D v Berkeley Challenge Pty Ltd

[2001] NSWADT 92

CITATION:	D -v- Berkeley Challenge Pty Ltd [2001] NSWADT 92
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Mrs D RESPONDENT Berkeley Challenge Pty Ltd
FILE NUMBER:	991072
HEARING DATES:	07/03/2001, 08/03/2001
SUBMISSIONS CLOSED:	03/08/2001
DATE OF DECISION:	06/05/2001
BEFORE:	Britton A - Judicial Member; Nemeth de Bikal L - Member; Strickland J - Member
APPLICATION:	Sexual Harassment - In workplace - Victimisation
MATTER FOR DECISION:	Principal Matter
LEGISLATION CITED:	Anti-Discrimination Act 1977
CASES CITED:	Shellharbour Golf Course v Wheeler [1999] NSWSC 224 University of New South Wales v Moorhouse (1974-75)133 CLR 1 Falcon v Famous Players Film Co. [1926] 2 KB 474 Shaikh v Commissioner, NSW Fire Brigades (1996) EOC 92-808 Adelaide Corporation v Australasian Performing Right Association Ltd (1928) 40 CLR 481 Lal v President, Anti-Discrimination Board of New South Wales [2000] NSWADT 68 Crewdson -v- President, Anti-Discrimination Board of New South Wales [2000] NSWADT 60 Sivananthan v Commissioner of Police, New South Police Service [2001] NSWADT 44 O’ Callaghan v Loder [1984] EOC 92-023 Reddrop v Boeringer Ingleheim Pty Ltd [1984] EOC 92-031 Waterhouse v Bell (1991) 25 NSWLR 99 Hall v Sheiban (1985) ALR 503
REPRESENTATION:	APPLICANT P Newell, barrister RESPONDENT M Diamond, solicitor
ORDERS:	1. That the respondent pay the complainant within twenty-one days of the date of this decision the sum of $26,800.

Reasons for Decision

1 The complainant, Mrs D, was born in Greece and migrated to Australia in 1971. She commenced employment as a cleaner with the respondent, Berkeley Challenge Pty Ltd in January 1995, and left in mid-1998. Mrs D makes three complaints. First that she was subjected to sexual harassment contrary to s 22B of the Anti-Discrimination Act (NSW) 1997 (the Act); second, this harassment constituted unlawful discrimination on the grounds of sex in the area of employment contrary to the relevant provisions of s 25 of the Act; and third, that the respondent victimised her on the grounds that she had complained that she had been sexually harassed, in breach of s50 of the Act.

2 Mrs D made a complaint through her legal representatives, to the Anti-Discrimination Board (ADB) on 9 November 1998 alleging sexual harassment and victimisation in her employment with Berkeley Challenge. On 1 July 1999 the complainant wrote to the Board requesting that the matter be referred to the Equal Opportunity Division of the Administrative Decisions Tribunal. By letter dated 22 July 1999 the President of the Board referred Mrs D’s complaint to the Tribunal under s 94(1) of the Act.

Relevant provisions of the Act

3 Mrs D’s first complaint relates to sexual harassment. Part 2A of the Act prohibits sexual harassment in certain areas. Section 22B(2) makes it “… unlawful for an employee to sexually harass a fellow employee or a person who is seeking employment with the same employer”.

4 Section 22A defines sexual harassment to mean:
For the purposes of this Part, a person sexually harasses another person if:
(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 offended, humiliated or intimidated.

5 The second complaint, relates to an allegation of direct discrimination on the ground of sex. The test of direct discrimination on the ground of sex is set out in s24 of the Act and provides:
What constitutes discrimination on the ground of sex
(1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of sex if, on the ground of the aggrieved person's sex or the sex of a relative or associate of the aggrieved person, the perpetrator:
(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


6 Sub-section 25(2) provides that it is unlawful for an employer to discriminate against an employee on the grounds of sex:
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.

7 Section 53 of the Act is headed “Liability of principals and employers” and provides:
(1) An act done by a person as the agent or employee of the person's principal or employer which if done by the principal or employer would be a contravention of this Act is taken to have been done by the principal or employer also unless the principal or employer did not, either before or after the doing of the act, authorise the agent or employee, either expressly or by implication, to do the act.
(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.
(4) …

8 Section 50 of the Act provides:
50. Victimisation
(1) It is unlawful for a person ("the discriminator") to subject another person ("the person victimised") to any detriment in any circumstances on the ground that the person victimised has:
(a) brought proceedings against the discriminator or any other person under this Act, (b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act,
(c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or
(d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person, or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.
(2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith.


Undisputed facts

9 Mrs D was born in Rhodes, Greece but grew up in Cyprus. At age fifteen she migrated to Australia. The respondent is in the business of contract-cleaning. At all relevant times it was contracted to provide cleaning services to Lewisham and Wilkins Public schools and other schools in the Sydney area.

10 In January 1995 the complainant commenced work as a cleaner with the respondent. From February 1998 to June 29 of that year she was based at Lewisham Public School ( the relevant period). She was employed to work “split shifts”, working Monday to Friday, three hours each morning, before school commenced; and at the conclusion of the school day for a further two and a half hours.

11 Patrick Herrera and Anna Alexakis were also employed by the respondent as cleaners at Lewisham Public School throughout the relevant period, Mr Herrera, as head cleaner. At all relevant times Peter Plarinos was the Customer Services Manager responsible amongst other things for managing the respondent’s cleaning staff based at Lewisham school. His supervisor was Regional Manager, Ken Cope. Mr Plarinos was not based at Lewisham Public School but visited it, and other schools, from time to time. Monthly meetings were held between Mr Plarinos and the Lewisham cleaners to discuss operational matters.

12 On the morning of 29 June 1998 Mrs D complained to police that she had been assaulted by Mr Herrera. Mr Plarinos was advised of the alleged assault by the police and went immediately to Campsie police station where Mrs D had just given a statement. Later that afternoon Mrs D returned to the school and was advised by Mr Plarinos that until the police investigation was concluded, she would be stood down on full pay.

13 A letter addressed to Mrs D dated 30 June 1998 from the respondent stated: “ Further to our discussion this afternoon, I am now confirming in writing my verbal instructions and decisions as promised. Because of constant bickering and arguing with fellow cleaners the situation at Lewisham Public School has become unworkable and you are ordered to immediately stop working at that site. I will contact you by Friday 3.7.98 afternoon as to advise further instructions about your employment.”

14 A second letter, dated 3 July 1998 from the respondent to Mrs D headed “Disciplinary transfer” read:
“Please be advised that from Monday 13 July 1998, you are transferred to a relief cleaning position on a day- to-day basis. This means that your supervisor will be in touch with you regarding which site you are required at. I am confirming in writing that you are not dismissed as you mentioned in the telephone conversation with me on Thursday, 2 July, 1998 around 4.30pm.
Please be advised in the strongest terms, not to involve clients, teaching staff or fellow workers in any argument, accusations or problems. If this is to happen again, you will no longer be called on relief duties.
Please call me on Friday 10 July…to advise you on which site you will be required.”

15 Mrs D started at Wilkins Public school on 13 July 1998. Her last day of work with the respondent was 28 July 1998.

16 Following the 29 June incident Mr Herrera was transferred to West Marrickville Public School.

Evidence

17 While in this decision we have not referred to all evidence we have taken into account all relevant evidence.

18 Mrs D’s evidence is that almost immediately after commencing at Lewisham Public School Mr Herrera began annoying her, initially by asking for money. She complained to Mr Plarinos. According to Mrs D, Mr Plarinos appeared to be sympathetic and in April organised a meeting of the cleaners working at Lewisham school where Mr Herrera’s work, and other issues, were discussed.

19 According to Mrs D her relations with Mr Herrera did not improve after this meeting. He started to turn off lights while she was working alone in the early morning, while it was still dark. Mrs D claims she told Mr Plarinos about these incidents.

20 On or about June 15 1998 while working alone in the school hall, Mrs D claims Mr Herrera appeared suddenly and shouted “ what are you doing here?” and grabbed her cleaning equipment, locking it away. She claims she started to ring Mr Plarinos but Mr Herrera grabbed her mobile phone saying: “Don’t you call Plarinos. Because I will kill you, you fucking idiot.” According to Mrs D, after this incident Mr Herrera threatened her virtually on a daily basis.

21 Mrs D claims that while working alone on Thursday 25 June at about 6.15am, Mr Herrera turned off the lights and she was afraid; without warning Mr Herrera attacked her with what she understood to be a plastic vibrator and attempted to thrust it into her mouth. She claims she ran from the room and was followed by Mr Herrera who yelled, “come back you fucking idiot or I will kill you. I’ll kill Plarinos.” She said she immediately rang Mr Plarinos and left a message on his answering machine. Some time later that morning Mr Plarinos arrived accompanied by supervisor, Mr Albano and a meeting was held, attended by Messrs Plarinos, Herrera and Albano and herself. According to Mrs D, she told the meeting about the June 15 incident and said “[Herrera] is making life hell for me” but was cut short by Mr Plarinos before she could tell him about that morning’s incident. According to Mrs D, Mr Plarinos told her he did not want to hear further from her but said he would send a counsellor the next day so that the matter could be sorted out.
22 According to Mrs D on Monday morning, 29 June, Mr Herrera again attacked with what she though to be a plastic vibrator, which he attempted to thrust in her mouth. She screamed and ran from the kindergarden where she had been working; she was chased by Mr Herrera. Her co-worker Anna rang Mr Plarinos and told him to come quickly. According to Mrs D, Mr Albano arrived shortly after and laughed at her. She said she then went to the police where she was interviewed by Greek speaking officer, Constable Mitropoulos at Campsie Police station.

23 In cross-examination Mrs D agreed that there had been a police officer in the school yard on the morning of 29 June. She told him something serious had happened but gave no details. Her evidence was that she preferred to speak to a Greek speaking police officer as her English was limited.

24 The evidence of Mr Plarinos, the only witness called by the respondent, differs from that of Mrs D in a number of critical respects. First, he says that he was unaware of any ill-feeling between Mrs D and Mr Herrera until a few days prior to June 25, when he was contacted by the principal of Lewisham school who asked him to visit the school as soon as possible to sort out the apparent problem between Mrs D and Mr Herrera.

25 Second, he denied Mrs D’s claim that she contacted him at various times prior to June 25 complaining about Mr Herrera. His evidence was that at no time during the regular monthly meetings held in March, April and May was any problem between the cleaners raised. His recollection was that these meetings were friendly; he did not detect any ill-feeling.

26 Third, his recollection of the June 25 meeting differs from that given in evidence by Mrs D. He recalled that at that meeting Mrs D accused Mr Herrera of changing her hours and making her do work she did not want to do; and in turn Mr Herrera accused Mrs D of refusing to co-operate at work. He denies that the complainant raised the alleged June 15 incident, or said that something serious had happened that morning, or, made any suggestion of abuse or intimidation on the part of Mr Herrera.

27 Fourth, he claims he first heard of the alleged assault(s) on 29 June when he was contacted by Constable Mitropoulos, and was not contacted by Mrs D by phone.

28 Mr Plarinos’ evidence was that after meeting with Constable Mitropoulos on Monday June 29 he went immediately to the school where regional manager, Ken Cope, met him. Mr Herrera was paged; he attended the school and was advised of the allegation against him. Mr Plarinos then conducted a search of Mr Herrera’s office, car and locker but not the lockers of other staff. No dildo or similar object was found. According to Mr Plarinos he then advised Mr Herrera that the matter was being investigated by the police to which he [Herrera] replied “…this allegation is bullshit. I cannot understand why D has said it. It is absolutely crazy.”

29 Mr Plarinos’ evidence was that following the June 29 incident both employees were advised they had been stood down on full pay until the police investigation was complete. Mr Plarinos’ evidence was that he made clear to Mrs D that she was not dismissed and said“…we will look and see where else we can place you to get away from here”.

30 In cross-examination Mrs D conceded she did not press charges against Mr Herrera in relation to the dildo incident, although she did make enquiries from to time to time on the status of the investigation.

Events pre- June 1998

31 Mr Plarinos gave evidence that in March 1998 he was contacted by Mr Herrera who said that Mrs D reported to him that she had been chased through the school by an unidentified man. The police were called to investigate. In cross-examination Mrs D said she omitted to refer to this incident in her statement as she was of the view that it was not relevant to the complaint before the Tribunal.

32 In cross-examination Mrs D said that about a week before the June 25 incident she had seen Mr Herrera entering the school at about 2am on a Saturday morning. She had been driving by with her husband, returning from a night out. She suspected he had stolen computer equipment and reported this to Mr Plarinos the following Tuesday.

Events after 29 June

33 Mr Plarinos gave evidence that Mrs D rang him on 2 July and said “ Peter can I get another job. When you sacked me on Monday I did not know what to do”. According to Mr Plarinos, he then assured the complainant she had not been sacked, only transferred, and said: “Denise I have to tell you that whether you go on relief or to another permanent posting we cannot have a repetition of what happened at Lewisham. We can’t have these sorts of allegations and stuff going on because it would make it impossible for us to keep you…”

34 In cross-examination Mr Plarinos did not agree with the proposition, that the transfer to Wilkins as a Relief cleaner constituted a demotion. The same pay and conditions applied; Wilkins was only a kilometre from Lewisham public; Mrs D retained her permanent employment status. Further he denied that the 3 July letter to Mrs D could be construed as a warning but could not explain why the letter was headed “disciplinary transfer”, it may have been a typographical error, he did not write the letter.

35 Mr Plarinos gave evidence that he met with Constable Katsigianos in the week after the June 29 incident to receive an update on the progress of the investigation. According to Mr Plarinos, Constable Katsigianos said “ Mrs D has made quite a number of allegations about Mr Herrera including an allegation about that she saw him climbing out of the school window at 1 or 2am. We have been looking at these allegations and have been unable to substantiate any of them. We have asked her whether she wishes to press charges and she has told us she does not. Because she does not want to press charges we have to let the matter drop.”

36 Mr Plarinos gave evidence that on July 28 he met with the cleaners at Wilkins public school and, following that meeting, he was approached by Mrs D who said “I don’t think I should even be here. It is only because of the problem at Lewisham that I was put here in the first place.” According to Mr Plarinos, Mrs D said she felt like resigning as she was being blamed for the incident; his evidence was that he assured her she was not, and urged her to think carefully before making any decision and if she did decide to resign to put this in writing. His evidence is that she gave no indication that she was ill or stressed.

37 Mrs D denied saying to Mr Plarinos that she was thinking of resigning but said in evidence that she did tell him she felt ill and was under stress.

38 According to Mr Plarinos the day following his visit to Wilkins school he was contacted by Mr Pannagiotikas, the head cleaner at that school, who told him that [the day before] Mrs D had handed in her keys, and said she would not be coming back. Mr Pannagiotikas was not called to give evidence.

39 Mrs D denies telling her supervisor she had resigned and would not be returning. Rather her evidence was that she advised Mr Pannagiotikas that she felt ill and was going home and asked him to advise Mr Plarinos. She said she handed Mr Pannagiotikas her work keys, as it had been her understanding that cleaners were required to remit their keys, when absent from work. Later that day, she said, she went to Bankstown Medical Centre and was issued with a medical certificate, certifying her unfit for work for one week.

40 According to Mr Plarinos, after hearing of the complainant’s resignation he deferred taking any action as, at that time, he was not convinced she was serious about resigning. After not hearing anything for about a week he instructed the payroll office to terminate her employment on the grounds that she had abandoned her position. In cross-examination, Mr Plarinos could not explain why the respondent’s Human Resources Manager, Mr Cross, stated in a letter to Mrs D’s legal representatives dated 20 November 1998, that the respondent terminated her on 29 July 1998, and not, as claimed by him in evidence, about a week after that date. He insisted that Mrs D’s employment was not terminated until about a week after July 29.

41 Mr Plarinos’ evidence was that after he took the decision to terminate Mrs D, he received in the mail a medical certificate from the complainant. According to Mr Plarinos the certificate was “back dated” and from that he formed the view, in consultation with Mr Cope, that the certificate was contrived.

42 In cross-examination Mr Plarinos could not explain why the respondent’s file on Mr Herrera contained no material about the 29 June incident.

43 The complainant’s husband, Mr D, gave evidence by way of affidavit and was not required for cross-examination. He attested that about a week after his wife had started at Wilkins public school, his wife was not well and had been to the doctor. He unsuccessfully attempted to telephone Mr Plarinos. He later rang Mr Cope and said his wife was sick. According to Mr D, Mr Cope had replied, “ Why are you ringing me? Her boss is Peter Plarinos. Don’t bother me.”

Respondent’s policy on sexual harassment

44 Mr Plarinos’ evidence was that he was aware the respondent had a policy on sexual harassment ( the policy) but was not familiar with its details. He did not refer to this policy after hearing of Mrs D’s complaint on June 29 as he was of the opinion that Mr Cope, his senior, was familiar with its details. In cross- examination he was asked why he did not carry out an investigation into the complainant’s allegations and replied that he had left the matter in the hands of the police. He agreed that, following the making of the allegation, no notes were taken of any interview or meeting with either Mrs D or Mr Herrera. He had not interviewed any staff in relation to the allegation but thought Mr Cope may have, although he had no knowledge of this.

45 Mr Plarinos gave evidence that it was his understanding that on commencement all new employees were given a copy of a booklet setting out the respondent’s policy on sexual harassment but he had no knowledge whether the complainant, or her alleged harasser, had in fact received one. It was his understanding that this booklet was in English only. He could not recall if he had at any time, discussed the respondent’s policy on sexual harassment with either Mr Herrera or Mrs D. It had not been discussed at any staff meeting or any other meeting of the respondent’s cleaning staff based at Lewisham Public School throughout the relevant period. He agreed that at no time after the June 29 incident did he bring to Mrs D’s attention, the provisions of the policy relating to grievance procedures.

46 Mrs D’s evidence was that she did not receive any material from the respondent about its sexual harassment policy nor had she been briefed by anyone on its contents at any time throughout the course of her employment. She described her command of written English as limited.

Sexual harassment complaint

47 The complainant alleges that she was sexually harassed by her immediate boss, Patrick Herrera. Section 22B (2) of the Act makes it unlawful for an employee to sexually harass a fellow employee.

48 Mr Newell for the complainant argues that the uncontroverted evidence of Mrs D establishes that she was attacked on three occasions by co-worker, Herrera. Her claims in respect of Mr Herrera’s behaviour were not challenged by the respondent in cross-examination. Nor did the respondent call Mr Herrera as a witness to refute her evidence, and from this, the Tribunal is entitled to draw the conclusion that his evidence would not have assisted the respondent’s case.

49 Mr Diamond for the respondent submits that the complainant has failed to establish, to the requisite standard, that the alleged incidents involving Mr Herrera, in fact occurred. He asserts that Mrs D is not a reliable witness. He argues that her allegations concerning Mr Herrera must be treated with caution and cannot be viewed in isolation from a pattern of behaviour involving a line of other unsubstantiated allegations. Importantly, her claim that she complained to Mr Plarinos, prior to, and on June 25, is unsupported, and, directly contradicted by Mr Plarinos.

50 Further, submits Mr Diamond, the Tribunal must have regard to the fact that despite a complaint being made to the police, charges were not laid, and no evidence of a plastic dildo (or similar object) uncovered.

51 Mrs D’s evidence in relation to the alleged incidents involving Mr Herrera was uncorroborated but uncontradicted. That there were no witnesses to the three alleged attacks is not surprising given the isolated environment in which Mrs D, and her colleagues, worked. After all, the three cleaners worked alone in a large area, starting work before the teaching staff arrived and commencing their afternoon shift after the school day was over. Nevertheless, while it is entirely understandable that the alleged incidents may not have been witnessed, the fact remains that there is little supporting evidence before the Tribunal to support Mrs D’s complaint. It does not automatically follow however, that the Tribunal must reject Mrs D’s evidence concerning the alleged incidents on the basis that it is uncorroborated.

52 We further note, that while not a witness to any of the alleged incidents, Ms Alexakis, the cleaner at Lewisham school to whom Mrs D claims she ran after the alleged 25 and 29 June incidents, was not called by either party to give evidence, nor any explanation offered for this. Of course, it may be that Ms Alexakis might truthfully refute Mrs D’s claim that she complained to her, but if that is so, why would Mrs D claim to have told Ms Alexakis? Certainly, while it is not unheard of for complainants to claim to have complained contemporaneously to others who truthfully refute them, it is, in our experience, unusual for such false claims to be made.

53 We do not propose to speculate about the reasons for Ms Alexakis’ absence, but there are a number of possible explanations which occur to us. One obvious reason a person in Ms Alexakis’ position may be a reluctant witness is that for her to give evidence would be to place her in confrontation with her employer. Whether this is the reason she has not been called we do not know, but we are not inclined to draw an inference that her truthful evidence would not assist Mrs D.

54 For the respondent it was suggested that the claims made by Mrs D that she had seen Mr Herrera emerging from the school with a computer, and that she had been chased by a dark man, were so fantastic that nothing she said in relation to the substantive complaints could be believed. If we took the view, as the respondent’s submissions imply we ought, that Mrs D was hell-bent on implicating Mr Herrera for no good reason, then, absent corroborating evidence, we would have to take a very sceptical approach to her complaints.

55 But the evidence is not so simply dismissed. It is not unknown that schools are subject to intrusion and theft. Why is it incredible that Mrs D was chased or threatened by a “dark man” who disappeared before the police arrived? The fact that she asserts that this happened does not necessarily prove that it did, but it is not so inherently implausible that one would dismiss the assertion out of hand. Rather, it is the reverse. Unless we were satisfied that Mrs D is a determined liar, there is no particular reason to reject that story. Even if we were suspicious of her, it would be wrong and imprudent to reject the story outright. At worst we could only find that the assertion was unsubstantiated.

56 Similarly, in relation to Mrs D’s claim that Mr Herrera stole computer equipment from the school, it is noted that the respondent did not adduce evidence proving that the equipment had never been stolen. It would have been open to the respondent to destroy Mrs D’s credit comprehensively by adducing such evidence if it was available. It is possible that she saw Mr Herrera as she said. It is possible that she saw someone else and thought that it was Mr Herrera. It is possible that she saw someone else and decided to falsely identify Mr Herrera. It is also possible, as noted previously, that she seized the opportunity offered by the theft, not having seen anything, to accuse Mr Herrera falsely. How can we be satisfied one way or the other, especially as we have not seen Mr Herrera? The claim, again, is not so inherently implausible as to seriously undermine Mrs D’s credit.

57 The respondent did not call either Mr Herrera, or Mr Albano to collaborate Mr Plarinos’ evidence. It is simply astonishing that Mr Herrera, if he was available, was not called to give evidence, or, if he was not available, that no explanation was proffered to account for his absence. We can reasonably assume that Mr Herrera was unlikely to confess to the misdeeds alleged against him, but presentation of him for cross-examination to enable the Tribunal to make a comparison between him and Mrs D was, we would have expected, a pivotal element of the respondent’s defence to the complaint. Unaccountably, its key witness was not called. The failure of the respondent to call area supervisor, Mr Albano, or to offer any explanation for this, was also surprising, given that he was a material witness on some issues which went to the credibility of Mr Plarinos. In the absence of any explanation for not calling these critical witnesses, we are driven to the conclusion that the respondent lacked confidence in them as witnesses who would advance the respondent’s case.

58 Mr Plarinos emphatically denies Mrs D’s claim that she complained to him about Mr Herrera prior to June 25. No doubt the passage of time has taken its toll on the memory of both witnesses. Neither witness had the benefit of contemporaneous notes, which may have assisted their respective recollection of events. Also it appears to us that Mrs D’s account, given in evidence, of what she told Mr Plarinos may be both clearer and more detailed than her actual report at the time, suggesting that to some degree at least her evidence is reconstructed. Even so, it may not be rejected outright if we are satisfied it is substantially true or plausible.

59 Mr Plarinos’ evidence that he did not detect any problems between the Lewisham cleaners during the March, April and May staff meetings and that he recalled that they were apparently getting on well throughout this period, stands in direct conflict with the letter of Human Resource Manager, Steve Cross dated 20 November 1998, to the complainant’s legal representatives. Written soon after Mrs D ’s departure from the respondent’s employ, it states: “Mrs D and other cleaners at Lewisham Public School had been under disciplinary discussions as far back as 16 March 1998. There were performance issues including arguing and bickering that had been brought to our attention by the school principal.”

60 On its own, this letter does not prove that Mrs D complained to Mr Plarinos, or that she did so in the terms described in her evidence. However it is broadly consistent with Mrs D’s account that she complained about her colleague to Mr Plarinos and stands in direct conflict with Mr Plarinos’ version of events which claimed that the cleaners at Lewisham were one big happy family [at least prior to June 25].

61 We have before us no reliable evidence as to why the police did not prosecute. It may be, as suggested by Mr Diamond, that the police did not accept the veracity of Mrs D’s claim; it may be, that there was simply insufficient evidence to obtain a conviction applying the criminal standard of proof; it may be that the police investigation (of which we have no details) was inadequate. We simply do not know. At best, such evidence is a form of opinion evidence, offered on what basis we do not know, by whom we do not know, taking into account what evidence and criteria we do not know. The failure of the police to proceed to charge Mr Herrera, in our view, is irrelevant in these proceedings and can carry no weight at all in the assessment of Mrs D’s credibility.

62 Mr Diamond urges the Tribunal to place considerable weight on the fact that Mrs D did “not press charges” against Mr Herrera. Mrs D concedes in cross-examination that she did not “ press charges” but insists that on a number of occasions following June 29, she checked with the police on the status of the matter. The evidence is not altogether clear on this point. On one hand Mrs D said in cross-examination she did not “press charges”, on the other she says she made a number of enquiries of police.

63 Mr Diamond also submits that Mrs D’s claim should be viewed with suspicion given that the dildo she alleged was used in the 25 and 29 June assaults was never found despite a search being conducted. However the search was not conducted until about midday on the day of the incident by which time Mr Herrera had been gone from the school for over two hours. In addition the evidence shows that the search was somewhat limited. Accordingly we place little weight on the failure to locate the alleged dildo.

64 While Mrs D did complain to the police about Mr Herrera, this complaint evidence does not of itself prove that the alleged misconduct in fact occurred. It is but one fact for us to take into account in our determination of the issue. The Briginshaw standard sets a relatively high evidentiary hurdle, requiring us to be comfortably satisfied that the alleged incidents in fact occurred. It is insufficient for the complainant merely to identify or prove inconsistencies or inadequacies in the respondent’s case.

65 However, taking into account all the circumstances of this case, we are comfortably satisfied that on June 29 Mrs D was attacked by Mr Herrera. In reaching this conclusion we note that Mrs D’s account of this incident is supported by complaint evidence; her account of this incident is uncontradicted; the respondent elected not to call her alleged assailant and gave no reason for this. She appeared to us to be a credible witness, although we were denied by the respondent the inestimable advantage of comparing her with Mr Herrera.

66 In relation to the two earlier incidents we are not reasonably satisfied to the Briginshaw standard that the evidence objectively establishes that they in fact occurred in the manner described by Mrs D. Given the circumstances in which the alleged misdeeds are claimed by Mrs D to have taken place, and the consequent possibility of honest error on her part, it seems to us that the evidence raises a high degree of suspicion that Mr Herrera may have done something untoward to Mrs D on those dates (and earlier) but in the absence of any supporting evidence we cannot be comfortably satisfied that they occurred in the way described by the complainant, or what precisely took place.

67 Having accepted Mrs D’s account of the 29 June incident, it remains for us to determine whether these incidents fall within the definition of sexual harassment as contained in s 22A of the Act.

68 To constitute sexual harassment, the complainant must prove on balance that Mr Herrera’s assault on June 29, first, was conduct of a sexual nature; second, was unwelcome; and third, was such that a reasonable person would have anticipated that she would be offended, humiliated or intimidated.

69 In our view there is only one conclusion that can be drawn from Mrs D’s account of the June 29 incident, where an object which she understood to be a dildo, was thrust into her face: that is, it represents an unsolicited and unwelcome assault of a sexual nature. The evidence does not conclusively establish that the object was a dildo, but in our view this is immaterial: an attempt to thrust an object, whether or not it was a dildo, into a woman’s mouth in the circumstances as described carries with it a clear sexual inference. Mrs D’s evidence, which we accept, is that she was terrified. It is self-evident, that the third element of the definition has been made out, namely that in the circumstances a reasonable person would have anticipated that Mrs D would be offended, humiliated and intimidated.

70 Accordingly we are satisfied that Mr Herrera’s conduct in relation to the June 29 incident constitutes sexual harassment within the meaning of s 22A of the Act.

Sex Discrimination Complaint

71 The complainant contends that Mr Herrera’s conduct also represents unlawful sex discrimination, contrary to the provisions of ss 25(2)(a) and 25(2)(c) of the Act, for which the respondent is liable by virtue of the operation of s53.
72 It may be that this conduct also constitutes unlawful sex discrimination. However given our findings in relation to the sexual harassment complaint, it is unnecessary for us to consider this further.

Liability of the respondent

73 Mr Herrera is not named as a respondent in this matter. The claim is brought against the respondent, Berkeley Challenge Pty Ltd alone. Accordingly, to establish liability in respect of the acts of unlawful sexual harassment, it must be established that the respondent was in fact liable for the acts of Mr Herrera.

74 Section 53(1) of the Act provides that an employer will be liable for the acts of their employee which amount to a contravention of the Act, “ unless the… employer did not, either before or after the doing of the act, authorise the… or employee, either expressly or by implication, to do the act.”

75 The operation of s53(1) was considered in some detail in Shellharbour Golf Course v Wheeler [1999] NSWSC 224. In that decision at [33] Studdert J said: “… as I construe s53(1) 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.”

76 Mr Justice Studdert went on to consider the meaning of the word “authorise” in the context of s53(1) of the Act. He referred to the High Court decision, University of New South Wales v Moorhouse (1974-75)133 CLR 1 where the meaning of “authorize” in the setting of s 36 of the Copyright Act was considered and quoted the following passage from the judgement at Gibbs J at 12-13:
“The word ‘authorize’, in legislation of similar intendment to s 36 of the Act, has been held judicially to have its dictionary meaning of ‘sanction, approve, countenance’: Falcon v Famous Players Film Co. [1926] 2 KB 474 at 491' Adelaide Corporation v Australasian Performing Right Association Ltd (1928) 40 CLR 481 at 489, 497… It can also mean ‘permit’, and in Adelaide Corporation v Australasian Performing Right Association Ltd (1928) 40 CLR 481 ‘authorize’ and ‘permit’ appear to have been treated as synonymous. A person cannot be said to authorize an infringement of copyright unless he has some power to prevent it: Adelaide Corporation v Australasian Performing Right Association Ltd (1928) 40 CLR at 497-498, 503. Express or formal permission or sanction, or active conduct indicating approval, is not essential to constitute an authorization; `Inactivity or “indifference, exhibited by acts of commission or omission, may reach a degree from which an authorization or permission may be inferred”’: Adelaide Corporation v Australasian Performing Right Association Ltd (1928) 40 CLR at 504. However, the word ‘authorize’ connotes a mental element and it could not be inferred that a person had, by mere inactivity, authorized something to be done if he neither knew nor had reason to suspect that the act might be done. Knox CJ and Isaacs J referred to this mental element in their dissenting judgments in Adelaide Corporation v Australasian Performing Right Association Ltd . Knox CJ (1928) 40 CLR at 487 held that indifference or omission is ‘permission’ where the party charged (amongst other things) ‘knows or has reason to anticipate or suspect that the particular act is to be or is likely to be done'. Isaacs J apparently considered that it is enough if the person sought to be made liable ‘knows or has reason to know or believe’ that the particular act of infringement `will or may' be done.”

77 In declining to adopt a narrow interpretation of the words “authorise” Studdert J said at [58]:
“... the broad concept of "authorise" reflected in the above passage has been frequently applied for the purposes of statutory construction under the copyright legislation. For present purposes, bearing in mind the nature of the Anti-Discrimination Act, I consider that the word "authorise" should be given an equally broad meaning to that given to the word in the copyright cases. Accordingly, it seems to me that for the purposes of s53 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.”

78 At all relevant times Mr Herrera’s misconduct in respect of Mrs D occurred during normal working hours at his usual place of work while acting in the discharge of his duties as an employee of the respondent. Accordingly by virtue of the operation of s 53(1) of the Act his misconduct will be taken to have been done by the respondent unless, it can be established, that the conduct was unauthorized either expressly or be implication. It is for the respondent to prove that Mr Herrera’s acts were unauthorized.

79 It is not contended that the respondent expressly authorised the acts of Mr Herrera. Rather Mr Newell submits that the failure of Mr Plarinos, or any other member of the respondent’s management team to act, amounted to authorisation by implication.

80 The threshold issue for us to determine is whether Mr Plarinos was aware, or in all the circumstances ought reasonably to have been aware, of the emerging problem between the complainant and Mr Herrera. As discussed, Mr Plarinos’s claim that the first he knew of any problem between the two was when advised by the principal a few days prior to the June 25 meeting is not accepted by us. We prefer the complainant’s evidence on this point.

81 The respective accounts given by Mr Plarinos and Mrs D of what took place at the June 25 meeting, conflict. Mr Plarinos’ rationale for the divergent accounts is that Mrs D must have confused that meeting with the one held in April, (but the reverse could, of course, also be true). Mr Plarinos insists, that at the June 25 meeting Mrs D, did not accuse Mr Herrera of intimidating her; nor did she report the alleged June 15 attack; nor did she say anything about an “alleged serious matter that had happened that morning.”

82 We do not accept Mr Plarinos’ evidence that this was simply a routine meeting where operational matters effecting Mr Herrera and Mrs D were discussed. After all, on his own evidence, the reason for the meeting was that he had been contacted by the school principal who insisted he attend the school to “sort out” the problem between Mr Herrera and Mrs D. While this evidence does not of itself support Mrs D’s account, it does show that the “problem”, however defined, was noticeable to such an extent that the principal considered it warranted her intervention. Further, as previously noted, the respondent has chosen not to call Mr Albano, who attended the meeting, to corroborate the evidence of its sole witness on this material issue.

83 In the absence of supporting evidence we are not comfortably satisfied that Mrs D gave the clear and unambiguous report of the alleged June 15 and June 25 incidents as contained in her affidavit evidence. We suspect that her evidence on this point may to a degree have been reconstructed. But taking into account all the evidence we are comfortably satisfied that at the meeting Mrs D did indicate that she felt intimidated and threatened by Mr Herrera and raised issues concerning his behaviour towards her.

84 Can it be said that Mr Plarinos’ failure, to take action after being advised by Mrs D of her concerns, amounted to authorisation of Mr Herrera’s misconduct by implication? The evidence is not clear as to why Mr Herrera ignored Mrs D’s concerns. There is nothing before us that would indicate that Mr Plarinos condoned sexual harassment. Why then did he take no action? It may be that he doubted the veracity of Mrs D’s allegations and dismissed them as yet another example of staff bickering; alternatively, he may have genuinely underestimated the seriousness of Mrs D’s concerns.

85 While it maybe unclear why Mrs D’s complaint was ignored, the evidence shows that on June 25 (and before) Mr Plarinos was in effect wilfully deaf to Mrs D’s predicament. Prior to that meeting he had been put on notice that the complainant was concerned about Mr Herrera’s behaviour. Despite Mrs D again raising her concerns in relation to Herrera at the June 25 meeting, Mr Plarinos took no steps to either interview her, or other staff members.

86 We note that the respondent’s policy on sexual harassment puts its managers on notice of the particular vulnerability of female employees working in isolated environments. The policy exhorts the respondent’s managers to “ Be aware of potential difficult situations (eg male supervisor of female staff, especially working alone at night).” This was the very situation that confronted Mrs D and yet her managers choose to ignore her concerns or at best failed to recognise the warning signs. His failure to take any steps following these complaints in our view amounts to inactivity and indifference, sending a signal, no doubt unintentionally, to Mr Herrera, that his employer was dismissive of her complaints.

87 Mr Justice Studdert makes clear in Shellharbour Golf Course v Wheeler at [74] that to avoid liability under s53(1) the respondent must prove it did not authorize the agent to contravene the Act at any time. This means that the acts of the respondent, both before and after the misconduct, are relevant to a determination of whether the Mr Herrera’s misconduct was authorised.

88 Mr Diamond contends that the respondent in separating the two employees did take effective action after it became aware of the complaint. However, as discussed, while the employees were separated, an entirely appropriate response in the circumstances, the evidence also reveals that Mrs D was effectively demoted and placed on probation. The evidence also shows that the respondent took no steps to investigate the June 29 complaint, bar a search for the alleged vibrator after the incident and putting the allegation to Mr Herrera. Nor is there any evidence that would indicate that following June 29, Mr Herrera was counselled, disciplined or at the very least provided with some education or training in relation to the respondent’s policy on sexual harassment. Taken as a whole, there is nothing in the respondent’s conduct after June 29 which would objectively indicate that sexual harassment was not condoned or, at the very least, that a complaint about such behaviour would be subject to rigorous investigation.

89 In our view the respondent has not proved that it did not authorise by implication Mr Herrera’s misconduct either before or after the June 29 incident. Accordingly we find that the acts of the respondent amounted to implied authorization of Mr Herrera’s misconduct.

90 We turn now to whether the respondent can rely on the defence set out in s53(3) of the Act which provides that despite s53 (1), an employer may avoid liability if it took all reasonable steps to prevent the … employee from contravening the Act. It is for the employer to establish on balance that all reasonable steps were taken.

91 At all relevant times the respondent had a policy on sexual harassment. Details of this policy are set out in a management document entitled “Sexual Harassment” which was tendered in evidence in this inquiry. The document broadly defines sexual harassment and makes clear such conduct will not be tolerated. It sets out clear procedures for managers to follow in dealing with a complaint of sexual harassment. The policy states “any complaint or report of sexual harassment will be treated quickly, seriously and sympathetically. They will be investigated thoroughly, impartially and confidentially. Managers, supervisors and human resource staff must act immediately on any reports of sexual harassment.”

92 Mr Plarinos claims that the reason no internal investigation was undertaken was that the matter was in the hands of the police. There is nothing in the policy, which would suggest an internal investigation should be deferred or not undertaken at all merely because it was under police investigation.

93 The evidence makes clear that line manager Plarinos had at best a cursory knowledge of the policy. Even if as claimed by Mr Plarinos, senior members of the respondent’s management team were charged with specific responsibility for its implementation, there is no evidence to show that after June 29 the complaint was effectively handled by either Mr Cope or someone else on behalf of respondent. In addition, the evidence shows, that at least in relation to Lewisham school, the respondent did not take reasonable steps to acquaint its employee cleaners and managers of the policy and their respective rights and obligations under it.

94 Mr Plarinos’ evidence is that he had never discussed the respondent’s policy with either Mrs D or Mr Herrera. Nor had it been discussed at any staff meeting held at Lewisham school during the relevant period. He understood that new employees started they were handed a pamphlet setting out the company’s policy but had no knowledge of whether Mrs D or Mr Herrera had actually received a copy.

95 Mrs D’s clear evidence accepted by us, was that she was ignorant of the policy’s existence and was not provided with any information about it, at any time, during her four years with the respondent. Even had she received the pamphlet referred to by Mr Plarinos this would have been of little value as her command of written English was poor.

96 It is not enough for an employer seeking to rely on the s53(3) defence to merely show that it had in existence a policy discouraging sexual harassment. The s53(3) defence makes clear that to escape liability the employer “ took all reasonable steps to prevent the… employee from contravening the Act ” ( our emphasis). Having a policy, however commendable, that is not implemented falls a long way short of establishing that all reasonable steps were taken. In the absence of any reasonable steps to discourage sexual harassment in the Lewisham workplace, other than the formal existence of a policy that was not implemented we conclude that the respondent cannot rely on the s53(3) defence.

97 Accordingly by operation of s 53(1) of the Act the respondent is liable for Mr Herrera’s misconduct, namely the June 29 incident that constitutes a contravention of the Act (s 22B (2).)

Victimisation Complaint

98 Mrs D asserts that the respondent’s decision to transfer her to the position of relief cleaner and her subsequent alleged dismissal constitutes acts of victimisation, unlawful by virtue of the operation of s 50 of the Act.

99 In Shaikh v Commissioner, NSW Fire Brigades (1996) EOC 92-808, the former Equal Opportunity Tribunal set out at p 78,986, what it described as the four-fold elements of victimisation.
“Firstly, the respondent must have caused the applicant to undergo or experience something. Secondly, the applicant must have suffered some consequential detriment in any circumstances. Thirdly, that detriment must have occurred on one of the grounds set out in sub-paragraph (a) to (d) of Section 50(1). Fourthly, it must appear that the applicant did one of the things referred to in sub-paragraphs (a) to (d). Under sub-section (2) the respondent has a complete answer to the claim if it is shown the allegation of discrimination was not made in good faith.”

100 The Tribunal has consistently followed this approach. (See for example Lal v President, Anti-Discrimination Board of New South Wales [2000] NSWADT 68 at 41; Crewdson -v- President, Anti-Discrimination Board of New South Wales [2000] NSWADT 60 at 45 and Sivananthan v Commissioner of Police, New South Police Service [2001] NSWADT 44) Likewise we intend to adopt this approach in this decision.

101 It is apparent that the allegation made by Mrs D to the police on 29 June constitutes an allegation for the purposes s50(1)(c) of the Act. What is in issue is whether her transfer, and subsequent termination, constitutes a detriment; and if so, whether the respondent caused her to suffer this detriment on the grounds she complained to the police and the respondent.

102 Section 4A of the Act which provides that in relation to complaints of unlawful discrimination where an act is done for one or more reasons and one of those reasons consists of unlawful discrimination, then that act is taken to be done for that reason, does not apply to an act of victimisation, unlawful pursuant to s50. (See Shaikh v Commissioner, NSW Fire Brigades at 78,986.)

103 What then is meant by the words “on the grounds of” in the context of s50 (1) of the Act? It is instructive to look at the relevant cases which dealt with the meaning of this phrase, in the context of discrimination on substantive grounds, before the 1994 amendment to the Act, inserting s 4A, took effect. As noted by the NSW Law Reform Commission in its Review of the Anti-Discrimination Act 1997 , (NSW) Report No 92 at [7.155-7.158] two approaches have been followed . The first approach requires a determination of whether the unlawful conduct constitutes a “significant factor” in the decision making process (see O’ Callaghan v Loder [1984] EOC 92-023 at 75,499; Reddrop v Boeringer Ingleheim Pty Ltd [1984] EOC 92-031 at 75,569.) The second, whether one of the real or operative grounds for doing the act was a proscribed ground of discrimination. (See the decision of Clarke JA in Waterhouse v Bell (1991) 25 NSWLR 99 at p 106.) For the purpose of his decision we intend to adopt the later approach.

104 The first issue for us to determine is whether the decision to transfer Mrs D to the position of relief cleaner can be said to constitute a detriment. Mr Diamond submits that in light of the seriousness of the complaint the respondent had no option but to move the complainant away from Mr Herrera and the place where the alleged attack occurred; this decision was to her benefit; Mr Plarinos had gone to great pains to reassure the complainant her job was secure; the transfer resulted in no loss of pay or hours; Mrs D was paid for the short period she was stood down, before commencing at Wilkins Public School.

105 In our view Mrs D’s transfer from Lewisham does not of itself, constitute a detriment. After all her complaint was of a most serious nature and, on her evidence she did not want to remain at Lewisham and be haunted by memories of the assault. Further given the close proximity of the two schools, it could not be said that Mrs D had been inconvenienced in relation to her travel arrangements.

106 However the complainant was not simply moved to another location; her job status had been changed. At Lewisham she enjoyed, to use Mr Plarinos’ words a “permanent posting”; at Wilkins she was now a “relief cleaner”. We accept that as relief cleaner Mrs D’s pay and hours remain unaltered and her job status was not that of a casual. (We understand the term casual to mean in the context of the respondent’s employees, an employee who is not guaranteed work, who has no security of tenure and, who can be terminated without notice.)

107 However while the hours, pay rates and presumably some other conditions of employment may have been identical as between relief cleaners and their colleagues who enjoyed a permanent posting, the evidence shows that there was at least one significant difference: Relief cleaners had no permanent place of employment. They were moved between locations, in line with the operational requirements of the respondent. This arrangement is made clear from the terms of the respondent’s letter of 3 July 1998 which states: “… you are transferred to a relief cleaning position on a day-to-day basis. This means your supervisor will be in touch with you regarding which site you will be required at…”

108 Mr Plarinos concedes that relief cleaners were thought to enjoy lesser status within the respondent’s organistaion. This is not surprising: after all, the split shift arrangements under which the respondent’s cleaners were employed, meant they were required to travel to and from their place of work, ten times a week. No doubt the absence of a permanent base and the consequent uncertainty surrounding where the next day’s work would be located, was both unsettling and a source of some considerable inconvenience to members of the respondent’ s relief cleaning team.

109 The evidence also establishes that not only was Mrs D transferred to a “relief” position, her transfer was in effect a warning: she was now on probation. While on June 29 Mr Plarinos may have been at pains to explain to the complainant that she had not been demoted, within four days a letter was written to her entirely different in tone and content. Headed “disciplinary transfer” the July 3 letter states “…please be advised in the most strongest terms, not to involve clients, teaching staff or fellow workers in any argument, accusations or problems. If this is to happen again, you will no longer be called on relief duties ”(our emphasis). Mr Plarinos’ explanation that the words,“disciplinary transfer”, may have been a typographical error is at best, implausible. But in any event, whether Mr Plarinos, or as he claims, someone else wrote the letter, appears to us to be of little relevance. The letter was sent under the respondent’s letterhead, and no evidence has been led or no submission made that it was not authorised. The only conclusion available to us is that the character of the transfer was as unambiguously stated: a disciplinary transfer.

110 We are satisfied that Mrs D’s transfer to the position of relief cleaner, as opposed to a cleaner in a permanent position, in effect represented a demotion. Critically, she was now on notice that a repeat of the behaviour referred to in the 3 July letter would cost her her job. Accordingly we are satisfied that the transfer constituted a detriment.

111 Having made this finding we turn to consider whether the decision to transfer Mrs D was made on the grounds that she had complained to the police and her employer about Mr Herrera.

112 Given our findings about the character of the transfer, Mr Plarinos’ evidence that the decision to transfer Mrs D was motivated out of concern for the complainant is simply implausible. Had this been the case, it would have been expected that she would merely have been relocated and not, as was the case, demoted, and put on a warning.

113 While in cross-examination Mr Plarinos denied that he considered Mrs D to be a “trouble maker”, the contents of the 3 July letter make clear that this was not his view, at least immediately prior to her transfer to Wilkins. The respondent has not led any other evidence, which might explain why Mrs D would be considered a “problem.” The clear inference is that Mr Plarinos (and possibly others within the company) were annoyed that Mrs D had made a complaint. Whether this was because she went first to the police by-passing her employer or because her complaint was thought to be contrived we simply cannot say. However on balance we are comfortably satisfied that the evidence taken as a whole permits us to draw the inference that the respondent’s actions in transferring Mrs D was on the grounds of, or an operative cause of the complainant having complained about a colleague.

114 Accordingly we find that the transfer Mrs D constitutes victimisation in breach of s 50(1) of the Act.

Termination of Employment

115 The complainant also alleges that the decision to terminate her employment constitutes unlawful victimisation.

116 Mr Diamond submits that it was the complainant, not the respondent, who terminated the employment contract. The respondent merely acted to formally clarify that the employment relationship was at an end. In the circumstances the respondent was left with no other option, given Mrs D’s decision to abandon her employment. While, as conceded by Mr Diamond, there may have been shortcomings in the respondent’s conduct he submits that the evidence does not support a finding that the necessary elements of s 50(1) have been made out.

117 The threshold issue for us to decide is whether the first element of the definition of victimisation as set out in Shaikh v Commissioner, NSW Fire Brigades has been satisfied, namely that the respondent caused the complainant to undergo or experience something, or in other words, did the respondent cause the complainant to lose her position? The evidence of the parties in relation to this issue, is in direct conflict on almost all critical points. Mrs D’s evidence is that she told her supervisor, Mr Panagiotakis, on the afternoon of 28 July that she was going home ill; that afternoon she went to Bankstown Medical Centre and was issued with a doctor’s certificate certifying her unfit for work; this certificate was sent by post to the respondent. The uncontested evidence of Mrs D’s husband was that, unable to get onto Mr Plarinos by phone, he spoke to Mr Cope, and advised that his wife was ill and would not be attending work.

118 Mr Plarinos’ evidence was that during a visit to Wilkins Public school on 28 July Mrs D told him she was thinking of resigning; the day following that visit Mr Panagiotakis told him she would not be coming back and handed him the keys; Mr Plarinos waited a week, in case she should change her mind, and then advised the payroll office to formally terminate her employment as she had abandoned her employment; following this decision, a medical certificate was received by post certifying Mrs D unfit for work; in consultation with Mr Cope, he concluded that the certificate was backdated and thus contrived, therefore the original decision to terminate Mrs D’s employment was not reversed.

119 We note that neither Mr Cope, nor Mr Panagiotakis, were called to give evidence nor any explanation proffered to explain why this was the case. That Mr Panagiotakis was not called by the respondent is most surprising in the face of Mrs D’s claim that she did not say to him that she had resigned.

120 The implication to be drawn from the manner in which the complainant’s employment was terminated, is that the respondent was anxious to resolve what it saw as problem in relation to her to its advantage. The evidence regarding when precisely the respondent took steps to terminate Mrs D’s employment is not altogether clear. Mr Plarinos’ claim that he waited a week after receiving advice from Mr Panagiotakis, stands in conflict with the written advice of the respondent’s Human Recourses Manager, Steve Cross to Mrs D’s legal representatives dated 20 November 1998 which nominates the day following the alleged resignation, 29 July, as the day of termination.

121 But in any event the evidence shows that little care was exercised by Mr Plarinos to determine precisely what were Mrs D’s real intentions. It may be that Mrs D expressed her intentions to her supervisor in ambiguous terms. However we accept her evidence that she had no intention of abandoning her job on the day she reported sick to her supervisor. This is consistent with the fact that she tendered a medical certificate some time later and her husband telephoned Mr Cope. There is no reliable evidence on when the medical certificate was received by the respondent. Mrs D has produced no evidence to support her claim that it was sent shortly after her visit to the Bankstown medical centre. Nor is there any evidence to support Mr Plarinos’ evidence that it was received at least a week after the alleged resignation.

122 We are left therefore with the complainant’s husband’s uncontested evidence that he rang Mr Cope to advise that his wife would not be reporting for work.

123 Even if Mr Plarinos had honestly taken the view that Mrs D had resigned, he took no steps at any time following the alleged resignation to confirm that this was the case and on his own evidence, had misgivings as to whether Mrs D made a final decision. Despite his earlier advice to the complainant that she put her resignation in writing, no action was taken despite the fact that her alleged verbal resignation was delivered to someone other than himself.

124 Moreover, on receipt of the medical certificate, which indicated that she intended to take sick leave only, no steps were taken by the respondent to reinstate her. The evidence is inconclusive as to when precisely the certificate was received by the respondent, but even accepting that it was, as claimed by Mr Plarinos, received over a week after the alleged resignation the question remains why at that point no steps were taken to reinstate her.

125 In summary, we are satisfied that Mrs D did not resign and did not intend to resign from her position as relief cleaner despite the fact that she was stressed and deeply unhappy about the circumstances surrounding her transfer. In failing to clarify her true intentions the acts of the respondent’s employees have caused her to lose her job. Accordingly we are satisfied that the first element of s 50(1) as set out in Shaikh v Commissioner, NSW Fire Brigades has been made out. It is self-evident that dismissal in these circumstances constitutes a detriment, that is, objectively viewed the complainant has been placed at a material or significant disadvantage.

126 We turn finally to determine whether it can be said that the respondent acted to terminate Mrs D as it did, on the grounds that she had made a complaint of sexual harassment. In other words, was the fact that she had made a complaint an operative ground in the respondent’s decision to terminate her employment?

127 Taken as a whole the circumstances indicate or imply that the respondent regarded it as convenient to be rid of the complainant for a reason other than that as stated, that is, that she had abandoned her employment. We are comfortably satisfied that the respondent acted to terminate Mrs D’ on the ground that she had made a complaint.

128 Accordingly we find that the transfer of Mrs D in the manner as described and her subsequent termination constitutes unlawful victimisation in breach of s 50(1) of the Act.

Relief

129 The complainant seeks damages for economic and non-economic loss. Section 113(1)(b)(i) of the Act permits the Tribunal to order a respondent to pay to the complainant damages not exceeding $40,000 by way of compensation for any loss or damage suffered by reason of the respondent's conduct.

Economic Loss

130 The complainant seeks damages for loss of income following the termination of her employment.

131 Mrs D’s evidence was that she was fit to return to work a couple of weeks after her last day of employment with the respondent. Following this she tried to get alternative employment and about seven months later secured a job paid at the rate of $500 per fortnight, about $200 less than paid by the respondent.

132 We are satisfied that Mrs D has taken reasonable steps to mitigate her loss. Mr Newell submits that Mrs D has lost income of approximately $11,800, as a result of the respondent’s conduct representing $9800 for her seven months unemployment following termination, and a further $2000 representing the wage differential between her new job and that with the respondent, for a twelve month period.

133 Accordingly we find the complainant’s economic loss to be $11,800.

Non-economic Loss

134 The complainant also seeks an order for general damages for hurt, humiliation and injury to her feelings.

135 In support of her contention that she was deeply disturbed by the acts of Mr Herrera and her subsequent victimisation by her employer she relies on the uncontested evidence of psychiatrist, Dr Takas.

136 Dr Takas’ report, dated 19 December 2000 states that Mrs D suffered from “psycho-emotional disturbances which necessitate psychiatric treatment” As a result she has had difficulties in involving herself with work and her quality of life and her roles as wife and mother have suffered. He concludes that the work related incidents “have been the significant contributing factor in the development of her psycho-emotional state”. Since his first consultation on 29 November 2000 he has treated her with a combination of antidepressants and tranquillisers. There was no past psychiatric history.

137 The complainant’s evidence was that she was deeply disturbed following her harassment by Mr Herrera and she still feels bad about it today. As a member of the Greek Orthodox community she is deeply embarrassed about the attack.

138 As acknowledged by Wilcox J in Hall v Sheiban (1985) ALR 503 at 543, the task of determining the appropriate level of damages in a case of unlawful discrimination is difficult.
“…damages for such matters as injury to feelings, distress, humiliation and the effect of the complainant's relationships with other people are not susceptible to mathematical calculation...To ignore such items of damage simply because of the impossibility of demonstrating the correctness of any particular figure would be to visit an injustice upon a complainant by failing to grant relief in a proven item of damage.”

139 We find that the sexual harassment to which the complainant was subjected has caused her to suffer a great deal of stress and hurt and has adversely impacted on her psychological well being and enjoyment of life. We also accept that she has been deeply hurt by the respondent’s dismissive treatment of her complaint and subsequent acts of victimisation. Relevantly we accept her evidence that she remains distressed some three years after the treatment of which she complains.

140 We are of the view that any award of damages should reflect the gravity and seriousness of her treatment by her co-worker and the subsequent dismissive treatment of her complaint and victimisation by her employer.

141 Taking into account all relevant matters we intend to award damages for non-economic loss of $15,000.

Orders
142 We order that the respondent pay the complainant within twenty-one days of the date of this decision the sum of $26,800.