D'ANDREA v Studio Silva Photography Pty Ltd
[2006] SADC 114
•28 September 2006
DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division: Application)
D'ANDREA v STUDIO SILVA PHOTOGRAPHY PTY LTD
[2006] SADC 114
Judgment of His Honour Judge Boylan, Member Bachmann and Member Worley
28 September 2006
DISCRIMINATION LAW - STATE PROVISIONS - SOUTH AUSTRALIA - SEXUAL DISCRIMINATION
A twenty-one year old woman claimed that her thirty-five year old employer sexually harassed her and dismissed her because she did not give in to his sexual advances. Proceedings heard in the absence of the respondent who failed to attend.
Complaint proved. Damages awarded for injury to feelings and for lost wages.
Equal Opportunity Tribunal cannot order summary judgment; nor does it have power to award interest or to make general costs awards.
Equal Opportunity Act 1984 30(2); 86(2)(d) and (c); 87(2), 7) and (1D); 95(6), referred to.
D'ANDREA v STUDIO SILVA PHOTOGRAPHY PTY LTD
[2006] SADC 114
Sonja D’Andrea worked for Studio Silva for about two weeks in 2003. She claims that Studio Silva’s managing director, Mr Jaye, sexually harassed her and eventually dismissed her because she would not give in to his sexual advances. If she is right, then both Studio Silva and Mr Jaye will have breached various provisions of the Equal Opportunity Act 1994 and Ms D’Andrea would be entitled to be paid compensation.
We have not heard Mr Jaye’s side of the story. Although he has had notice of Ms D’Andrea’s complaint, he has chosen to ignore it. So has Studio Silva. We went ahead and heard Ms D’Andrea’s claim as we are entitled to do pursuant to Section 24(2) of the Act. We accept that Ms D’Andrea’s claims are right. She is entitled to compensation.
In July of 2003, Wayne Jeffrey Jaye was the secretary and sole director of Studio Silva and was employed by that company as a photographer. He was then 35. There was only one other employee, a receptionist, about 15 years old.
Ms D’Andrea was 21. She had then been working for Woolworths Supermarkets for nearly seven years and had only about three more weeks to work there before becoming eligible for long service leave benefits. She intended to remain at Woolworths for that period. But she was also keen to start a new career. She applied for a position as a trainee photographer at Studio Silva and got the job. She began at Studio Silva on 7 July 2003. She would have preferred to have waited until she had become eligible for her long service leave benefits, but Mr Jaye insisted that she start immediately.
The terms of her contract of employment were contained in a letter from Studio Silva signed by Mr Jaye and dated 30 June 2003. She was to receive a base salary of $1,200 gross per fortnight and superannuation of 8% of base salary, or $108.
The harassment
Late in the afternoon of 8 July 2003, her second day at Studio Silva, Ms D’Andrea went with Mr Jaye to a café. While there, Mr Jaye asked Ms D’Andrea to go interstate with him. She asked if such travel would be for the purposes of her work. He replied that “It could be” and went on to say that he could create for her a job which would oblige her to travel interstate with him. Ms D’Andrea said that she had a boyfriend and was not interested in going interstate for personal reasons. Mr Jaye told her that she might have to do so and that it would be a waste of her talent were she to marry and have children. He also said that he would not want her to work with him if she became pregnant. Ms D’Andrea replied that her private life was none of his business and had nothing to do with her employment at Studio Silva. As they were leaving the café, Mr Jaye asked Ms D’Andrea to have dinner with him. She refused and went home.
On another day they had been taking photographs together. Mr Jaye constantly stared at Ms D’Andrea, telling her that she had beautiful eyes and that he could drown in them. She asked him to stop, protesting that she did not want to hear such things. He persisted. He said that she was sexy. Ms D’Andrea told Mr Jaye that she was not interested in him and that she had had a boyfriend for three years. To that, he replied “But you’re not certain you want to be with him, are you?” She answered that she was certain she wanted to be with her boyfriend.
At about 6 o’clock on 11 July 2003, Ms D’Andrea asked if she could leave for the day. Mr Jaye refused, saying “No, I want to talk to you.” Ms D’Andrea asked what was wrong, to which he said “Nothing; I just really love talking to you.” When Ms D’Andrea went to leave, he prevented her by putting out his hand and saying “Don’t leave me”. Ms D’Andrea pushed his hand away and asked him to let her go. He did not permit her to leave for another hour or so.
On another occasion, Ms D’Andrea was taking photographs of a child. Mr Jaye was sitting behind her. At one stage he whispered in her ear “I can see your G-string.” He then lifted her jumper and repeated his comment. Ms D’Andrea said “Stop it. Can you get away”. He replied “You’re wearing a nice one today” and continued to lift up her jumper for some minutes.
During the second week of her employment, Mr Jaye continued to compliment Ms D’Andrea on her appearance. She said to him “Shut up”and he replied “If you tell me to shut up, I’m going to slap you”. The next day, Ms D’Andrea was fixing a light in the studio when Mr Jaye slapped her on her buttocks, saying “Ouch. That hurt my hand.” She said “Piss off; who do you think you are?” Mr Jaye laughed. Ms D’Andrea said “How dare you slap me”. Mr Jaye then said “I told you I would do it if you said shut up again”. Ms D’Andrea replied “Don’t you ever do that again”. To that, he said “Everything I do to you, you could put me up for sexual harassment.” Ms D’Andrea said that she had had enough of him and would do so if he continued.
One day, Ms D’Andrea returned from lunch with a shopping bag. Mr Jaye looked into it and said “Nice underwear: you would look great in these.”
Another incident occurred when they were at Port Adelaide taking photographs. Mr Jaye asked her to model in the photographs. Although she told him that she was uncomfortable doing so, she ended up posing in some of them. He then asked her to put one of her legs up higher. She refused, saying that he would be able to see all of her buttocks, but because he seemed to be getting angry, she tried to do as he had asked. When she said that she could not pose as he requested because her jeans were too tight, he said “Well, put mine on. Come on, come on.” She refused and went back to the car. He continued to insist that she change into his trousers until she said “I’ll have to get undressed in front of you, and I don’t think so.” At that, he became upset and said “You always have to ruin my vision. Now I can’t take the photographs. Just typical.” They began to drive back to the studio. On the way, they stopped to take further photographs. Again, Mr Jaye asked Ms D’Andrea to pose, this time asking her to take off her jumper. Again, she refused. He said “That’s fine; spoil it again”. They resumed the drive back. They had been in the car for some minutes when Mr Jaye told Ms D’Andrea to pull over. He said “I’m sick of these games; I’m walking back” and he got out of the car. But after a minute or so he got back in and they drove back to the Studio. By then it was time for Ms D’Andrea to go home as it was 7 p.m. Mr Jaye said “I don’t want you to leave. I already miss you.” Eventually she left.
On the 22nd of July 2003, the last day of her employment with Studio Silva, Mr Jaye refused to let Ms D’Andrea leave at the end of the day. He insisted to her that she had feelings for him but that she was unable to express them. They discussed the issue for a half an hour or so. Eventually, Ms D’Andrea had had enough and said that she was going. Mr Jaye said “I don’t want you to work with me, all you do is play games.” Ms D’Andrea replied “Fine. If you don’t want me to work for you write a letter of termination.” Mr Jaye then wrote a letter saying that she was no longer to work for him because there was insufficient work. When she asked why he didn’t give the correct reason Mr Jaye said “I can’t write how I’ve asked you to leave because I have feelings for you, you will never get another job.” Ms D’Andrea took the letter and began to leave the premises. Mr Jaye stopped her and tore up the letter in front of her. Ms D’Andrea walked out.
On the following morning, the 23rd of July 2003, Ms D’Andrea went to the studio to collect her pay, her photographs, and, perhaps, a reference. When she arrived Mr Jaye gave her a letter written on a table napkin. We do not set out the contents of the letter. It was a letter protesting Mr Jaye’s love for Ms D’Andrea. Having read the letter in the reception area of the studio, Ms D’Andrea said that she was leaving. Mr Jaye became upset, saying that he didn’t know why she was leaving. Ms D’Andrea reminded him that he had told her to leave the night before. At that, Mr Jaye because extremely upset and said to Mr D’Andrea and to the receptionist, “I’m closing this fucking studio. Both of you leave.” He slammed the door and walked out. A few minutes later, as Ms D’Andrea was collecting her belongings, Mr Jaye returned and told her to leave but instructed the receptionist to stay. Ms D’Andrea eventually left. As she was going home, Mr Jaye rang her numerous times but she did not answer. After his seventh call to her, Ms D’Andrea answered. Mr Jaye told her to come back, saying that he needed her. Ms D’Andrea hung up.
Ms D’Andrea asks for her wages
Throughout the following week, Mr Jaye continued to ring Ms D’Andrea. She answered one of the calls and told Mr Jaye that she was entitled to her wages for the time she had worked for Studio Silva. He instructed her to come to the studio the following day to collect them.
On the next day, Ms D’Andrea went to the Studio with her boyfriend Mr Mammone. Mr Jaye said that he did not know why she was there and when Ms D’Andrea referred him to her telephone conversation with him of the previous day, he denied that he had told her to come and collect her wages and denied that she was owed any money. Mr Mammone then demanded that Mr Jaye pay Ms D’Andrea what was owed to her. Mr Jaye threatened to call the police if they did not leave immediately. They left.
On the 29th of July 2003, Ms D’Andrea sent to Mr Jaye a letter requesting payment for the work that she had done between the 7th and the 22nd of July 2003.
There was no further contact for some time. But around the time of Ms D’Andrea’s birthday, in October, Mr Jaye sent her a number of text messages.
Having ceased employment at Studio Silva, Ms D’Andrea remained unemployed until the 1st of December 2003. For the first three weeks of that period, she felt too upset to apply for other positions. But from that time on, she made numerous applications for work.
Did Studio Silva dismiss Ms D’Andrea?
Did Studio Silva dismiss Ms D’Andrea? Yes, but not when Mr Jaye gave her the letter. Both of them were upset at the time and Mr Jaye tore up the letter almost immediately. But it is unnecessary to consider possibly nice questions of law about a one sided withdrawal of a notice of dismissal. Ms D’Andrea was constructively dismissed.
A contract of employment contains an implied term of mutual trust and confidence. By his persistent sexual overtures to Ms D’Andrea, and by his behaviour towards her on the occasion of writing the letter and by his behaviour towards her the following morning, Mr Jaye breached that implied term. The result is that Studio Silva, acting through its managing director, constructively dismissed Ms D’Andrea. It did so owing to her sex. We are satisfied, therefore, that Studio Silva breached Section 30(2).
Was there victimisation?
Ms D’Andrea claims that Mr Jaye victimised her. He will have done so if he treated her unfavourably because she had made allegations of sexual harassment. We are not satisfied that Mr Jaye committed an act of victimisation. Prior to her finally leaving Studio Silva, the only occasion on which there was any suggestion of sexual harassment was the occasion of Mr Jaye’s slapping Ms D’Andrea’s buttocks. Mr Jaye raised the topic of sexual harassment. Ms D’Andrea responded that she had had enough of Mr Jaye and that she would “put him up for” sexual harassment if he continued his unwelcome behaviour. If that response included an allegation of sexual harassment, Mr Jaye did not treat her unfavourably on account of it. He simply persisted in his unwelcome behaviour. His doing so was unrelated to her response.
Ms D’Andrea also complains that she has been victimised because she reasonably asserted her right to lodge a complaint. While Mr Jaye sent her unwelcome text messages after she had lodged her complaint, he was not treating her unfavourably on account of her having done so. The messages were further protests of affection or, possibly, attempts to persuade her to discontinue her complaints. They did not amount of victimisation within the meaning of the Act.
Did Studio Silva fail to prevent Mr Jaye from sexually harassing Ms D’Andrea?
Mr Jaye was an employee of Studio Silva and therefore a fellow employee of Ms D’Andrea. He subjected her to sexual harassment in a number of ways. By lifting her jumper and making comments about her G-string, he subjected her to an unsolicited and intentional act of physical intimacy and, in all the circumstances, it was reasonable that Ms D’Andrea should have been offended and humiliated by his conduct. The same applies to the slapping of her buttocks. Similarly, he subjected her to sexual harassment when, on more than one occasion, he made remarks with sexual connotations relating to her. He did so when he told her that she was sexy, when he made a comment about her G-string and when he commented on her underwear and how she would look in it. Again, it was reasonable in all of the circumstances that Ms D’Andrea would have felt humiliated and offended by his conduct in making such remarks. Therefore, we are satisfied that Mr Jaye, a fellow employee of Ms D’Andrea, subjected her to sexual harassment. Further, Mr Jaye was not only an employee of Studio Silva, he was also its managing director. In his capacity as managing director, he failed to take such steps as may have been reasonably practicable to prevent himself, in his capacity as an employee, from sexually harassing Ms D’Andrea. In his capacity as managing director he authorised and connived at the harassment. Therefore, Mr Jaye has breached Section 87(2) and Studio Silva has breached Section 87(7). Further, Section 87(10) does not relieve Studio Silva of its liability to pay damages. Owing to the findings we have made with respect to contraventions of Section 87, we are also satisfied that Studio Silva is vicariously liable for the sexual harassment committed by Mr Jaye.
In summary, we are satisfied that both Studio Silva and Mr Jaye have breached the Act. We are also satisfied that Ms D’Andrea has suffered loss and damage as a result of those contraventions.
Non Financial Loss
Mr Jaye’s conduct towards Ms D’Andrea caused her significant distress and humiliation: her feelings were injured especially on account of the marked difference in their ages, that he was effectively her employer, and that he persisted in a bid to wear down her resistance. In those circumstances, we are of the view that she is entitled to compensation in the sum of $10,000.
Unpaid wages
Pursuant to her contract of employment Ms D’Andrea was entitled to be paid $1,200 gross per fortnight plus superannuation in the sum of $108 per fortnight, making a gross total of $1,308 per fortnight or $130.80 per working day. There were twelve working days between the 7th and the 22nd of July 2003. Therefore, her lost wages and superannuation entitlements for that period amount of $1,569.60.
Ms D’Andrea is also entitled to be compensated for wages lost between the date of her dismissal by Studio Silva and her obtaining a new position. She lost income between the 23rd of July 2003 and the 30th of November 2003 inclusive. There are ninety three working days in that period. She is entitled to be compensated for lost wages in the sum of $130.80 per day making a total of $12,164.40.
Conclusion
Ms D’Andrea is entitled to receive compensation in the sum of $22,164.40. Studio Silva Photography Pty Ltd and Wayne Jeffrey Jaye are jointly and severally liable for that amount. That is, Ms D’Andrea can claim the compensation from either or both of Studio Silva Photography Pty Ltd and Wayne Jeffrey Jaye.
The order of the Tribunal is that the respondents Studio Silva Photography Pty Ltd and Wayne Jeffrey Jaye pay to Ms D’Andrea the sum of $22,164.00
We make no orders about interest or costs.
RULINGS OF JUDGE BOYLAN
SUMMARY JUDGMENT
Ms D’Andrea applied for summary judgment. In my view summary judgment is not available. These are not civil proceedings in the usual sense. They are akin to proceedings upon complaint in the Magistrates Court. Offences against the Act are summary offences (s.104) and, usually, the complaint would be prosecuted by counsel instructed by the Crown Solicitor (s.95(9)). Further, and decisively, s.24(2) gives the Tribunal power to proceed in the absence of a person who has had notice of the proceedings and who has failed to appear.
Interest and Costs
The Tribunal is a creature of statute, quite distinct from the District Court, and has only the powers given to it by the Act. They do not include a power to award interest. Nor do they include any power to award costs other than in the circumstances set out in Section 26, where the proceedings are vexatious or where they have been instituted or prosecuted for the purpose of delay or obstruction; or, sometimes, on an adjournment. I reject the argument that, had the Parliament intended to limit costs awards only to those situations, it would have said so by making the opening words of Section 26(1) read: “The Tribunal may only make an award for costs …”. The meaning of Section 26(1) is plain. There is no general power to award costs.
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