished over time. The applicant had suffered a severe blow to her self-confidence and it took some time for her to regain self-confidence. I am satisfied that the situation has now resolved itself. The applicant has suffered no permanent psychological injury.

4. The range of compensation that might be awarded for injury to feelings in a case such as the present would be in the range of $200 to $2,000.    This case stands at the lower end of that range.  Although in recent times there has been a tendency for damages awards for non-economic loss to increase, most of the higher awards of damages in recent years have concerned very serious cases of sexual harassment. I have found that this is not a case of sexual harassment.  The conduct complained of in this case was reprehensible in management terms but not otherwise.  It was conduct that a reasonable person would have anticipated would be distressing to a young and inexperienced employee.  In all the circumstances I have decided that an award of $750 in general damages for pain and suffering is appropriate. 

5. I have also taken into account in assessing what is an appropriate award of damages that Ms Cooke should receive an apology.  She has received an oral expression of regret but she is entitled to a formal apology.  An apology is frequently worth more to an applicant than money.  In this case I am satisfied that a written apology would go a long way to compensating the applicant for the distress and loss of confidence that she suffered.

Costs

1. The applicant has succeeded in these proceedings and costs should follow the event.  I agree with the views expressed by Raphael FM in Shiels v James at paragraph 80 concerning the general desirability of an award of costs in favour of a successful applicant in human rights proceedings, so as to avoid an award of damages being swallowed up by the cost of litigation. The respondent acknowledged that if unsuccessful in the proceedings it could not seriously resist an order for costs. Both parties agreed that the fixed event based costs regime applicable in this Court should apply in this case. For the purposes of Rule 21.15 of the Federal Magistrates Court Rules I certify that it was reasonable for the applicant to employ an advocate to appear for her at the hearing on 26 and 27 September 2001.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date:    5 October 2001