Denmeade v Kempsey Shire Council & Ors (No.2)

[2003] NSWADT 225

CITATION:	Denmeade v Kempsey Shire Council & Ors (No.2) [2003] NSWADT 225
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Lindy Denmeade FIRST RESPONDENT Kempsey Shire Council SECOND RESPONDENT Keith Finnie THIRD RESPONDENT Andrew Evans FOURTH RESPONDENT Warren Howe FIFTH RESPONDENT Chris Gorman SIXTH RESPONDENT Kevin Shaw SEVENTH RESPONDENT Gary Grant
FILE NUMBER:	991104, 021023
HEARING DATES:	11/11/2002-14/11/2002, 7/04/2003-8/04/2003
SUBMISSIONS CLOSED:	04/08/2003
DATE OF DECISION:	09/30/2003
BEFORE:	Britton A - Judicial Member; Alt M - Member; McDonald O - Member
APPLICATION:	Sex Discrimination - In work - Sexual Harassment - In workplace - Victimisation
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977
CASES CITED:	Wollongong City Council v Bonella & ors and Bonella & ors v Wollongong City Council (EOD) [2002] NSWADTAP 26 Commissioner of Police; New South Wales Police Service v Mooney (EOD) [2001] NSWADTAP 20 Battenberg v The Union Club [no.2] [2003] NSWADT 187 Hatic v Linfox Transport (Australia) Pty Ltd [2003] McAuliffe v Puplick & Anor. (1996) EOC 92-800 Langley v Niland [1981] 2 NSWLR at 107-108 Bonella v Wollongong City Council [2001] NSWADT 194 Sivananthan v Commissioner of Police, NSW Police Service [2001] NSWADT 44 Waters v Public Transport Commission (1992) 173 CLR 349 O'Callaghan v Loder [1984] EOC 92-023 Reddrop v Boeringer Ingleheim Pty Ltd [1984] EOC 92-031 Hall v Sheiban (1985) ALR 503
REPRESENTATION:	APPLICANT In person FIRST-SIXTH RESPONDENTS K Nomchong, barrister SEVENTH RESPONDENT R Banks, solicitor
ORDERS:	1 The complaints of discrimination on the ground of sex, sex harassment and victimisation made against the second to the seventh respondent (inclusive) are dismissed; 2 The complaint of aiding and abetting made against the seventh respondent is dismissed; 3 The complaint of victimisation against the first respondent in relation to Allegation 10 is upheld; the balance of the complaint/s of victimisation against the first respondent is dismissed; 4 The Applicant is awarded damages in the sum of $4000; 5 Parties granted leave to apply for costs. Application and submission for costs to be filed and served within 14 days of the date of these orders

1 Lindy Denmeade (formerly Lindy Hanratty) alleges that Kempsey Shire Council (the first respondent) discriminated against her on the grounds of sex in the area of employment. She further alleges that the Respondent Council victimised her contrary to the provisions of s 50 of the Anti-Discrimination Act 1977 (“the Act”).

2 By consent, employees of the Respondent Council, Keith Finnie, Andrew Evans, Warren Howe, Christopher Gorman and Kevin Shaw, were joined as parties to the proceedings. On 25 July 2002, on the application of Ms Denmeade, Gary Grant, psychologist, was also joined as a Respondent to these proceedings. Mr Grant was contracted to provide services to the Respondent Council for part of the relevant period. That application was opposed.

3 This case was heard in Port Macquarie over six days. All respondents were represented. The first to the sixth respondents inclusive were represented by Ms Nomchong, and the seventh respondent, Mr Grant, by Ms Banks. Ms Denmeade was self-represented.

Background

4 Ms Denmeade started work with the Respondent Council in May 1995. She commenced on a short-term contract and later accepted a permanent position as a labourer, in the Parks and Gardens division. Throughout the relevant period, staff in that division were predominantly male. It is common ground that Ms Denmeade was a competent employee.

5 At work on 18 December 1997, the sixth respondent, Kevin Shaw, flicked a spider into Ms Denmeade’s face and she retaliated by punching him in the face (the spider incident). On 22 December, Ms Denmeade met the second respondent, Keith Finnie, then Assistant Director of Operations, to discuss that incident and other matters.

6 On 23 December 1997 Ms Denmeade sought a meeting with Mr Finnie’s immediate superior, Richard Atkins, Director of Operations. Ms Denmeade was told Mr Atkins was unable to meet until the following day. Later that day Ms Denmeade saw her doctor and went on sick leave. Subsequently she made an application for workers compensation, which was accepted. Throughout 1998/1999 a number of return to work options were put to Ms Denmeade. All were rejected.

7 Ms Denmeade remained off work until 24 January 2000 when her employment was terminated. The stated reason for that termination was that Ms Denmeade had constructively abandoned her employment.

Background to referral of complaints

8 On 6 April 1998 Ms Denmeade lodged a complaint with the President of the Anti-Discrimination Board (respectively “the President” and “the Board”) alleging that the Respondent Council and various employees unlawfully discriminated against her on the grounds of sex and victimised her in employment (the first complaint). That complaint spanned the period May 1995 to April 1998. Ms Denmeade alleged among other things that she had been harassed by various colleagues; that a “black mark” had been placed on her file without cause; that she was verbally attacked by the fifth respondent, colleague Chris Gorman; that the fourth respondent, supervisor Warren Howe, stood in the way of her promotion; that Mr Shaw had harassed and attacked her; that Mr Finnie failed to fairly investigate her complaint about Mr Shaw and that the Respondent Council failed to take appropriate steps to facilitate her return to work. Supplementary material was supplied to the Board by letter dated 1 July 1998.

9 A further complaint was lodged on 29 July 1998, again alleging sex discrimination and victimisation (the second complaint). That complaint concerned disclosures about Ms Denmeade made by Mr Finnie to rehabilitation provider Kate Harding. Ms Denmeade also repeated her complaint about the Respondent’s Council purported failure to facilitate her return to work.

10 On 15 October 1998 Ms Denmeade provided further information to the Board about her complaints thus far.

11 A further complaint was lodged on 15 February 1999 alleging that the Respondent Council had victimised Ms Denmeade because she had made a complaint to the Board (the third complaint). Ms Denmeade alleged that, at a meeting in January 1999, disparaging remarks were made about her by fellow employees, the third respondent Andrew Evans, and the seventh respondent, psychologist, Gary Grant. The Applicant provided supplementary material in respect of the complaint by letter dated 15 February, 18 March and 26 May 1999.

12 On 1 June 1999, Ms Denmeade lodged an additional complaint about the January meeting (“the fourth complaint”).

13 The Board attempted to resolve these complaints without success. Accordingly by letter dated 1 September 1999, the President referred these complaints to the Administrative Decisions Tribunal (“the Tribunal”) under s 94(1) of the Anti-Discrimination Act 1977 (“the Act”).

14 On 21 May 2001, a further complaint was lodged with the Board (the fifth complaint). Ms Denmeade alleged that the Respondent Council discriminated against her on the ground of sex and victimised her by terminating her employment on 20 January 2000. The President exercised his discretion to accept that complaint out of time under s 88 (4) of the Act and referred that complaint to the Tribunal on 1 March 2002.

Procedural Issues

15 Before determining these complaints a number of procedural issues need to be considered.

Procedural issue 1: – Scope of the first complaint

16 As noted, the first complaint which was lodged in April 1998, made allegations of impugned conduct said to have occurred throughout the period, 1995 to April 1998. In these proceedings we ruled that conduct which predated 6 November 1997 was outside our scope of inquiry as it had occurred more than six months before the lodgement of the initiating complaint.

17 For the purpose of clarity we briefly set out the reasons for that ruling. Our jurisdiction in this matter arises out of the operation of s 96 of the Act. Section 96 says that the Tribunal shall hold an inquiry into each complaint referred to it by the President under s 94(1). Such referral is initiated by a “complaint” in writing lodged with the President “in respect of any contravention of this Act”: s 88(1). That complaint must be lodged with the President within six months after the alleged contravention is said to have been committed: s 88(3). The President has discretion to accept a complaint outside that period “on good cause being shown”: s 88(4).

18 Where all or part of a complaint is out of time and the President fails to exercise discretion under s 88(4) the Tribunal is without jurisdiction to determine that complaint (or part thereof): Wollongong City Council v Bonella & ors and Bonella & ors v Wollongong City Council (EOD) [2002] NSWADTAP 26; Commissioner of Police; New South Wales Police Service v Mooney (EOD) [2001] NSWADTAP 20. In the absence of any evidence that the President did exercise that discretion, there can be no presumption of regularity: Commissioner of Police, NSW Police Service v Mooney at [26].

19 As the President did not exercise discretion under s 88(4) of the Act in respect the first complaint, we have no jurisdiction to determine any alleged contravention that occurred before November 1997.

Procedural Issue 2: Scope of Complaint, January 1998 to January 1999

20 The Amended Points of Claim and the complaints lodged with the Board set out a large number of allegations. In respect of some, it is not altogether clear what is alleged to contravene the Act. This lack of precision is particularly marked for the period covered by the second complaint and the period following Ms Denmeade’s departure from work until the January 1999 meeting. It is argued for the Respondents that the Applicant’s case is restricted to those matters raised in the Amended Points of Claim.

21 In the course of these proceedings, Ms Denmeade was asked to identify the alleged contravention/s of the Act said to have occurred throughout this period. She identified nine separate issues. (Transcript 8.4.03 p 53). It is apparent that some of these fall outside the scope of our inquiry and are, in effect, fresh allegations not referred to in any of the complaints made to the Board.

22 In a case such as this, where voluminous documents are filed and the “pleadings” suffer from a lack of precision, it can be difficult for the Tribunal and the parties to identify the alleged contraventions of the Act to be determined. This is not uncommon in matters brought by self-represented parties, some of whom, not surprisingly, experience great difficulty identifying and refining the issues in dispute and reducing those to the language of the law. In such situations the Tribunal is required to balance what are, at times, conflicting directives enshrined in s 73 of the Administrative Decisions Tribunal Act 1997 ("Tribunal Act"). On the one hand, we are enjoined to ensure that technicalities and legal form do not prevail over substance (s 73(3)), and that the parties have the fullest opportunity practicable to be heard (s 73(4)(c)) while at the same time affording each party procedural fairness (s 73(2)). The matters to be taken account in determining whether in this jurisdiction parties should be bound by their "pleadings" are examined in the recent case of Battenberg v The Union Club [no.2] [2003] NSWADT 187 at [41]-[46]. It was said there:

Should a party in this jurisdiction be bound by their "pleadings"? There is no provision in the Administrative Decisions Tribunal Act 1997 (" Tribunal Act"), or the rules made pursuant to that Act, requiring parties to set out their case by way of pleadings. In the Equal Opportunity Division of the Tribunal it is common practice, as was the case in this matter, for directions to be made requiring parties to file points of claim and defence.

The Tribunal has broad powers to determine its own procedure: s 73(1). Section 73(3) of the Tribunal Act instructs the Tribunal to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal form: s 73(3). The Tribunal is at the same time bound by the rules of natural justice: s 73(4).

The objects of requiring parties to define their case by way of pleadings is to enable the Tribunal to determine the issues which divide the parties, and to prevent cases becoming mired in collateral issues. It is also a question of procedural fairness. Parties are entitled to know the cases against them.

A determination of whether the Applicant should be bound by the Amended Points of Claim requires a balance of what, at times, may appear to be the conflicting directives enshrined in s 73 - on the one hand, to ensure that technicalities and legal form do not prevail over substance, while at the same time affording each party procedural fairness.

There is no blanket rule that parties in this jurisdiction are bound by their "pleadings". Whether such rule should apply can only be determined on a case-by-case basis.

23 Applying these principles and having carefully examined the material before us, we understand Ms Denmeade’s case in respect of the period 24 December 1997 to January 1999 to be that the Respondent Council unlawfully discriminated against her on the ground of her sex by:

§ First, failing to take reasonable steps (including the provision of a safe and harassment-free workplace) to facilitate Ms Denmeade’s timely return to work;

§ Second, by failing to adequately investigate her complaints against Mr Finnie and Mr Shaw;

§ Third, through Mr Finnie, making an unfavourable disclosure about her to rehabilitation provider, Kate Harding.

Procedural Issue 3: Complaints of Sex harassment

24 One of the shortcomings of the Amended Points of Claim is the failure to delineate which respondent is said to be responsible for each alleged breach, despite the fact that there are seven separate respondents. This is particularly relevant in respect to the allegations of sex harassment given the issue of liability.

25 Section 22B makes sex harassment in employment unlawful. Section 22B(2) makes it unlawful for an employee to harass a fellow employee. Sex harassment can also constitute unlawful discrimination: s 25(2)(a) and s 25(2)(c). (See O'Callaghan v Loder [1984] EOC 92-023) Liability for sex harassment under s 25(2) rests with the employer (providing liability is established under s 53) and does not extend liability to employees.

26 Sub-paragraph 36(1) of the Amended Points of Claim states:

By reason of the conduct outlined in paragraphs 5 [alleged display of pornographic pictures] and 6 [alleged sexist comments directed at Ms Denmeade by Trevor Weatherston] the respondent and the Respondent’s employees discriminated against and sexually harassed the claimant.
27 As there is no named respondent in respect to the pornography allegation and Mr Weatherstone is not a respondent to these proceedings, neither allegation can be considered under the provisions of s 22B. These allegations may constitute unlawful discrimination under s 25(2) of the Act and will be considered on that basis.

28 Reference is also made to harassment in sub paragraph 36(4) of the Amended Points of Claim. It states:

By reason of the conduct outlined in paragraphs 5, 8, [alleged sexist comments made by Chris Gorman, September 1996], 9 [alleged sexist comments made by Chris Gorman in July 1997], 11(a) [alleged harassment by Mr Finnie in July 1997], 19 [alleged assault by Kevin Shaw, December 1997], 20 [alleged threat by Mr Shaw, December 1997], 35(a) [alleged failure by Council to provide information on leave entitlements] and 35(b) [termination of employment] the Respondent and the Respondent’s employees discriminated against, harassed and victimised the claimant.
29 It is not altogether clear whether the word “harassment” as used above is intended to convey the restricted meaning given by s 22A or whether it is used in a more general sense. Given that the applicant is self-represented and in light of observations set out in Paragraph 22 of these reasons, we intend to examine each allegation in turn to determine whether any could possibly constitute contraventions of s 22B.

30 The allegations referred to in paragraph 8, 9, 11(a) are out of time and therefore need not be considered further. Even on the broadest interpretation it is apparent that the conduct referred to in sub paragraph 36(a) and 36(b) could not fall within the meaning of “sex harassment” as given by s 22A.

31 Paragraph 12 of the Amended Points of Claim refers to sexist comments Mr Howe allegedly made. That allegation, if made out, could constitute sex harassment. While no mention is made to this allegation in paragraph 36 of the Amended Points of Claim, Mr Howe is on notice of this allegation and indeed responded to it in his sworn statement before the Tribunal. It cannot therefore reasonably be asserted that he was denied procedural fairness by the absence of any reference to that matter in paragraph 36. Accordingly that allegation also forms part of our inquiry.

32 We therefore proceed on the basis that Ms Denmeade’s case is that Mr Shaw and Mr Howe respectively subjected her to harassment as defined in s 22A by allegedly:

§ Assaulting her with a spider (paragraph 19) and verbally threatening her;

§ Making derogatory and sexist remarks (paragraph 12) in her presence.

Procedural Issue 4: Complaint against Mr Grant

33 Ms Banks, for Mr Grant, asserts that the Tribunal is without jurisdiction to deal with the complaint as it relates to Mr Grant. It is submitted that the President failed to address whether Mr Grant would suffer any prejudice if the complaint lodged in May 2001 were accepted out of time. As a consequence, that part of the complaint concerning Mr Grant was invalidly received and therefore invalidly referred to the Tribunal.

34 It is useful to restate the chronology. By letter dated 21 May 2001 Ms Denmeade lodged the Fifth Complaint alleging sex discrimination and victimisation by the Council in terminating her employment on 21 January 2000. Mr Grant is not mentioned in that letter. In a second letter to the Board dated 25 May 2001, Ms Denmeade indicated that she wished to lodge a complaint of "aiding and abetting" against a number of named persons, including Mr Grant.

35 That complaint was out of time. The President subsequently consulted the Respondent Council as to whether the complaint should be accepted. The Council advised that it had no objection. Mr Grant was not consulted.

36 By letter, dated 10 January 2002, the President advised the council that the Second Complaint would be accepted under s 88 (4). In that letter, the President addresses the question of prejudice to the First Respondent, stating "it is my view that the Council will not suffer significant prejudice if I accept the current complaint out of time".

37 There is no reference in that letter or any other correspondence of the Board to indicate that any consideration had been given to any prejudice Mr Grant might suffer if the complaint were accepted out of time.

38 The factual situation of this case can be distinguished from Commissioner of Police, New South Wales Police Service v Mooney and Hatic v Linfox Transport (Australia) Pty Ltd [2003] NSWADT 43 where it was determined that the Tribunal was without jurisdiction to determine a complaint made out of time. In both Mooney and Hatic there was no evidence that the President had exercised his discretion under s 88(4) despite the fact that the out-of-time part of each complaints was apparently referred to the Tribunal. Here a clear decision was made to accept the complaint out of time.

39 As noted by the Appeal Panel in Mooney at [28] reference to “on good cause being shown” refers to “the satisfaction on the part of the President that the delay has been explained and that no prejudice has thereby been created”: see McAuliffe v Puplick & Anor. (1996) EOC 92-800. The Act does not stipulate how that discretion is to be exercised. Once that discretion is exercised it is not open to the Tribunal to go behind that decision. The issue for us is simply whether the complaint was accepted out of time. Here it is clear that “the complaint” alleged among other things that Mr Grant had contravened the Act. The referral to the Tribunal makes it clear that the referred complaint includes the letter of 25 May 2001, which makes specific reference to Mr Grant.

40 Accordingly we determine that we have jurisdiction to determine the second complaint against Mr Grant.

Scope of complaint against Mr Grant

41 The essence of the fifth complaint is the decision of Council to terminate Ms Denmeade’s employment. In that complaint she contends, “I believe the issues raised before the Board in relation to the alleged offender Gary Grant, fall under this section of aiding and abetting with (words missing?) the discrimination and victimisation”.

42 The Amended Points of Claim as they relate to Mr Grant are far broader in scope than the matters complained of in the fifth complaint. It would appear from that document that Ms Denmeade contends that Mr Grant unlawfully discriminated against her and victimised her in respect of the assessment report prepared for GIO in January 1998; in discussions held with Ms Harding in mid-1998; in the conduct of the January 1999 meeting and in the subsequent report prepared for Council. It is asserted that Mr Grant “advertised sex discrimination; victimised and aided and abetted sex discrimination and victimisation; aided and abetted sex discrimination, victimisation and defamation”.

43 While there is no requirement that the complaint “allege the relevant facts with the particularity of an indictment or a pleading” (Langley v Niland [1981] 2 NSWLR at 107-108) this does not, however, permit complainants to radically depart from the scope of their initiating complaints. For example, a complaint of race discrimination cannot later be rebirthed as a complaint of sex discrimination.

44 The allegations set out in the Amended Points of Claim go beyond any matters that could be reasonably considered to be relevant to the role Mr Grant played, if any, in respect of Ms Denmeade’s termination. In respect of Mr Grant’s liability, the sole issue for determination is whether he, through any act or omission, caused, instructed, induced, aided or permitted the first respondent to terminate Ms Denmeade’s employment, contrary to the provisions of s 25(2)(c) and/ or s 50of the Act.

Relevant legislative provisions

45 Sex Discrimination Section 25(2) makes it 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.

46 The test of what constitutes discrimination on the grounds of sex is set out in s 24 of the Act. The Applicant’s case has been conducted on the basis of a claim of direct discrimination which is defined in s 24(1)(a):
(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

(1A) For the purposes of subsection (1) (a), something is done on the ground of a person’s sex if it is done on the ground of the person’s sex, a characteristic that appertains generally to persons of that sex or a characteristic that is generally imputed to persons of that sex.

47 Section 4A of the Act provides that if:
(a) an act is done for 2 or more reasons, and

(b) one of the reasons consists of unlawful discrimination under this Act against a person (whether or not it is the dominant or a substantial reason for doing the act),

then, for the purposes of this Act, the act is taken to be done for that reason.

48 Victimisation Section 50(1) of the Act makes it 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.

49 Sex harassment Section 22B(2) makes it unlawful for an employee to sexually harass a fellow employee. Section 22A provides that 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.

50 Vicarious Liability 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) ...

Sex Discrimination: the issues

51 For convenience, we consider the evidence broadly in four parts: first, the period concerning the conduct that pre-dated Ms Denmeade’s departure from work; second, the period following that departure up until 28 January 1999; third, the 28 January meeting and subsequent report and finally the termination of her employment.

52 We deal first with the allegations of unlawful discrimination that fall within the scope of the first and second periods.

53 To succeed in her claim of sex discrimination Ms Denmeade must establish, on balance, that in respect of each alleged contravention of the Act:

First, that the treatment complained of constituted a “detriment” within the meaning of s 25(2)(c) or related to a term or condition of employment: s 25(2)(a);

Second, that if this is so, a male employee of the council was, or would have been, treated more favourably in the same or similar circumstances.

Third, that one of the reasons for any less favourable treatment was because Ms Denmeade was a woman.

Fourth, that if this is so, whether, through the operation of s 53 of the Act, the first respondent is liable for that conduct.

Evidence

54 Much evidence was given in these proceedings about the period predating the first complaint. As noted the period before 6 November 1997 is outside the scope of our inquiry. Any findings can only be relevant in assisting us in putting those complaints that are within the scope of our inquiry in context.

55 Pornographic material It is common ground that posters depicting naked women, had been on display at the workplace of the Respondent Council. What is in issue is the period that material was on display. Ms Denmeade claims such material remained on display up until the day she left work, 24 December 1997. Ms Denmeade’s claim is supported by the evidence given by her work colleagues, George Cooper and Sandra Crossingham. Katie James, an employee of the Council between September 1996 to September 1997, stated that throughout that period “smutty material” was displayed in some areas.

56 The first respondent asserts that this material had been largely removed by 1996. Mr Evans, then Human Resources Manager, attested that in 1996, following a complaint, he took steps to have the offending material removed. According to him no further complaints were received. He conceded that it was possible that such material continued to be on display after 1996.

57 Derogatory comments Ms Denmeade claims that her colleagues frequently made derogatory comments about women. She claimed that her colleague, Trevor Weatherston, on a number of occasions had said to her “Council’s outdoor staff is not a place for women. Women should not be working there”.

58 According to Ms Denmeade, on at three occasions, Mr Howe, her supervisor, commented, “Women aren’t built for a man’s work;” “Women shouldn’t be in men’s jobs;” “A woman’s place is in the home chained to the kitchen.” She could not recall precisely when these comments were made. In a sworn statement Mr Howe denied these allegations. He attested that Ms Denmeade pursued any opportunity to promote her belief that women were equally capable as men in all areas or work.

59 Ms James, who worked in the same area as Ms Denmeade until March 1997, attested that she often heard sexist remarks while working at the Council such as: “Quit your job and let a man have it”; “You should wear tighter shirts and shorter shorts”.

60 Psychiatrist, Dr Leonard, in a report dated 12 April 2000, records that Ms Denmeade had told him that she was subjected to many sexist comments from her work colleagues.

61 Mr Evans said he had never received any complaints about such comments and never heard any employee of Council express such a view. He said he would not be surprised if some employees made derogatory comments about women, “it was after all essentially a rural, not even urban, blue collar workplace”.

62 It is common ground that at a meeting of Council employees held in January 1999 employee Wayne Fulford said “I told her [Ms Denmeade] that women shouldn’t be working in Council”.

63 Ms Denmeade said that she never complained about the comments directed at her or the display of offensive material. She said she knew when she took on the job she would have to be tolerant and was scared that if she complained she might lose her job.

64 Safety glasses incident It is common ground that in June 1996, head of the Council store, Bruce Caldwell, refused to issue Ms Denmeade safety glasses. She asserted he did so because she was a woman. This is denied by Mr Caldwell who claimed that he had mistakenly believed that Ms Denmeade was a temporary employee and as such not entitled to receive glasses.

65 He said once he found he was wrong he promptly issued the glasses.

66 Chris Gorman incident Following a union meeting in July 1997, Mr Gorman verbally attacked Ms Denmeade apparently over a disagreement about a matter raised at that meeting. According to Ms Denmeade, Mr Gorman yelled repeatedly: “You stupid fucking sheila” and was extremely angry and aggressive. She felt threatened. Her account was broadly corroborated by Messrs Cooper and Turei Naera who witnessed the incident. (Exhibit D6 Attachment B1). Supervisor, Mr Howe, also witnessed the event and told Ms Denmeade to see if she could sort it out with Mr Gorman.

67 By letter, dated 15 July 1997, Ms Denmeade complained to Mr Finnie about management’s failure to address the incident. (D6 Attachment A). A meeting was convened the following day and Mr Gorman placed on probation. Ms Denmeade told Mr Finnie she considered this sanction inadequate and demanded a written apology. Mr Finnie said: “I can’t make him do that.”

68 Subsequently Ms Denmeade lodged a complaint with the Municipal Employees’ Union (MEU). Following a meeting convened by the MEU Mr Gorman issued a written apology.

69 Competency Assessment In August 1997 Council’s outdoor staff were individually assessed as part of a competency assessment exercise. Mr Howe recommended Ms Denmeade not be promoted to Labourer Grade 5 as she did not hold a Traffic Control Ticket.

70 Mr Finnie overrode Mr Howe and Ms Denmeade was promoted. On a document headed “Competency Assessment” which was placed on Ms Denmeade’s file, Mr Finnie noted, “Lindy has not completed Traffic Controller’s Course but she should not be held back from progression because of this. Lindy also needs to become more diplomatic in her dealings with other staff.”

Kevin Shaw’s treatment of Ms Denmeade

71 Conduct Before Spider Incident Ms Denmeade testified that shortly after starting with the Respondent Council, Mr Shaw tried to run her, and others, down with a lawn mower. She said she believed she was targeted by him. Mr Cooper testified that Mr Shaw used to get up to some “pretty funny things”. This included running over signposts and tearing the horn out of vehicles. Mr Cooper said he witnessed a number of occasions when Mr Shaw drove in an aggressive and reckless manner around other workmates.

72 He gave evidence about an incident when Mr Shaw reversed a truck into a cherry picker on which Ms Denmeade was working. She was in a cherry picker about 40 feet above the ground and close to power lines.

73 Key incident On 17 December 1997, Ms Denmeade and members of her work gang were working in a local street. Ms Denmeade left the keys to an unattended work truck in the ignition for what she estimated to be about 10 minutes. On her return she discovered that Mr Shaw had removed the keys. She asked him why. He replied that the keys should not have been left in the ignition and accused her of abandoning the truck for over an hour. He returned the keys.

74 Spider incident On 18 December 1997, Ms Denmeade and Mr Shaw were passengers in a work truck driven by Mr Howe. According to Ms Denmeade, Mr Shaw, without notice and for no apparent reason, flicked a spider into her face, which she flicked off. He repeated this action. Ms Denmeade retaliated, jabbing him in the face with a closed fist. She said her actions were instinctive and done out of fear. According to Ms Denmeade, Mr Shaw knew she was scared of spiders, as he was.

75 Mr Howe attested that he saw Mr Shaw trying to remove a small spider from a web behind the rear vision mirror. The next thing he saw was that Mr Shaw had blood on his lip and assumed Ms Denmeade had punched him.

76 When they returned to the Depot, Mr Howe urged the two to meet to sort it out. Ms Denmeade said she asked Mr Shaw why he did it, to which he replied: “I don’t know …I suggest you back off and leave me alone.”

77 The following day Mr Shaw reported the incident to Mr Finnie but indicated he did not wish to make a formal complaint.

78 In a report dated 4 June 1998, Kate Harding reported that she interviewed Mr Shaw who denied he had intended to flick the spider in Ms Denmeade’s face. He reported that he saw a tiny green spider hanging from the rear vision mirror and attempted to place it outside the window. Mr Shaw is reported to have claimed to Ms Harding “I’m terrified of spiders and just wanted it out of the cab.” Mr Grant and Mr Finnie also recorded a denial in similar terms. However, in a report by Ms Harding to GIO Australia, dated 16 April 1998, she recorded that she had been told by Mr Finnie that Mr Shaw had told him “that some teasing of Lindy [Denmeade] had occurred followed by the spider being thrown at Lindy.” (Emphasis added.) While this is obviously second-hand hearsay, if accepted it would constitute an admission by Mr Shaw corroborating Ms Denmeade’s account and interpretation of the incident.

79 22 December meeting On 22 December Ms Denmeade met Mr Finnie. At that meeting, Mr Finnie advised Ms Denmeade that striking another employee could be grounds for dismissal, to which she replied: “I am entitled to protect myself if attacked and under the same situation I would probably do it again.” According to Ms Denmeade, Mr Finnie said: “If it had been a formal complaint you would be out the gate”.

80 At that meeting, Mr Finnie raised two separate issues namely: the chainsaw incident and an incident involving Mr Naera.

81 Chainsaw Incident On 3 November 1997 Ms Denmeade injured her leg at work while using a chainsaw. Mr Finnie criticised Ms Denmeade for, first, not wearing long pants and putting herself at risk of a leg injury; second, failing to complete a workers compensation form; and third, purchasing a bandage from outside the Council store.

82 Ms Denmeade responded, first, that it was unreasonable and impractical that she wear long pants as no other outdoor worker did; second, no training on the use of chainsaws had been provided; third, she was unaware she was to complete a workers compensation form; fourth, she had no option but to purchase the bandage, as the type required was not available from Council.

83 Missing Keys incident Mr Finnie put to Ms Denmeade that on 4 November, in front of other employees she accused Mr Naera of stealing keys. Ms Denmeade vigorously denied that allegation and said she had simply asked Mr Narae if he knew anything about the keys and he then verbally abused her.

84 In a file note Mr Finnie recorded “ I advised Lindy to ensure her approach was appropriate and that I would talk to Tuera to ensure that he was not abusive or threatening when dealing with any staff member.”

85 According to Ms Denmeade, throughout the interview Mr Finnie’s voice became raised. He “bombarded her with criticisms”. She complains that he acted in an intimidating manner and towards the end stood and in a raised voice said: “You’re in error, you’re in error.”

86 In a file note dated 22 December 1997 Mr Finnie recorded:

“I advised Lindy that striking another employee, regardless of the provocation, was grounds for dismissal. Lindy felt she was entitled to protect herself and would do the same again. I repeated my advice.

Lindy would like the matter of the assault by Kevin Shaw on her fully investigated by somebody higher! - Felt she was being harassed! Has had legal advice.”

Hastings Shire Council Report

87 In late 1998, Ms Denmeade complained to the Department of Local Government about the Respondent Council’s conduct of the investigation into her complaint. Hastings Shire Council was appointed to review that complaint. In a report dated 24 December 1998, aspects of the Respondent Council’s dealings with the complaints were criticised.

“Whilst recognising the efforts of the Director of Operational Services, Mr Atkins, in attempting to meet with Ms Hanratty on at least three separate occasions prior to 11 March, Council has again failed to appropriately respond to the issues raised by Ms Hanratty. The primary focus appears to have been Ms Hanratty’s return to work and while this is the ultimate objective, failure to resolve the individual issues she has raised (which Ms Hanratty sees as fundamental to her medical state), is unlikely to facilitate a successful return to work.

In the disciplinary process it is essential for management to act in a timely manner. The incident relating to the burn to Ms Hanratty’s right leg on 30 October 1997 and subsequent purchase of dressings from a local pharmacy on or about that date. Reference to the file indicates that the matter was not addressed until the interview of 22 December 1997. While the discipline process … reasonable time for investigation, the apparent 7-8 weeks delay in bringing the matter to her attention would effectively preclude any successful disciplinary action on the part of Council. If the matter is deemed sufficiently serious in nature and/or consequence it should have been pursued with her at the time of occurrence.

The continuing lack of correspondence or advice to Ms Hanratty concerning the outcomes of investigation into the three incidents by Mr K Finnie, their advice or referral of the matters to the Director of Operational Services is of concern.

Council must also clearly document staff dealings/matters to ensure a complete and thorough overview of the employment history of an individual. In this regard the personnel file of Ms Hanratty is significantly lacking in detail."

88 23 December 1997 As noted Ms Denmeade wrote to Mr Atkins on 23 December 1997 complaining about Mr Shaw and her meeting with Mr Finnie. She requested that the matter be dealt with as soon as possible.

89 She claimed that at about 9am she was approached by Kevin Shaw who said: “Have you got a problem? You’d wanna have a good think about it. I could’ve got you the sack if I wanted.” Ms Denmeade reported this to Mr Howe and asked him to “tell the office she was being harassed.”

90 Mr Howe contacted Mr Finnie and was told he was unavailable to see Ms Denmeade until the following day due to work commitments. Mr Howe advised Ms Denmeade and took her off normal duties and instructed her to mow at the depot till the meeting was held.

91 Ms Denmeade said she felt humiliated and distressed about that instruction and felt that she was in effect being demoted, albeit, temporarily. She said shortly after that she began to feel sick and advised Mr Howe she wanted to see a doctor. She saw a doctor who recommended that she take the rest of the day off. She left work and has not returned.

Findings and Conclusions

Allegation 1: pornographic material

92 Ms Denmeade alleges that at various times throughout her employment she found pictures of naked women attached to her locker door. This she contends constitutes unlawful conduct contrary to the provisions of s 25(2)(a) and s 25(2) (c).

93 We find that there was some material displaying naked women in parts of the workplace up until 23 December 1997. However, we cannot be satisfied that the offending material was attached to her locker during the short period that falls within the scope of our inquiry, that is, when Ms Denmeade was present at work, namely 6 November 1997 to 23 December 1997.

94 Accordingly this allegation is not substantiated.

Allegation 2: Derogatory comments

95 The evidence makes clear that throughout the course of her employment a number of Ms Denmeade’s colleagues made discursive comments on the ability of women to do “men’s work”. The evidence does not support a finding that the personally insulting comments Ms James refers to in her evidence were directed at Ms Denmeade. Nor is that claimed.

96 Ms Denmeade concedes that she was unable to recall when Mr Howe made the comments she has attributed to him. Absent such evidence there is insufficient basis to conclude that these alleged comments were made during the period that falls within the scope of this inquiry.

97 The evidence is clear that some of Ms Denmeade’s colleagues expressed the view that women were not welcome in “their workplace”. However, we do not find that these types of comments were repeatedly and relentlessly made to Ms Denmeade. These things are a matter of degree. “Harassment” connotes some sort of systemic approach, a constancy and a persistence in the conduct which causes discomfort, annoyance, embarrassment or hurt. It also implies an intention to embarrass or hurt or discomfort, or, at the very least, involves a reckless disregard for the alleged victim’s feelings. Occasional expressions of opinion, even if boorish or vulgar, do not have the necessary characteristic of persistence which constitutes harassment.

98 We do not doubt that some of the men with whom Ms Denmeade worked are not sensitive to gender issues and may indeed even resent women working in what has traditionally been regarded as a male domain. Nor do we doubt that some of them, from time to time, made their views known to her, and that these views understandably offended her. However, having carefully considered the evidence, we are not satisfied that Ms Denmeade was targeted for harassment throughout the relevant period as she alleges because we do not think that there is sufficient evidence that the offending remarks were made with the necessary constancy. Given these findings, it is unnecessary to determine whether the offending remarks constitute a detriment within the meaning of s 25(2)(c) or less favourable conditions of employment for the purpose of s 25(2)(a).

99 Accordingly this allegation is not substantiated

Allegation 3: Key Incident

100 Ms Denmeade contends that that in removing the keys, the Respondent Council through Mr Shaw, unlawfully discriminated against her in contravention of s 25(2)(a) and/or s 25(2)(c) of the Act.

101 Before we examine this incident, Mr Shaw’s treatment of Ms Denmeade before November 1997 deserves attention. Mr Shaw was not called to give evidence. The evidence reveals he was something of an unusual character. He frequently drove in a reckless manner in the workplace. Ms Denmeade and Mr Cooper cited a number of incidents where colleagues, including Ms Denmeade, were potentially placed at risk through his actions, the cherry picker incident being among the more spectacular. The only incidents involving Mr Shaw that occurred after 6 November 1997 were the “spider” and “key” incidents. Except for a complaint of a general nature made by Mr Cooper, there is no evidence of any complaint being made about Mr Shaw for this reckless conduct.

102 On the evidence before us, the first time Ms Denmeade alleged that she had been subjected to harassment by Mr Shaw, before the key incident, was in her initiating complaint. The sole reference in that complaint to untoward behaviour during that period concerned an incident said to have occurred shortly after she commenced work.

103 The evidence as to whether Ms Denmeade was singled out for harassment is, at best, inconclusive. Mr Cooper paints a picture of a character who to some extent was indiscriminate in his recklessness. Ms Denmeade, in contrast, firmly believes that she and her few other female colleagues were singled out for harassment. Ms Denmeade is undoubtedly sincere in her belief. On the evidence before us, however, we cannot be satisfied that this was so. There is another highly plausible explanation of Mr Shaw’s behaviour which makes it difficult to determine whether he was attempting to harass Ms Denmeade. In reaching this conclusion, we take into account the narrow scope of the allegations concerning Mr Shaw as set out in the initiating complaint and the absence of any evidence that these allegations were raised at the meeting with Mr Finnie on 23 December.

104 We find that, from time to time, Mr Shaw annoyed his work colleagues, including Ms Denmeade, and acted in a reckless manner around them. However, we cannot be satisfied that Ms Denmeade was, as she alleges, “singled out” by him for some sort of “special treatment”.

105 We turn now to consider the evidence about the key incident. There is no direct evidence that Mr Shaw commandeered the keys because Ms Denmeade was a woman. Ms Denmeade must therefore rely on circumstantial evidence. We understand her to submit that, as it was common practice for vehicles to be left unattended with keys in place, Mr Shaw’s actions can only be seen as vindictive or unreasonable. Further, she argues that his motivation in taking the keys must be viewed against a background of ongoing harassment.

106 We accept that it was common practice (though not necessarily universal) for keys to be left in unattended Council vehicles for short periods. It does not follow, however, that a supervisor who removed the keys from an unattended vehicle did so to “get at” the relevant employee. It is possible that Mr Shaw took the keys to antagonise Ms Denmeade, as she speculates was the case. Equally it is possible that he took the keys because he was concerned that, if the vehicle was stolen, he, as supervisor, may have been held to account.

107 The evidence does not support an inference being drawn that one of the reasons Mr Shaw acted as he did was on the grounds of Ms Denmeade’s gender. Having made this finding it is not necessary to consider whether the treatment was less favourable. Accordingly, this allegation does not constitute unlawful discrimination.

Allegation 4: Spider Incident

108 It is common ground that Mr Shaw flicked a spider onto Ms Denmeade’s face and that she retaliated by punching him. Both say they are scared of spiders.

109 As noted earlier, Mr Shaw did not give evidence in these proceedings. His explanation that he did not intentionally flick the spider reported by Messrs Finnie, Atkins and Grant and Ms Harding, has not been tested. The one piece of evidence, other than that given by Ms Denmeade, suggesting that Mr Shaw deliberately flicked the spider at her is the second-hand hearsay note recorded in Ms Harding’s report of 16 April 1998.

110 We do not doubt that Ms Denmeade’s belief that the spider did not find its way on to her by accident is genuinely held. She had a ringside seat from which to observe Mr Shaw’s actions and is the only person to give tested evidence about the incident in these proceedings. Under cross-examination her account was unwavering. Her observations must be given significant weight.

111 Ms Denmeade must necessarily speculate about what Mr Shaw’s intention may have been. That she has inferred an intention to throw the spider on her is understandable, but an innocent hypothesis is also available. Mr Shaw’s reported account that he was attempting to eject the spider from the truck, is inherently plausible. The evidence of a possible admission by Mr Shaw is second-hand hearsay and that type of evidence is generally regarded as being highly unreliable, especially when the alleged source of the original representation has not given evidence. While it is evidence that we can take into account, it cannot be given great weight.

112 Given that Mr Shaw has not given evidence, it is difficult for the Tribunal to make any finding. He has given an explanation which, on its face, is plausible. Ms Denmeade may well be correct but it is virtually impossible on the evidence before us to be comfortably satisfied that that is the case. After all she is not an independent witness to the event. On balance, however, we cannot be satisfied that Mr Shaw intentionally flicked the spider onto Ms Denmeade.

113 Even if, for argument’s sake, the evidence were interpreted as showing that Mr Shaw intentionally flicked the spider at Ms Denmeade, the question remains whether he did so because Ms Denmeade is a woman as opposed to a colleague upon whom he was perpetrating one of his practical jokes or reckless pranks.

114 On the grounds of We are not satisfied that this treatment i.e. the flicking of a spider, whether this was intentional or unintentional, was less favourable treatment on the ground of Ms Denmeade’s sex. This conduct may have constituted some sort of assault upon Ms Denmeade, but we cannot be satisfied that it constituted unlawful, gender-based discrimination.

Allegation 5: Mr Finnie’s treatment of Ms Denmeade-22 December meeting

115 We understand Ms Denmeade to contend that the Respondent Council through Mr Finnie’s conduct of the 22 December meeting, unlawfully discriminated against her on the ground of her sex pursuant to s 25(2)(a) and / or s 25(2)(c) of the Act, by, first, issuing a verbal warning about hitting Mr Shaw, second, by raising two unrelated matters and third, by generally harassing her in the course of that meeting.

116 Sanction Imposed We turn now to examine whether the sanction of a verbal warning could be said to constitute less favourable treatment. Ms Denmeade argues that this sanction was demonstrably harsher than that meted out to other employees, citing Mr Gorman (the union meeting incident) and Mr Shaw (the spider incident) as examples. Mr Gorman was issued with a letter formally placing him on probation. Mr Shaw was questioned by Mr Finnie about the spider incident and no disciplinary action was taken.

117 While neither example relied on by Ms Denmeade in our view could be said to constitute an actual comparator, they do offer some insight into the way Mr Finnie dealt with intransigent staff. Mr Gorman lost his temper and verbally abused a co-worker in a threatening manner. Ms Denmeade’s conduct on the other hand was a one-off retaliatory act, albeit a physical assault. It is not surprising therefore that Mr Gorman was disciplined more harshly than Ms Denmeade. He was formally placed on probation and given a letter to that effect. Ms Denmeade on the other hand received a verbal warning.

118 Ms Denmeade holds the view that the punishment afforded Mr Gorman did not fit the crime and that he should have been directed to issue a written apology. She might be right. Equally it could be said that Mr Finnie’s treatment of Ms Denmeade was overly lenient. After all she had assaulted another member of staff, albeit in her eyes under provocation. The sanctions imposed on Mr Gorman and Ms Denmeade, in our view, fall at the light end of the scale. But the issue for us to determine is not whether Mr Finnie should have dealt with Mr Gorman more severely but rather whether it supports a finding that Ms Denmeade was treated less favourably. We are not satisfied that it does.

119 No disciplinary action was taken against Mr Shaw. Apparently Mr Finnie had concluded that he had acted without intent or at worst that it was a workplace prank. In those circumstances, we are not persuaded that the failure to discipline Mr Shaw could be considered more favourable treatment.

120 In the absence of an actual comparator we are obliged to turn to a notional comparator namely a hypothetical male employee who punched a colleague believing he had been provoked. The evidence shows that Mr Finnie had the option of sacking Ms Denmeade if he took the view that she had assaulted a work colleague. It is clear that he did take that view, yet he did not exercise the option. He appears to have taken the view that Ms Denmeade had over-reacted to Mr Shaw’s behaviour but decided to give her another chance, as Mr Shaw had not made a formal complaint. (It might also be observed here that for all Mr Shaw’s faults, when given the golden opportunity to engineer Ms Denmeade’s sacking, he refused to take it.) Taking into account all relevant factors including the nature of the misconduct and the severity of the penalty, we are not persuaded that the evidence supports a finding that our hypothetical comparator would have been subjected to more favourable treatment.

121 On the grounds of In the interests of completeness we turn to the issue of causation. There is some evidence before us about the way Mr Finnie treated Ms Denmeade before the 22 December meeting. It is not claimed that he voiced the misogynist views purportedly held by some of Ms Denmeade’s colleagues. We accept his evidence that he saw Ms Denmeade as a capable and diligent, if somewhat difficult, employee. This is supported by his decision to override Mr Howe’s recommendation regarding her promotion.

122 There is no evidence that Mr Finnie’s treatment of Ms Denmeade before 22 December may have been contaminated by gender. This does not, of course, establish that it played no role in his decision to issue a verbal warning.

123 There is no direct evidence that Mr Finnie issued the warning on the grounds that Ms Denmeade was a woman. His explanation that he believed a warning to be an appropriate and fair response, objectively assessed, is difficult to fault and inherently plausible. She had, after all, assaulted a colleague. Had she been a man, it would have been remiss of him, in the circumstances, not to have issued a warning in similar terms. We are not persuaded that gender played any role in Mr Finnie’s decision.

124 Conduct of the Meeting Much of the evidence on this issue is not in dispute. Mr Finnie raised two unrelated issues at the meeting. Ms Denmeade felt bombarded. She said Mr Finnie’s tone was threatening. This is denied.

125 The evidence shows that the meeting was not a friendly afternoon chat. Mr Finnie firmly told Ms Denmeade that her behaviour was unacceptable, a view she did not share. Ms Denmeade vigorously defended her actions. Mr Finnie apparently thought Ms Denmeade’s response to being disciplined was incredible. This is reflected in the tone of his file note made following the meeting: “Lindy would like the matter of the assault by Kevin Shaw on her fully investigated by somebody higher! - Felt she was being harassed! Has had legal advice.” While firm views were exchanged we do not accept the claim however that Mr Finnie acted in an aggressive manner.

126 The author of the Hastings Shire Council report dated 24 December 1998 shared Ms Denmeade’s opinion that it was unfair to raise the key and chainsaw incidents, out of time and in the context of a disciplinary meeting. Mr Finnie argued that it had not been possible to raise these issues on an earlier occasion on account of Ms Denmeade’s absence from work (an assertion disputed by her). While this may have been so, it was open to Mr Finnie to defer these matters or, given the passage of time, not to raise them at all. None were urgent. Loading up the meeting with relatively minor misdemeanours clearly added to the tension in that meeting.

127 That said, the focus of our inquiry is not whether Mr Finnie could have managed the situation better. Nor is the focus on whether he did or did not comply with grievance handling protocols or did or did not afford Ms Denmeade procedural fairness. The issue we are called to determine is whether the necessary elements of causation and less favourable treatment are made out.

128 We are not persuaded that gender played any role in Mr Finnie’s decision to conduct the meeting in the manner he did. In reaching that conclusion, we adopt the reasoning in respect of the allegations concerning the imposition of the sanction. Nor are we satisfied that the treatment afforded Ms Denmeade was less favourable than a male employee in comparable circumstances would have received.

129 Accordingly Mr Finnie’s conduct of the meeting and the sanction imposed by him does not in our view constitute unlawful discrimination.

Allegation 6: Request for a meeting -- 23 December 1997

130 We understand this allegation to be that the first respondent, in refusing to meet with Ms Denmeade on 23 December and by directing her through Mr Howe to work on mowing duties, unlawfully discriminated against her on the ground of her sex pursuant to s 25(2)(a) and s 25(2)(c) of the Act.

131 A detriment To succeed in her claim under s 25(2)(c), Ms Denmeade must establish that her treatment constituted a detriment. The meaning of “detriment” was considered in Bonella v Wollongong City Council [2001] NSWADT 194 at [50]:

“…detriment” should be given its common meaning of "loss, damage or injury". It has also been held in those cases that "the detriment suffered by the complainant must be real and not trivial" and "whether something constitutes a detriment must be determined objectively and not subjectively" (see Sivananthan v Commissioner of Police, NSW Police Service [2001] NSWADT 44 [at 41]). This is not a case of an employee whose repeated complaints of harassment were ignored.
132 This was only the second time that Ms Denmeade had complained about Mr Shaw (the first complaint having been raised in the context of the spider incident). Ms Denmeade was told she could have a meeting the next day. There is no evidence to suggest that the transfer to mowing duties was anything but a temporary arrangement designed to separate two apparent antagonists. In any event, the duties to which Ms Denmeade was transferred do not, on the face of them, appear to have been demeaning or humiliating compared with her normal duties.

133 Ms Denmeade was anxious to meet and report Mr Shaw’s threat. She saw any delay as intolerable. The test is not whether, in Ms Denmeade’s view, she was subjected to a detriment. The evidence objectively assessed must support such a finding. We are not satisfied that it does. At best any detriment suffered was trivial. We are not persuaded that the alleged treatment constitutes a detriment for the purpose of s 25(2)(c).

134 Could it be said however that the treatment complained of constitutes unlawful discrimination for the purpose of s 25(2)(a)? There is no evidence of an actual comparator. We are not satisfied that a male employee in comparable circumstances would have been treated more favourably. Nor do we find one of the reasons for this treatment was Ms Denmeade’s sex.

135 Accordingly these allegations of unlawful discrimination are not substantiated.

Allegation 7: Mr Shaw’s “threat”– 23 December 1997

136 We accept Ms Denmeade’s account that Mr Shaw said to her: “Have you got a problem? You’d wanna have a good think about it. I could’ve got you the sack if I wanted.”

137 It is difficult, however, to see how this statement could be construed as evidence of less favourable treatment than Mr Shaw might have meted out to a male colleague who had punched him in the manner in which Ms Denmeade had. In fact, at least on one reading, she may have received more favourable treatment from him than a male might. We cannot say. It is not even entirely clear that the statement should be construed as a threat by Mr Shaw to Ms Denmeade. On balance, we are not satisfied that the evidence supports a finding of less favourable treatment in respect of this complaint.

138 Accordingly this allegation of unlawful discrimination is not substantiated.

Allegation 8: Failure to facilitate a return to work

139 Ms Denmeade contends that the Respondent Council failed to take reasonable steps to facilitate her return to work. Specifically it is alleged that Council failed to address her concerns that the workplace was unsafe. If accepted these claims could constitute unlawful conduct contrary to the provisions of s 25(2)(a) and s 25(2)(c).

Background and Evidence

Workers Compensation Claim

140 In mid-January 1998 psychologist Gary Grant on behalf of the Respondent’s Council insurer, the GIO conducted a work-related stress assessment. Mr Grant in his report to the GIO stated:

“I am left with the impression that Ms Hanratty feels overwhelmed by the circumstances which have occurred and work and unable to know how best to handle the conflicts which seem to be directed at her. Clearly, she perceives it as unwarranted and feels very angry towards the men involved and equally upset by the perception of the Council management which she perceives as being dismissive.
141 Mr Grant concluded that Ms Denmeade reported symptoms consistent with a diagnosis of Acute Stress Disorder.

142 In early 1998, Professional Injury Management (PIM) was contracted by the Respondent Council’s insurer, GIO, to act as the rehabilitation provider to Ms Denmeade. On 1 May 1998, Ms Harding, who had carriage of the matter for PIM, reported to the GIO that attempts at rehabilitation had been unsuccessful. Ms Harding said that Ms Denmeade “is not co-operating with reasonable suggestions for assisting her return to work.” Ms Harding’s role was ended at the request of Ms Denmeade.

143 In August 1998 CSR was appointed as rehabilitation provider. A rehabilitation plan was designed. Ms Denmeade was invited to attend a meeting on 23 September attended by CSR and representatives of the Respondent Council to review that plan. Ms Denmeade declined to attend.

Meetings with Council

144 On 11 March 1998 Ms Denmeade met with Richard Atkins, Director of Operational Services. Two earlier scheduled meetings had been postponed. At that meeting Ms Denmeade outlined the incidents that in her view forced her to leave work. According to Ms Denmeade Mr Atkins reassured her that she had Council’s support and there was no intention she would be dismissed. He emphasised that he did not want her to return before she felt safe and comfortable.

145 On 23 March a further meeting was held. According to Ms Denmeade, Mr Atkins said that after investigating her concerns he had concluded that: the behaviour of the “offenders” was not inappropriate and that no disciplinary action would be taken. At that meeting a number of return-to-work options were put forward by Council. By letter dated 27 March 1998 Mr Atkins confirmed these options:

§ A mediation session chaired by an independent mediator with members of Ms Denmeade’s work gang;

§ The nomination of a contact person who could be called upon by Ms Denmeade if any problems arose;

§ A graded return to work with Ms Denmeade’s existing gang, another gang or alternative duties.

146 By letter, dated 21 April 1998, Ms Denmeade rejected these proposals. She stated that Council’s failure to discipline relevant staff had “reinforced behaviour” and resulted in “more animosity created toward me”. She stated that the options proposed were “non options”, and did nothing to make the workplace safer and recommended that Council review “its EEO policy and its own ethics”.

147 In cross-examination Ms Denmeade identified the “offenders” as Messrs Finnie and Shaw. She said she did not want them sacked but did want “appropriate action” taken. She said she might have been happy with a letter declaring that their behaviour was inappropriate. Mr Atkins wrote again on 23 April inviting her to attend a mediation session organised for 6 May. This proposal was rejected.

Findings and Conclusions on Allegation 8

148 While it is not entirely clear from her submissions, we also understand Ms Denmeade to contend that without a proper investigation of her complaints, a return to work was not feasible.

149 Shortly after meeting with Mr Denmeade, Mr Atkins interviewed Messrs Howe, Shaw and Finnie and concluded that their conduct in respect of Ms Denmeade in December 1997 did not amount to misconduct. There is no evidence that Ms Denmeade had at that time raised the more general allegation of workplace harassment, in particular that involving Mr Shaw. Apparently Council first learnt of those allegations on receipt of the initiating complaint, after 31 July 1998 [(President’s Report Tab 5). (Council was aware through Mr Finnie of the allegations involving Mr Gorman and Mr Naera who had left the Council in early 1998.)

150 There may well have been shortcomings in how the Council investigated Ms Denmeade’s complaints, particularly at the initial stage. It could be argued that Mr Finnie should have promptly questioned Mr Shaw after hearing Ms Denmeade’s account of the spider incident. Ms Denmeade relies on the findings of the Hastings Shire Council report to support her contention that Council, in essence, ignored her complaints. While critical of the 22 December meeting, the scope of that report does not extend to a consideration of whether the Respondent Council failed to investigate Ms Denmeade’s complaint that her work environment was unsafe.

151 The evidence establishes that Mr Atkins attempted to meet Ms Denmeade before the March meeting but this proved not possible because of her health. After hearing her side of the story Mr Atkins interviewed the alleged “offenders” and concluded that their conduct did not amount to misconduct. That finding in our view was open to him on the material available. Ms Denmeade’s contention that the inquiry was inadequate is not based on any evidence of procedural shortcomings. It is rather grounded in the firm belief that Mr Atkins would not have reached the conclusion he did if a “better’ investigation been conducted.

152 The key issue however is not whether Council’s conduct of the investigation into the allegations then known was appropriate and reasonable, however defined. Rather the issue is whether, in the conduct of those investigations, Ms Denmeade was afforded less favourable treatment. There is no actual comparator and accordingly we must look to a hypothetical comparator. Having carefully examined the available evidence, we cannot be comfortably satisfied that this treatment could be considered less favourable. Nor do we find that one of the reasons Council conducted the investigation as it did on the grounds of Ms Denmeade’s gender.

153 We turn now to the return to work options advanced by Council. Ms Denmeade was consulted. A number of options were proposed. All involved measures to address Ms Denmeade’s stated concerns for her safety. Except for the “appropriate action” option, Ms Denmeade did not suggest any alternatives. We do not agree that the options were inherently unreasonable.

154 It is apparent that the stumbling block as far as Ms Denmeade was concerned was Council’s refusal to discipline Mr Shaw and Mr Finnie. The stated reason for the Respondent Council’s refusal to acquiesce was that it had formed the view that the disputed conduct did not amount to misconduct. There is no direct evidence that one of the reasons the Council put forward the options it did, rather than not embracing Ms Denmeade’s counter-offer, was that Ms Denmeade was a woman. Nor, in our view, is there any evidence which would entitle us to draw such an inference.

155 Accordingly, Council’s investigation into the complaint and the steps taken to facilitate a return to work do not, in our view, constitute unlawful discrimination.

Allegation 9: Mr Finnie’s comment to Ms Harding

156 Ms Denmeade alleges that the first respondent, through Mr Finnie, subjected her to a detriment by telling Ms Harding that she was a difficult person to work with.

157 In a report to GIO dated 16 April 1998, Ms Harding noted: “Keith [Finnie] described Lindy [Denmeade] as a difficult person who has a history of being difficult and having altercations with other employees within Council”. That comment was purportedly made during the course of an interview conducted by Ms Harding concerning the events which precipitated Ms Denmeade’s departure from work.

158 This was a comment which was probably defamatory of Ms Denmeade but, in the context in which it was made, almost certainly defensible under the provisions of the Defamation Act 1974. As it involved a possible loss of reputation, even within the narrow confines of the confidential relationship between PIM, Ms Shaw and Mr Finnie, it could nonetheless be construed as a detriment for the purpose of s 25(2)(c).

159 The important issue, however, is whether Ms Denmeade’s gender played any role in Mr Finnie’s conduct. Mr Finnie was obliged to assist Ms Harding in her inquiries. There is nothing to indicate that the comment was gratuitous and not relevant to the matters in issue. The interview was confidential. This was not the first time Mr Finnie had expressed this view (See Exhibit D6 Attachment R). On the material before us, this opinion could not be characterised as perverse or untenable. It would almost certainly attract qualified privilege under the Defamation Act. More importantly, it is not inherently gender-based. On the contrary, whether true or not, or defensible or not, it is the type of comment which could well be made by an employer to a counsellor about a male employee being counselled in respect of rehabilitation for work.

160 It would appear that Mr Finnie’s comment was an expression of an honest opinion. There is no evidence to suggest otherwise. His general history demonstrates support for and tolerance of Ms Denmeade. There is nothing to indicate that in making the comment he was discriminating against her on the basis of her gender. We are not reasonably satisfied that the necessary element of causation has been made out.

161 Accordingly these comments, in our view, do not constitute unlawful discrimination.

Allegation 10: 28 January 1999 meeting

162 Ms Denmeade contends that the Respondent Council, in holding the 28 January meeting and through the actions of Messrs Grant and Evans at that meeting, victimised her contrary to the provisions of s 50 and subjected her to unlawful discrimination pursuant to s 25(2)(a) and/or s 25(2)(c).

Evidence

163 In early December 1998 the Respondent Council received from the Board a copy of Ms Denmeade’s complaint dated 10 October 1998 and, upon receipt, commissioned Mr Grant to produce a report. Before this Mr Grant had been contracted to interview staff identified in Ms Denmeade’s complaint. Those interviews were conducted in August 1998.

164 A meeting of outdoor workers was held on 28 January 1999. Mr Grant acted as convenor. Messrs Evans and Cooper attended part of that meeting. Mr Cooper said he left about three quarters of the way through. According to Mr Cooper, Mr Evans came in and out of the meeting.

165 Mr Evans’ evidence, broadly supported by Mr Grant’s, was that he left the meeting shortly after introducing Mr Grant. Mr Evans claimed that he intentionally left early, as he was concerned that his presence might stifle discussion. He also claimed Mr Cooper left with him.

166 According to Mr Evans, the meeting was held to discuss a number of problems that had been brewing in the parks and garden division and not just those relating to Ms Denmeade.

167 Mr Cooper claimed that Mr Evans told the assembled meeting that “money, greed and revenge” lay behind Ms Denmeade’s complaints. In evidence in these proceedings, Mr Evans denied those comments. In a letter to the Board dated 14 June 1999, Mr Evans claimed that while he did not have a clear recollection of the words used “from my reading of the claim satisfaction, revenge and compensation do appear to be her motives”.

168 Mr Grant read out each complaint at the meeting. According to Mr Cooper after each complaint Mr Grant said, “that is not true… that is not a valid complaint.” Mr Grant denies expressing his own view and claims he merely summarised the findings of Council thus far. Meeting attendees were then invited to provide any further information about the complaint.

169 In the course of the meeting, outdoor worker Jim Rose called out “ she’s a cunt”. According to Mr Cooper, Mr Grant laughed and proceeded to write “cunt” on a whiteboard in large print. Mr Grant denies that. During the meeting, Wayne Fulford announced, “I told her women shouldn’t be working at the depot”.

Findings and Conclusions

Victimisation

170 Ms Denmeade must prove on balance:

§ that a person or persons (“the discriminator/s”);

§ subjected her;

§ to any detriment in any circumstances;

§ on the ground that she has done one of the things set out in sub-paragraphs (a),(b), (c) and (d) of s 50(1) of the Act.

171 The Respondent Council and Messrs Evans and Grant were aware at all relevant times that Ms Denmeade had made a complaint of unlawful discrimination. The issues for determination are therefore, first, whether Ms Denmeade was subjected to a detriment and, if so, whether she was subjected to that detriment “on the ground that” she had made an allegation against the first respondent. It is for Ms Denmeade to prove a nexus between the detriment (if that is established) and the making of the complaint of sex discrimination.

172 The phrase “subject to” in the context of s 50 of the Act implies a deliberate decision by one person to do something to another or which directly concerns that other person with the actual or constructive knowledge that the other person will be affected in some fashion by that decision. For someone to be subjected to that particular conduct, he or she must be the object of that conduct. In short, the "discriminator" must intend to cause "the person victimised" to undergo some experience.

173 It is not necessary for Ms Denmeade to show that the first respondent, through Mr Evans or Mr Grant, intended to subject her to a detriment for that element of the alleged victimisation to be established. (See Waters v Public Transport Commission (1992) 173 CLR 349 at 359.) Of course, if there is evidence of intention to cause detriment that would be powerful evidence in a victimisation complaint. However, it frequently will be the case that a person is subjected to a detriment without the alleged "discriminator" being motivated in that way. What must be established in the context of this inquiry is that the first respondent, through its agent or employee/s, subjected Ms Denmeade to a detriment because she had made a complaint.

174 What then is meant by the words "on the grounds of" in the context of s 50(1)? Section 4A of the Act which provides that, where an act is done for two or more reasons, and one of the reasons consists of unlawful discrimination, for the purposes of the Act, the act is taken to have been done for that reason, has no application. It is instructive, therefore, to look at the relevant cases dealing with the meaning of “on the grounds of” 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] prior to the 1994 amendment two approaches were generally followed. The first required 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 required a determination of 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.) More recently in Sivananthan v Commissioner of Police, NSW Police Service [at 43] the following approach was adopted “it is sufficient if the unlawful reason, that is the fact that the complainant had lodged complaints of ... discrimination, had a real causative effect in the sense that but for its presence the act complained of would not have occurred”".

175 We first consider whether Ms Denmeade was subjected to a detriment.

176 The only significant factual matters in dispute are whether Mr Grant made derisive comments about the veracity of Ms Denmeade’s complaints, whether Mr Evans said the words attributed to him by Mr Cooper, whether Mr Grant wrote the word “cunt” on the whiteboard and whether the dominant purpose of the meeting was to discuss Ms Denmeade’s complaints.

177 We find that the focus of the meeting was on the complaints made by Ms Denmeade. It may be, as Mr Evans now contends, that the original plan was that other matters would also be discussed but there is simply no evidence that this occurred. It is clear that “but for” Ms Denmeade’s complaints, the meeting is unlikely to have occurred, or certainly to have been conducted in the way it was.

178 On balance we cannot be satisfied that Mr Evans said the words cited by Mr Cooper although it is apparent from his own evidence that he held the view attributed to him in more coloured language by Mr Cooper.

179 While we accept that Mr Cooper believed that the views expressed by Mr Grant [after reading out each complaint] were his own, we have no particular reason to reject Mr Grant’s explanation that he was merely summarising the views of Council. It may be that Mr Grant failed to make this sufficiently clear to the assembled meeting and Mr Cooper was not alone in his belief. Without additional evidence we have no way of knowing.

180 Much evidence was given about whether Mr Grant wrote the word “cunt” on the whiteboard. We cannot be satisfied that he did, but in any event this issue in our view is something of a distraction. We do not accept Ms Denmeade’s submission, as we understand it, that the meeting was called for the purpose of inciting hostility towards her and discouraging employees from supporting her in her complaint. However, the evidence, in our view, nevertheless supports a finding that the meeting constituted a detriment. In the course of the meeting the details of her many grievances were aired. A number of Ms Denmeade’s assembled colleagues were displeased with her and said so.

181 It was a very poor way of conducting any sort of investigation into the merits of the complaints made by Ms Denmeade, and that should have been obvious to the organisers of the meeting from the outset. If the purpose of the meeting was to get to the heart of the matters she had raised, the appropriate course would have been to take evidence from the relevant witnesses individually, as Mr Grant had done in the later part of 1998. To discuss the matters in a group had the potential to taint any evidence given by all the witnesses present at the meeting and, whether intentionally or not, to place witnesses under peer pressure to accept the group view.

182 Hardly surprisingly, when the details of the meeting became known, as was inevitable, Ms Denmeade felt humiliated and embarrassed. This in our view constitutes a detriment.

183 In our view that outcome was a foreseeable but unintended consequence of Council’s decision to hold the meeting. Accordingly we find that Ms Denmeade was “subjected” to a detriment.

184 The critical issue is whether Ms Denmeade was subjected to that detriment “on the grounds” she made a complaint of sex discrimination. It goes without saying that “but for” the complaints to the Board, the meeting would not have proceeded. But by January 1999 a number of intervening events had occurred. An independent report had been handed down critical of aspects of the Respondent Council’s dealings with Ms Denmeade. Ms Denmeade had responded in detail to the Respondent Council’s reply to her initiating complaint. A new General Manager had been appointed who apparently took the view that a review of the inquiries carried out to date was warranted. As made clear from Mr Grant’s subsequent report dated 15 February 1999, the Respondent Council was clearly concerned to ensure that its actions thus far would stand up to external scrutiny. While we accept this was the case, nevertheless it appears to us to be self-evident that the fact that Ms Denmeade had made a complaint to the Board was the “real or operative” ground or “significant factor” that laid behind Council’s decision to hold the meeting and conduct it through Messrs Grant and Evans in the way it did.

185 Given this finding the necessary elements of victimisation are made out.

186 There is no evidence to indicate that the Respondent Council did not authorise the decision to hold the meeting and conduct it in the way it was. Accordingly we find that the Respondent Council acted in contravention of s 50 of the Act.

Allegation 11: 28 January meeting-discrimination

187 We are not satisfied that the evidence supports a finding that in calling the meeting, and in the conduct thereof, that the Respondent Council afforded Ms Denmeade less favourable treatment than might have been given to a hypothetical male comparator. Nor do we find that one of the reasons Council called the meeting and conducted it in the manner it did, was on the grounds of Ms Denmeade’s gender. In our opinion, the meeting was called for the reasons we have outlined above, not because Ms Denmeade is a woman.

188 Accordingly this allegation of unlawful sex discrimination is not made out.

Allegation 12: the Grant Report

189 We understand Mr Denmeade to allege that the first respondent, through Mr Grant, victimised her contrary to s 50 and unlawfully discriminated against her contrary to s 25(2)(c) by the production of a report largely unfavourable to her. Ms Denmeade contends that the report was biased and failed to include statements made that support her case: Amended Points of Claim paragraph 31(1).

Findings and Conclusions

190 The source of information used in the report is identified as the 28 January meeting and subsequent interviews with Mr Howe and Mr Egan. The report lists each complaint in turn and the elicited response. The responses are largely unfavourable to Ms Denmeade.

191 The report noted, “With one exception a unanimous view was expressed that Ms Denmeade was a difficult person to get on with.” Ms Denmeade testified that Cliff Batteson, who had attended the meeting, told her that he said at the meeting that he had no problems working with her.

192 The stated scope of the report was to interview staff “in order to learn which staff might be in a position to either substantiate or refute the complaints made by Ms Denmeade”. The report does not take the form of a verbatim transcript. It purports to summarise views expressed by Messrs Howe and Egan and those who attended the 28 January meeting. There is no evidence before us that the comments recorded by Mr Grant were not made or that other materially relevant comments were omitted (or not summarised). That the comments made by Messrs Rose, Fulford and others were not reported does not indicate, as we understand Ms Denmeade to argue, that the report was misleading. The report does not purport to assess the veracity of either the comments made by staff or the initiating allegations.

193 It may be as Ms Denmeade asserts that some staff did not share the recorded consensus (bar one) that among other things, she was a difficult person to work with. There is, however, no evidence to indicate that such views were expressed.

194 It appears to us on the evidence before us that the report summarised the views expressed in an objective fashion. We do not consider that the fact that some comments were not reported such as Mr Rose’s vulgar retort, indicates as Ms Denmeade argues, that the report is in some way misleading. Rather in our view, it indicates that those comments were not considered by Mr Grant to be relevant to the inquiry.

195 The report does not include Ms Denmeade’s response and it is necessarily unbalanced, but in our opinion, there was no intentional bias on that account.

196 We are not persuaded that through the production of the report Ms Denmeade was subjected to a detriment within the meaning of s 50 and s 25(2)(c).

Allegation 13: Termination of Employment

197 Ms Denmeade contends that Council’s decision to dismiss her constitutes unlawful discrimination under s 25(2)(c) and victimisation under s 50 of the Act.

Evidence

198 By 7 December 1999 Ms Denmeade’s workers compensation payments had ceased and all her leave entitlements were exhausted. In early December 1999 Mr Evans told her she was required to put in an application for leave without pay. Ms Denmeade sought legal advice and was advised to ask the Council to put that directive in writing.

199 Ms Denmeade said she left a number of phone messages for Mr Evans between 10 and 22 December and none were returned. Mr Evans claimed not to recall receiving any such message. On 22 December 1999 Ms Denmeade left for an extended camping trip and did not notify the Respondent Council of her absence.

200 In a letter dated 24 December 1999, Mr Finnie, then Acting General Manager, advised Ms Denmeade that while she had provided a medical certificate for the period up to 31 March 2000, she had no leave left. He stated “As discussed with you on 3 December 1999, you are required to apply for leave without pay. It is not automatic, and you are currently absent without leave. This requirement was clearly explained to you and you have chosen to ignore the advice provided … you will need to address this situation quickly or Council will have no other option but to consider you to have abandoned your employment.” The letter requested Ms Denmeade to return the leave application issued or advise Council by 14 January 2000 of her situation.

201 In a letter dated 24 January 2000, Alan Burgess, General Manager, notified Ms Denmeade that as from 21 January 2000 her employment had been terminated on the grounds that she had abandoned her employment, having been absent without leave from 16 December 1999.

202 In a letter dated 1 February 2000, Ms Denmeade asked council to reconsider its position and applied for leave on the basis of financial hardship. Mr Burgess responded on 7 February 2000 that the decision was irrevocable as her former position had been filled.

203 According to Ms Denmeade, before leaving on the camping trip she arranged with a friend to collect and forward her mail. She claimed not to have received Council’s letter of 24 December until late January. In cross-examination, she conceded she did not attempt to contact the Council by phone after leaving for her holiday.

204 Mr Evans testified that at the time the decision was made to terminate Ms Denmeade’s employment, he was unaware that she was away, and only became aware of that some time later. Both Mr Evans and Mr Finnie deny that Ms Denmeade’s gender or the fact of her having made a complaint of discrimination played any role in Council’s decision. Mr Evans said that at the time, he saw her apparent refusal to lodge a leave form as yet another example of her “wanting to do things on her own terms”. In his view, management had up until then treated her with kid gloves but by December 1999 that patience had grown thin.

Findings

205 We accept that Ms Denmeade did not lodge an application for leave on legal advice. We find that during the relevant period Ms Denmeade rang Mr Evans and those calls were not returned. We are not satisfied on balance that Mr Evans or any other manager was aware that Ms Denmeade had requested that she be issued with a written directive to submit a leave form.

206 Ms Denmeade did not receive Mr Evans’s letter of 22 December until some time after the deadline for reply had passed.

Allegation 12: Victimisation

Findings and Conclusions

207 It is not in issue that Ms Denmeade had been subjected to a detriment, namely the termination of her employment. All relevant officers were aware that a complaint of discrimination had been lodged.

208 The key issue to be determined is whether the first respondent through Messrs Evans, Finnie and/or Burgess took the decision to terminate Ms Denmeade’s employment “on the grounds” that she had made a complaint of discrimination.

209 Ms Nomchong submits that Council acted lawfully in treating Ms Denmeade’s employment as at an end, asserting that the evidence establishes that she had abandoned her employment. In addition Ms Nomchong submits that the Respondent Council was entitled to terminate Ms Denmeade’s employment at any time six months after the date she left work. While a correct statement of the law, this submission does answer why the first respondent finally acted to end Ms Denmeade’s employment. The issue is not whether Council was legally entitled to terminate the employment but whether the fact that she had made a complaint of unlawful discrimination was the reason that decision was taken.

210 It was open to the Council, having received Ms Denmeade’s explanation, not to treat her employment as ended. Ms Denmeade’s reply of 1 February gave an entirely reasonable explanation as to why she did not respond. Why then was that not accepted? The stated reason was that the position was filled. Mr Finnie candidly conceded that when the 14 January deadline was met with silence there was measurable relief within management ranks. This is hardly surprising. By that stage Ms Denmeade had been away from work for just over two years. Throughout that time significant resources had been spent on getting her back to work.

211 It is improbable that Messrs Finnie or Evans or any other manager was indifferent to Ms Denmeade’s allegations of discrimination. But we are not satisfied that this was the real or operative reason the Respondent Council, through its officers, acted as it did. The real reason in our view was that by this time there was no resolution in sight. It did not appear that Ms Denmeade had any intention of returning to work and she had placed a demand upon Council for a return to work that, from its point of view, was unreasonable and could not be accepted. She showed no signs of compromising. The patience of management was exhausted. An opportunity was presented to bring the whole sorry saga to an end and this was grabbed. In our opinion, the operative cause of Ms Denmeade’s sacking was not that she had complained of discrimination but that she did not appear to have any intention of returning to work.

212 Accordingly this allegation of victimisation is not substantiated.

Allegation 13: Termination-discrimination

213 There is no direct evidence that the first respondent terminated Ms Denmeade’s employment on the grounds of sex. Nor, in our view, does the evidence before us support such an inference being drawn.

214 For the same reasons as we have outlined in respect of the allegation of victimisation and the termination of employment, we take the view that this allegation of unlawful discrimination is not substantiated

Allegation 14: Aiding and Abetting

215 Given our finding that the first respondent did not contravene the Act in respect to its decision to terminate Ms Denmeade’s employment, s 52 of the Act, as a secondary liability provision, has no application.

216 Accordingly, this complaint against Mr Grant is not substantiated.

Sex Harassment

217 As set out in Paragraphs 24 to 32 of these reasons we understand the allegations of sex harassment to be that first, that Mr Shaw assaulted her with a spider and verbally threatening her; and second, that Mr Howe made derogatory and sexist remarks in her presence.

218 To constitute sexual harassment, Ms Denmeade must prove on balance in respect of each allegation first, that the relevant conduct was of a sexual nature; second, it was unwelcome; and third, was such that a reasonable person would have anticipated that she would be offended, humiliated or intimidated.

Allegation 15: Spider incident

219 It is somewhat difficult to see in what respect throwing a spider at a person could be construed as a sexual advance or a request for sexual favours. For the reasons given above in concluding that there is insufficient evidence to support the allegation of gender discrimination in respect of this incident, we take the view that the evidence is also insufficient to establish that the spider incident constituted sexual harassment.

Allegation 16: Threat by Mr Shaw

220 As noted above, we accept Ms Denmeade’s account of the words used by Mr Shaw. We are not satisfied, however, that that conduct was of a sexual nature. Accordingly this allegation of sex harassment is not substantiated.

Allegation 17: Comments by Mr Howe

221 It is unnecessary to determine this allegation given our findings about the timings of these comments. (See Paragraph 96.)

Damages

222 The final issue to be determined is what orders if any should be made in light of our finding that the complaint of victimisation in relation to the 28 January 1999 meeting has been substantiated. Ms Denmeade seeks various orders under s 113 of the Act including an order for damages (See Amended Points of Claim). We do not consider this an appropriate case to order an apology. In our view the only order available is an order for damages. We accept Ms Denmeade’s evidence that the meeting caused her great distress and embarrassment. It is apparent, of course, that the meeting was not the sole cause for her pain and suffering post January 1999. On her own evidence the meeting was but one of many matters that caused her pain and suffering. As acknowledged by Wilcox J in Hall v Sheiban (1985) ALR 503 at 543, the task of determining the appropriate level of damages for non-economic loss in a case of unlawful discrimination is notoriously 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."
223 In this matter we must also estimate what proportion of Ms Denmeade’s pain and suffering is referable to the sole contravention of the Act found by us. Taking into account all relevant factors we believe the appropriate sum for non-economic loss to be $4000. We are not satisfied that Ms Denmeade has suffered any economic loss on account of the Respondent Council’s contravention of the Act.

Costs

224 The respondents seek and are granted the opportunity to make submissions as to costs.

Orders and Directions

1. The complaints of discrimination on the ground of sex, sex harassment and victimisation made against the second to the seventh respondent (inclusive) are dismissed;

2. The complaint of aiding and abetting made against the seventh respondent is dismissed;

3. The complaint of victimisation against the first respondent in relation to Allegation 10 is upheld; the balance of the complaint/s of victimisation against the first respondent is dismissed;

4. The Applicant is awarded damages in the sum of $4000.

5. Parties granted leave to apply for costs. Application and submission for costs to be filed and served within 14 days of the date of these orders.