Ferreira v Wollongong Spanish Club Pty Ltd
[2005] NSWADT 57
•03/18/2005
CITATION: Ferreira & anor v Wollongong Spanish Club Pty Ltd & anor [2005] NSWADT 57 DIVISION: Equal Opportunity Division PARTIES: APPLICANT
Nivalda Ferreira
FIRST RESPONDENT
Wollongong Spanish Club Pty Ltd
SECOND RESPONDENT
Jose Arevalo
APPLICANT
Maria Sue Varga
FIRST RESPONDENT
Wollongong Spanish Club Pty Ltd
SECOND RESPONDENT
Jose ArevaloFILE NUMBER: 031134 & 031142 HEARING DATES: 5/10/2004-7/10/2004, 22/10/2004, 27/10/2004 & 11/11/2004 SUBMISSIONS CLOSED: 11/11/2004 DATE OF DECISION:
03/18/2005BEFORE: Needham J - Judicial Member; Nemeth de Bikal L - Non Judicial Member; Gill M - Non Judicial 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 1977CASES CITED: Aldridge v. Booth (1988) 80 ALR 1
D v. Berkeley Challenge Pty Ltd [2001] NSWADT 92
Hall v. Sheiban (1989) 20 FCR 217
R .v Equal Opportunity Board; ex parte Burns [1985] VR 317
Shaikh v. Commissioner, NSW Fire Brigades (1996) EOC 92-808REPRESENTATION: APPLICANTS
K Eastman, barrister
RESPONDENTS:
P Matters, agentORDERS: ORDERS MADE 9/2/2005; In the matter of Ferreira:-; 1. Mrs Ferreira be awarded damages, jointly and severally against the two respondents, in the sum of $17,500; 2. Leave granted to either party to relist the matter to argue the matter of costs within 14 days of publishing the reasons for decision in the matter; if matter is not relisted, then respondents to pay one-half of the applicant’s costs as agreed or assessed.; In the matter of Vega:-; 1. Application dismissed; 2. No order as to costs
The Parties and the Complaints
1 The two applications in this matter were heard together over six days in Wollongong and Sydney, evidence in one being (as so far as it was relevant) evidence in the other. Ms Nivalda Ferreira is the applicant in proceedings no 031134, and Ms Maria (Sue) Vega the applicant in proceedings no 131142.
2 The Wollongong Spanish Club Pty Ltd (“the Club”), the first respondent to each application, operates a business of a licensed club, set up for social purposes for the Iberian community of Wollongong. It is run by a Board of Directors. Mr Kenneth Vaughan was the Manager of the Club, to whom Mr Arevalo, the second respondent to each application, reported. Mrs Caballero is the licensee of the Club, and the Honorary Secretary of the Board of Directors.
3 Ms Ferreira was employed by the Club, from May 2002 until February 2003. She worked as a casual waitress, barmaid and cleaner at the Club. Mr Arevalo was the head cook at the Club, and so he and Ms Ferreira worked together in the Club kitchen. It is not disputed that Mr Arevalo and Ms Ferreira were “workplace participants” within the meaning of s 22B(9) of the Anti-Discrimination Act 1977 (“the Act”). In her work in the kitchen, Ms Ferreira’s work was supervised by Ms Vega.
4 Ms Vega was an assistant cook, and had “Supervisor” embroidered on her work shirts. Mr Arevalo was her supervisor, but she was employed by the Club and so was under the control of Mr Vaughan and the Board of Directors.
5 Each of the applicants worked on a casual basis. There was a roster on a board near the kitchen. Mr Vaughan was the person who set the rosters for the Club employees and for Mr Arevalo. Mr Benevente was the Assistant Manager of the Club, and he had responsibility for Ms Ferreira when she worked behind the bar.
6 Mr Arevalo was a volunteer. He worked for Bluestone Steel doing shift work, and when he was not so employed he worked as head chef at the Club. The Club restaurant commenced business under Mr Arevalo’s guidance on 13 May 2002. Ms Vega had worked with Mr Arevalo before, in the early to mid 90s, and in fact she suggested Ms Ferreira to Mr Arevalo for the position that Ms Ferreira filled.
7 Ms Vega and Ms Ferreira were friends before Ms Ferreira started work at the Club, and Ms Vega and her husband were friends with Mr Arevalo. Mr Arevalo had not met Ms Ferreira before she came to work at the Club.
8 Ms Ferreira complained to the Anti-Discrimination Board (exhibit A) on 7 March 2003 that she had been the subject of sex discrimination and sexual harassment in her employment, and of victimisation. It appears that the characterisation of the complaint as including victimisation was incorrect, and that head of complaint was not pursued at the hearing. The President of the ADB investigated the complaint and the matter was conciliated, but the result was not satisfactory and the complaint was referred to the Tribunal on 11 October 2003.
9 Ms Vega complained to the Anti-Discrimination Board on 10 March 2003 (exhibit E). Her complaint was of victimisation. The President referred her complaint to the Tribunal on 20 October 2003.
10 Ms Ferreira complains of the following breaches of the Act:-
- a) In breach of s 22B(6) of the Anti-Discrimination Act , the second respondent engaged in unlawful sexual harassment of her, in particular:-
- i. Mr Arevalo called her “my little one”;
ii. In August or September 2002, he embraced her when she was upset and tried to kiss her;
iii. He suggested she visit his home to try out his new quilt cover;
iv. In September 2002, he put his arms around her and tried to kiss her, and held her tightly and kissed her on the lips;
v. He tried to kiss her again in early September 2002;
vi. The next day, he grabbed her and pushed her against the wall, trying to grab her breasts and breaking her bra, and trying to kiss her.
vii. Ms Ferreira attempted to raise the issues with the Manager, Mr Vaughan, after telling Ms Vega of the incidents, but her attempts to resolve the issues failed, and she later left her employment.
c) The Club, in breach of s 25(2)(a) and (c) of the Act, discriminated against her and subjected her to a detriment in her employment.
11 Ms Vega complained that she was victimised within the meaning of s 50 of the Act, in that, after being involved in assisting Ms Ferreira to try to solve the problem of Mr Arevalo’s behaviour, her hours were cut to a point where it was uneconomic for her to remain working at the Club.
The Legislation
12 Section 22A of the Anti-Discrimination Act 1977 defines sexual harassment as follows:-
- “For the purposes of this Part, a person sexually harasses another person if:-
- (a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the other person; or
(b) the person engages in other unwelcome conduct of a sexual nature in relation to the other person, in circumstances which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated”.
13 Section 22B(6) provides:-
- “It is unlawful for a workplace participant to sexually harass another workplace participant at a place that is a workplace of both those persons”.
14 Section 24 of the Act provides:-
- “(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 … the perpetrator:-
- (a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances not materially different, the perpetrator treats or would treat a person of the opposite sex …”
15 Sub-s 25(2) of the Act states:-
- “It is unlawful for an employer to discriminate against a person on the ground 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 other detriment”
16 Section 50 of the Act, which deals with victimisation, provides as follows:-
- “(1) It is unlawful for a person (“the discriminator” to subject another person (“the person victimised”) to any detriment in any circumstances on the ground that the person victimised has:-
- (a) brought proceedings against the discriminator or any other person under this Act;
(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act;
(c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this of this Act; or
(d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person,
17 Ms Vega, as noted above, knew Mr Arevalo from working with him in the Club restaurant from about 1992 to about 1995. She considered him a close friend. Mr Arevalo agreed that that was the case. Ms Vega did Mr Arevalo’s house cleaning for him, and had the keys to his house. She was employed by the Club from May 2002 and worked variable hours. She says in her statement that she worked “full time (40 hours) a week” but this was not always the case. There was much evidence as to the variability and seasonality of work in the hospitality trade and it appears that Ms Vega suffered from that uncertainty in the scheduling of her work hours.
18 Ms Vega suggested to her friend, Ms Ferreira, that she apply for a job at the Club. She did so and started working at the Club in May 2002.
19 Neither Ms Vega nor Ms Ferreira say that they were told about sexual harassment policies or complaints procedures. While Mr Vaughan gave evidence that they were “in their induction, informed of their rights, obligations and protections under the Award”, and that a copy of the Award was displayed on the Staff Notice Board, it is clear that there was nothing which was either formally adopted or easily available for the staff to call upon. The Club, admittedly, was run on a fairly informal basis, with Mr Arevalo himself being a volunteer.
20 When Ms Ferreira started work, she described the atmosphere as very friendly and the employees and Mr Arevalo were all very close. She gave evidence that Mr Arevalo started calling her “my little one”. Ms Ferreira said in examination in chief that “First I thought oh, he’s just calling me “my little one” because I’m little and that’s it. I didn’t take it wrong, I didn’t take offensive”. She did not ask for him to cease calling her that name, or object in any other way. In cross-examination, she seemed to say that it was only after Mr Arevalo’s later conduct that she found being called “my little one” a problem.
21 In August or possibly in early September 2002, Ms Ferreira was working as a cleaner at the Club. She had come into work early and was talking to friends, including Ms Vega. She was crying because a friend of hers had died. She says that Mr Arevalo came over to her, gave her a hug and tried to kiss her on the lips. She says that she turned away, and pushed him away.
22 Mr Arevalo, in his statement, gave evidence that he was trying to comfort Ms Ferreira, as he could see that she was upset. He says that he was not trying to kiss her, but merely to comfort her as a friend. He denies trying to kiss her.
23 On another occasion, she says that Mr Arevalo suggested to her that she “come around to his house and try out his new quilt cover”. Ms Vega, in her capacity as Mr Arevalo’s cleaner, had recently purchased a new quilt cover for Mr Arevalo. Ms Ferreira says that she took this suggestion to mean that he was inviting her to go to bed with him. Mr Arevalo denied that that conversation occurred.
24 Ms Ferreira gave evidence that Mr Arevalo tried to hug and kiss her while she was working in the kitchen. One of the occasions was on a Saturday night when she was cleaning in the kitchen. She was washing the dishes and Mr Arevalo came over to her and kissed her. She pushed him away, and said, “As soon as I’ve finished this I’m going to go home, don’t lock the door because I don’t want to go out through the Club”. He replied, “Every other Saturday you have a drink with your friends, What will they think if you don’t go and have a drink with them tonight?”
25 After this event, Ms Ferreira says that she went upstairs to the Function Room, found her friend Ms Vega, and said that she wanted to talk to her. She told Ms Vega what had happened with Mr Arevalo, and Sue said, “Why don’t you go home?” Ms Ferreira then says that she told Ms Vega of the other occasions upon which Mr Arevalo had tried to hug or kiss her. Ms Vega was disbelieving at first, and said, “What? Jose? I can’t believe it. You must be joking” or “It’s hard to believe because I have worked with him so long and he has never tried anything on me”. When Ms Ferreira cried and told her that it was not a joke, Ms Vega said, “You need to tell Kenny Vaughan”.
26 Ms Ferreira said to her, “I want to sort it out myself because I don’t want my husband to know, and I don’t want anyone at the Club to know”. Ms Ferreira gave evidence that she did not want her husband to know because she was worried that he might take up the matter with Jose in a manner likely to cause her problems in her employment.
27 A few days after this incident, Ms Ferreira says she was sitting at the bar with some other workers, including Ms Vega and Mr Benevente. Mr Arevalo asked her to come into the kitchen to get some meat to take home. Ms Ferreira did not want to do so, but he insisted, so she relented. He then tried to “kiss her goodnight”, but she pushed him off and said to Ms Vega, “Let’s go”. She later told Ms Vega of what had happened. Ms Vega again encouraged her to see Mr Vaughan, the manager. She said, “I’ll talk to Jose myself, but before I do that I should talk to Kenny Vaughan”.
28 The next day, Ms Ferreira went into work at 8 am to clean up after a function the night before. She saw that only Mr Arevalo’s car was in the carpark. She telephoned Ms Vega and said, “I’m worried to go in to start cleaning if Jose is the only one in the Club”. Ms Vega said, “I will have a shower and come down”. Ms Vega says that the time of the phone call was about 8.15 am, and she told her, “Go in, and if he tries anything, scream and push the green button to get out the sliding doors”. When Ms Ferreira went into the Club, Mr Arevalo was there with Mr Manolo Caballero. She started cleaning. When Mr Caballero left, Jose said to her, “We have the Club to ourselves, darling”. Ms Ferreira said, “Don’t even think about it” and she started screaming. He said, “Who’s going to listen to you, we are alone”. Ms Ferreira says that Mr Arevalo then grabbed her upper arms, pushed her against the wall and pulled up her top. He tried to grab her breasts. Ms Ferreira struggled and her bra ripped. She ran into the toilet, and screamed at Mr Arevalo, “Leave me alone, I’m going to tell the manager when comes in. You are a pig”.
29 She then rang Ms Vega again, who said she would come down. Ms Vega puts the time of this call at about 9.30 a.m. When Ms Vega arrived it was between 10 and 11 am, and Ms Ferreira was very upset. Ms Vega saw the broken clasp on Ms Ferreira’s bra. Ms Vega went and spoke to Mr Arevalo, and told him that Ms Ferreira would not be working that night. Mr Arevalo asked Ms Vega to cover for Ms Ferreira, but she refused, as she had no child care. Another waitress was telephoned and agreed to cover the shift.
30 Mr Ferreira, Ms Ferreira’s husband, gave evidence that he saw Ms Ferreira’s bra with the broken clasp a few weeks after she bought it in August or September 2002. It was in the glovebox of Ms Ferreira’s car. He says that he remembered her buying it, and noted the plastic clasp at the front. He asked his wife about it, and she said, “It was no good”. When he pressed her on it, she said, “I thought it was good, but as you can see it’s not. It just broke like that”.
31 The day after the alleged assault on her, Ms Ferreira told Ms Vega that she was unable to work that night either, due to not wishing to work with Mr Arevalo. Ms Vega agreed to do Ms Ferreira’s evening shift for her. Ms Ferreira agreed to look after Ms Vega’s daughters, despite an agreement that Ms Vega and her (then estranged) husband had that only Ms Vega or Mr Vega’s mother were to look after the two girls.
32 Ms Vega went to work in Ms Ferreira’s place that evening. At Ms Ferreira’s request, Ms Vega put the shift down to Ms Ferreira so that Mr Ferreira would not find out that Ms Ferreira had not worked the shift. While Ms Ferreira was at Ms Vega’s home, Mr Vega arrived. He was angry with his wife for breaking their agreement. He stayed with her to wait for Ms Vega to come home.
33 At the Club, Mr Arevalo asked Ms Vega why Ms Ferreira was not working. Ms Vega said, “She is too upset to come in. She’s been upset with you lately and won’t tell me why. I don’t know what’s going on but I’m sick of it because Nivalda is very upset”. Ms Vega said that she said this so that Mr Arevalo would tell her what had been happening. Mr Arevalo said, “I want Nivalda to come to the Club so that we can talk”. He then telephoned Ms Ferreira at the Vega house. Mr Vega answered the phone, and Mr Arevalo asked for Ms Ferreira. Mr Vega said, “There has been a misunderstanding between me and Nivalda, and I want to talk to her to sort it out”. Mr Vega asked if Ms Vega could be let off early from work, because he needed to talk to her. He then gave Ms Ferreira the phone. Mr Arevalo said to Ms Ferreira, “I want to talk to you, I want you to come down”. Ms Ferreira refused.
34 Later, when Ms Vega arrived home, Ms Ferreira told Mr Vega what had happened between her and Mr Arevalo. Mr Vega said to her, “You must tell Mr Vaughan and the Committee”.
35 Ms Vega told Ms Ferreira that Mr Arevalo wished to speak to her. Ms Ferreira said she was not prepared to attend on her own, and Ms Vega agreed to come with her. The next morning, the three of them had a meeting in a small room behind the coolroom at the Club.
36 Ms Vega and Ms Ferreira each say that at that meeting, Mr Arevalo said, when confronted with his conduct, “She (meaning Ms Ferreira) put it out there, and I am a man, so I took it”. Ms Vega said, “She said no to you and when she said no she meant no”. Mr Arevalo said, “This will stop right here, right now. This must stay between us three and if this gets out to Kenny Vaughan, I will deny everything”.
37 The meeting then broke up. After the meeting, Mr Arevalo did not try to touch or kiss Ms Ferreira.
38 Ms Ferreira did not tell her husband of these events until some months after they happened, but he noticed a change in her mood. She was depressed and angry. She was nervous and crying as she told him of Mr Arevalo’s conduct towards her.
39 Ms Vega gave evidence that after the meeting, Mr Arevalo’s attitude to her changed. She said that previously he had never criticised her work, but began to do so, and in front of other staff of the Club. He complained that she was not able to wash dishes properly, or to price parties, and that some people did not like her cooking. She says that prior to this, he had been very friendly to her and they often had drinks after work together.
40 Both Ms Vega and Ms Ferreira gave evidence that at some time before this meeting, Ms Vega and Ms Ferreira told Lou Benevente, the Club’s Assistant Manager, of Mr Arevalo’s conduct. The conversation took place informally, at Port Kembla Beach after the three of them had finished work. Ms Vega said to Mr Benevente, “Jose has the hots for Nivalda. He has tried to grab her and kiss her”. Mr Benevente laughed and did not say anything further.
41 Later, according to Ms Ferreira, Mr Benevente said to her, “What are you going to do?” She said, “I will quit”, and he told her not to.
42 After the meeting with Mr Arevalo, Mr Benevente, who knew it was going to happen, asked Ms Ferreira: “What happened? Did you quit?”
43 Mr Benevente gave evidence that the conversation alleged at the beach did take place. He says, not unreasonably given the circumstances, that he “did not believe that Nivalda or Sue were making a complaint. I thought it was gossip”.
44 After the meeting, it appears that the situation between the applicants and Mr Arevalo became, if not common knowledge, then at least the subject of discussion at the Club. Mr Vega gave evidence that he discussed the matter with Mr Tony Gonzalez, Mr Manuel Caballero and Mrs Loli Caballero. Mr Gonzales told him that “It’s my job to look after the welfare of the Spanish community and the employees of the Spanish Club. Let me deal with it my way and I’ll try to find out what I can for you. That might be the best way of dealing with it.” Mr Caballero insisted that “whatever happened, it happened outside the club. It didn’t happen inside”.
45 It appears that Mr Gonzales, who was a member of the Board of Directors of the Club, dealt with this by making a report to the Board. The Minutes of the meeting of 9 December 2002 read, relevantly:-
- “ITEM 7. A Director reported to the Board of a conversation with the Club’s electrician Tony Vega (also partner of S Vega) that Ms Vega told him that there was a problem in the restaurant between Ms N Ferreira and Jose Arevalo (Caterer). Mr Vaughan said he was not aware of any problem, and asked the Directors if any of them knew anything. Directors were not aware of any problem. Mr Vaughan was to investigate and to report back to the Board”.
46 In December 2002, on a Monday, no doubt in response to the Board’s direction, Mr Vaughan approached Ms Ferreira. So much is common ground. Ms Ferreira recalls that she was working, and Mr Vaughan approached her while she was standing near the poker machines. He asked, “Do you have any problems working with Jose”? She says she replied, “Do I have a choice?” and he replied “No”. Ms Ferreira says that she said, “He hasn’t done anything since my conversation with him and Sue. I need a job, that’s why I’m still here”.
47 Mr Vaughan says that after being told by Ms Caballero of the problem between Ms Ferreira and Mr Arevalo, he approached Mr Arevalo, who denied any problems. He said that he also approached Ms Ferreira, who alleged that “Sue is going around making problems” and that there was no problem with Mr Arevalo. He says that in a conversation with Ms Vega, in the company of Mr Cepero, she said, “If the club’s decision is not to give me a chance in the restaurant, then big things are going to happen to this place”. He says he approached Ms Ferreira with Mr Cepero once more and asked her again whether there was a problem. She said, “Ken, like I told you before, there is nothing going on. I’ve got nothing to talk to you about”. Mr Vaughan notes that Mr Arevalo was present during the conversation.
48 Mr Vaughan also discussed the issue with Ms Vega. Ms Vega’s version of the conversation is that Mr Vaughan asked her what was happening. She said, “You do not know what is happening in the restaurant”. He said, “I do know. When did this start?” She replied, “Ever since Jose and Nivalda had a falling out.” Mr Vaughan replied, “You tell me your side of what happened between Nivalda and Jose”. Ms Vega was hesitant, but then told him that Mr Arevalo had been sexually harassing Ms Ferreira in the restaurant, and that it had been going on for a while. She told him about the meeting and the fact that Mr Arevalo had said it would stop. At the end of this conversation, Mr Vaughan indicated to Ms Vega that he wanted to talk to her about having a full-time position in the Club. He said, “I wanted to give it to you before so it shouldn’t be a problem”. Ms Vega says that a couple of times after this, Mr Vaughan would ask Ms Vega how things were going, and she would say, “Yeah, whatever”. She said she did not want to rock the boat in relation to her getting a full-time position.
49 Mr Vaughan says that Ms Vega had a meeting with him in December 2002, saying that the problems with Mr Arevalo related only to their not getting enough shifts. He says that she suggested that she be given a chance to run the restaurant.
50 Ms Loli Caballero, the Club’s Honorary Secretary and the Licensee of the Club, gave evidence of a conversation with Ms Vega that Ms Vega sought her assistance in taking over the restaurant. When Ms Caballero told her that that would not happen, Ms Vega said to her, “If you don’t, something big is going to happen that is going to close the Club”.
51 There was a meeting in early January 2003, at which Mr Vaughan says he was present along with Ms Vega and Mr Arevalo. Ms Vega complained that Mr Arevalo was not treating her fairly, and was getting her to prepare salads rather than cooking. She said to him, “Jose is punishing me by taking my Sunday shift off me. My hours are down, it’s not worth my while working here”.
52 In early 2003, Ms Vega met with Mr Vaughan and Mr Arevalo. She says that she was told that the Board would not agree to her being given a permanent position. Ms Vega asked them whether they could guarantee her at least 30 hours per week. Mr Vaughan said “your hours will not be cut”. Ms Vega claims that her hours were then cut from 40 hours to 17 hours the next week. She says that in January her hours were decreased “from always working 35 hours per week, my hours dropped to 20.45 and 17.45 for the weeks ending 12/1/03 and 19/1/03 respectively. I was aware that at around this time Silvio’s hours increased”. Silvio was another cook at the restaurant.
53 The Club’s Board of Directors meeting of 13 January 2003 contain the following item:-
- “ITEM 8. Mr Vaughan informed the Board of allegations made by Ms Sue Vega (staff) re a member of the staff, in that he (Mr Vaughan) has spoken with all parties concerned and was denied by all”. (Exhibit N).
54 Ms Loli Caballero gave evidence that she took the minutes of the meeting. There was no written report, or any other written record of Mr Vaughan’s investigation into Mr Gonzalez’ report of discord in the restaurant.
55 In late 2002 and early 2003, there was some discussion at Club management level of giving the restaurant business over to Jose. Ms Vega also concerns about the new arrangement, since Mr Arevalo asked Silvio to go into partnership with him. She gave evidence that Silvio said to her, “I feel guilty about taking your hours”. She says that after the meeting with Mr Arevalo, and particularly in January 2003, her hours were cut so that it was no longer economic for her to work.
56 On 13 January 2003 Ms Vega went to Mr Vaughan and said, “I can’t live on these hours. I’d be better off on the pension”. Mr Vaughan replied, “Why don’t you do that?” She resigned on 17 January 2003.
57 Mr Vaughan denies that Ms Vega’s hours were cut. He says that any change in hours was not substantial, and was due only to seasonal variations in availability of hospitality work.
58 The Club made a decision on 3 February 2003 to take over the catering of the restaurant in partnership with Silvio Movano, to take effect on 10 February 2003 (exhibit O).
59 On 10 February 2003, the business was handed over to Mr Arevalo and Silvio. As a result, Ms Ferreira says she asked Mr Vaughan to assign her shifts behind the Bar rather than in the restaurant. When he asked why, she said, “The difference is that before I was working for the Club and now the business is his I’ll be working for Jose”. Mr Vaughan’s account of this meeting differs; he says that Ms Ferreira said to him, “I’ve got no problems with the new arrangements”. When she asked for more shifts in the Bar, he enquired why, and was told that “My husband has found out about Jose”. Mr Vaughan asked her, “If anything has happened between you two I presume it was not at the Club”. She agreed, “No, it was not at the Club”.
60 There was some evidence given by witnesses for the respondent that Ms Ferreira and Mr Arevalo had a warm relationship for the entirety of her time at the Club. A number of directors gave evidence that they saw Ms Ferreira and Mr Arevalo kissing, cuddling and having their arms around each other. This was denied by Ms Ferreira and Ms Vega. Ms Ferreira was cross-examined at length as to her presence at the Club after working hours, and the jackpots that she won, and it was suggested to her that socialising in the Club after her shifts was incompatible with her account of sexual assault by Mr Arevalo.
61 Ms Ferreira gave evidence that she started having panic attacks at work and was feeling very stressed. She nearly fainted one day. She went to her doctor, who gave her a certificate for a few days, and after that, she did not return to work. She lodged a worker’s compensation claim and went on stress leave. She saw Dr Grainger, a psychiatrist, for counselling. She was prescribed anti-depressants and takes Valium occasionally.
62 Dr Grainger diagnosed Ms Ferreira as suffering from post traumatic stress disorder with mild depression. She details the level of anxiety and panic suffered by Ms Ferreira, and the treatment of cognitive behavioural therapy provided to her. A year later, in March 2004, Dr Grainger considered that while there were some lingering symptoms, “almost all of the symptoms appear to have resolved”.
63 Ms Ferreira found a few casual waitressing jobs but was essentially unemployed until November 2003, when she found work at the Portuguese Club. She works on average 10-12 hours per week.
64 Ms Vega gave evidence that she was depressed and unable to find other work. She had an anxiety attack, and went to see her GP, Dr Bock. She first saw Dr Bock in relation to this incident on about 15 September 2003. She was very emotional and upset. Dr Bock said that she “resigned from the Spanish Club because of emotional factors and economic factors”, in particular that her hours had been “shortened .. .from approximately 40 hours per week to 17 hours per week”. Dr Bock thought that Ms Vega was suffering from Acute Reactive Anxiety with Depression”. She was placed on antidepressants and as far as the evidence shows, is still taking them.
65 We have not dealt with Mr Arevalo’s account of the sexual matters in the narrative above since it differs so markedly from the other evidence that it is difficult to weave into the rest of the evidence. We deal with it here. Mr Arevalo says that in June 2002 (in his statement he says “June 2003”, but Ms Ferreira was not working there then), he had finished working and Ms Ferreira and he were having coffee in the Bar. Ms Ferreira asked him what rosters she was on for the next week. They went to have a look.
66 The rosters were on the wall in the preparation room, and Mr Arevalo walked in first. He says that Ms Ferreira was standing quite close behind him. He turned, and “Nivalda moved closer to me and we kissed. We kissed a couple of times. She was smiling while we were kissing. We looked at the roster and then I switched off the light and we walked out of the preparation room”.
67 While Mr Arevalo does not specifically deal with any other incidents, he says that “Nivalda at the end of our shift occasionally sat on my lap, hugged and kissed me”. He says she kissed him “only a day or two before Nivalda left … on the cheek”. He says that “I have never sexually harassed Nivalda. Whenever we had physical contact it was always with our agreement”.
68 In Mr Arevalo’s reply to the complaints to the ADB, he denied ever having any physical contact with Ms Ferreira.
69 He denies the other incidents which are raised in support of Ms Ferreira’s allegations. He denies bullying Ms Vega, or criticising her work.
Consideration of the Evidence and Matters of Credit
70 The hearing of this matter was long and, to an extent which will be discussed below, difficult. Each of the applicants were cross-examined for a significant period of time and there were many diversions into evidentiary arguments. Each of the main protagonists, with a few exceptions of directors of the Club, were cross-examined. Before detailing the facts as found by the Tribunal, some comments on the main witnesses are in order.
71 Ms Ferreira impressed as a witness of truth. She was obviously nervous and anxious, but that is understandable. She gave her answers in a truthful manner and, while she was unable to recall dates, she had a good recollection for the salient facts. She was clear and consistent, and impressive.
72 Ms Vega also impressed as a truthful person. However, she was rather more inclined to exaggerate for effect than Ms Ferreira, and while the Tribunal generally accepts her evidence, it does so more quickly if there is supporting evidence of her claims.
73 It was more difficult to assess Mr Arevalo’s demeanour, as he gave most of his evidence through an interpreter and some in English, which is not his first language. It is fair to say that he was not forthcoming during most of his cross-examination. His claims of a consensual relationship with Ms Ferreira are not very believable when the entirety of the evidence is taken into account. He denied kissing Ms Ferreira to the President of the Anti-Discrimination Board (Ex A, p 23) when a consensual relationship would have assisted his case. He gave no explanation for the change of position from his evidence to the ADB. The Tribunal does not accept that there was any such relationship. The evidence of Mr Benevente supports this. A number of the directors did give evidence of a warm and friendly relationship between Mr Arevalo and Ms Ferreira, but it is undisputed that at the beginning of Ms Ferreira’s employment, this was the case. The assertion of a consensual course of kissing is unbelievable, and Mr Arevalo’s entire evidence must be assessed in the light of that assertion. Accordingly, the Tribunal prefers the evidence of Ms Ferreira and Ms Vega to Mr Arevalo.
Ms Ferreira’s Case
74 In relation to the allegation that Mr Arevalo called Ms Ferreira “my little one”, while the fact of calling Ms Ferreira “my little one” was admitted by Mr Arevalo, it does not appear that Ms Ferreira objected to it at the time. It was submitted by counsel for the applicants that the incident should be looked at cumulatively. Given that Ms Ferreira was not offended by the name, except, it seems, in retrospect, it is not appropriate to include consideration of the allegation in any consideration of the other incidents.
75 In relation to the allegation that Mr Arevalo kissed Ms Ferreira when she was upset about her friend dying, it is difficult for the Tribunal to assess whether or not such an incident occurred. No witnesses gave evidence that they saw it happen, although Ms Ferreira says that she was speaking to Ms Vega at the time. While she does refer to it in her complaint to the ADB (statement dated 7 March 2003), in Dr Grainger’s report (Ex C) the incident is described as being one which shows that Mr Arevalo was formerly sympathetic to Ms Ferreira. It was not described as being part of the matrix of sexual approaches to her, in fact, quite the contrary. Ms Vega was allegedly present during this incident, but Ms Vega does not mention it in her statement or in her complaint to the ADB. In fact, the incident is inconsistent with Ms Vega being later unaware, and initially disbelieving, of Ms Ferreira’s allegations about Mr Arevalo. It is the Tribunal’s view that it is more likely than not that the incident did not happen the way that Ms Ferreira alleges. It is more likely that Mr Arevalo did hug Ms Ferreira, and that her perception that he tried to kiss her a later overlay to her evidence, in the light of later events.
76 The next alleged incident is Mr Arevalo’s “frequently trying to hug her and kiss her on the lips” (Counsel’s submissions). The evidence, while it does show that Mr Arevalo did try to hug and kiss her, does not maintain a finding of “frequently”. The evidence given by Ms Ferreira is that the attempts to hug and kiss happened, at most, two or three times. Having said that, the Tribunal is comfortably satisfied, from Ms Ferreira’s evidence, that she was subjected to such attempts on two or three occasions.
77 The next incident is the suggestion that Ms Ferreira “try out his new quilt cover”. This is an incident which depends on Ms Ferreira’s word against Mr Arevalo’s; in a circumstance where there are no factors tending against Ms Ferreira’s version, it is easy to accept it given the findings the Tribunal has made as to Mr Arevalo’s credit. The Tribunal is comfortably satisfied that Mr Arevalo said those words.
78 The final incident is the sexual assault of early September 2002. The Tribunal has no hesitation in accepting Ms Ferreira’s version over that of Mr Arevalo. Ms Ferreira’s manner of giving evidence, her clear and consistent version of events, and Mr Arevalo’s unconvincing denials (in the light, particularly, of his unbelievable statement of a consensual physical relationship) lead the Tribunal to this finding. The assault on Ms Ferreira was unwanted, offensive, and humiliating to Ms Ferreira.
79 It is the Tribunal’s view that the conduct of Mr Arevalo as found above unquestionably constitutes sexual harassment within the meaning of the Act. The fact that Ms Ferreira did not complain of it until later is explicable in the light of her relationship with her husband, her personality and the fact that Mr Arevalo was in a de facto position of power over her. While he was a volunteer, he was in charge of the kitchen, and as later events showed, was on good terms with the Board and with Mr Vaughan. Ms Ferreira was not willing to undergo what she saw as the humiliation of the story becoming public as long as she felt that she, with Ms Vega’s help, could sort the situation out on her own.
80 The Tribunal finds that Mr Arevalo sexually harassed Ms Ferreira within the meaning of the Act.
81 The liability of the first respondent, the Club, must now be examined. It was conceded at the beginning of the hearing by the agent for the respondents that the first respondent was vicariously liable for the second respondent, and that no defence under s 53(3) of the Act was raised. This has the effect of deeming that the conduct of the second respondent is also the conduct of the first respondent.
82 However, it was argued that the first respondent had a separate liability under the sex discrimination provisions. It was submitted by counsel for the applicants that, for the purpose of s 24(1)(a) of the Act, the less favourable treatment to which Ms Ferreira was subjected arose because Mr Arevalo did not hug or attempt to kiss male co-workers. There is no evidence that he did so.
83 It was also submitted that the Club failed in its responsibility to ensure that Ms Ferreira had a safe working environment. The applicant relied upon the statement of Nathan J in R .v Equal Opportunity Board; ex parte Burns [1985] VR 317 to establish that such a failure resulted in a detriment within the meaning of s 24(2)(c) the Act. His Honour said that:-
- “A benefit of employment is the entitlement to quiet employment, that is, the freedom from physical intrusion, the freedom from being harassed, the freedom from being physically molested or approached in an unwelcome manner. If molestation, physical and sexual affronts are permitted by an employer, it is denying a benefit and permitting detriment to those employees who suffer such unwelcome intrusions vis a vis those who do not”.
84 The Tribunal finds that in failing to prevent the harassment of Ms Ferreira, the first respondent has discriminated against Ms Ferreira on the ground of sex. While Mr Benevente did not receive the information about Mr Arevalo’s conduct towards Ms Ferreira as a formal complaint, as a supervisor, he should have at least put his superior – Mr Vaughan – on notice. As there were no policies or grievance processes available to Ms Ferreira, and she had a difficulty in speaking to Mr Vaughan, it is understandable that no formal complaint was made.
85 Counsel for the applicants further submitted that the failure of the Club to respond to Ms Ferreira’s situation in an appropriate manner merely compounded the discrimination. Mr Vaughan investigated the matters raised by Mr Gonzalez at the board meeting in an inefficient and ineffective way. He spoke to Ms Ferreira, on one occasion, in the presence of Mr Arevalo, and on another, in the presence of his wife. He did not speak to Mr or Mrs Vega. He did not compile a written record of his investigation, nor did he apparently even take notes.
86 The Tribunal is comfortably satisfied that the conduct of the Club amounts to discrimination on the grounds of sex against Ms Ferreira.
Ms Vega’s Case
87 Ms Vega alleges that she was victimised by both of the respondents in relation to her assistance to Ms Ferreira against Mr Arevalo. Her assistance commenced when Ms Ferreira told Ms Vega that Mr Arevalo had tried to kiss her. She spoke to Mr Benevente about it. She attended the meeting with Ms Ferreira at which the two women demanded that the unwanted attention cease.
88 Ms Vega says that after that time, Mr Arevalo began to criticise her work. There was some tension in the workplace, a contention with which Mr Arevalo agrees. Ms Vega went to Mr Vaughan with her complaint that there was a problem in the kitchen. He mentioned to her that the Board might put her on full-time. She says that the request was refused (a fact that is uncontentious) and then says that her hours were decreased. The question of the decrease of the hours was contested by the respondents.
89 Counsel for the applicants submitted that, in relation to victimisation, the applicant has to prove the following four matters:-
- a) The respondents must have caused the applicant to undergo or experience something;
b) The applicant must have suffered some consequential detriment;
c) The detriment must have occurred on one of the grounds set out in sub-pars 50(1)(a) to (d); and
d) It must appear that the applicant did one of the things referred to in sub-pars 50(1)(a) to (d).
90 The applicant must show that the assistance provided to Ms Ferreira had a “real causative effect” on the detriment suffered by her; that is, that the criticism of her work and the decrease in her hours would not have happened but for the assistance given to Ms Ferreira.
91 The applicant says that the relevant ground for matters (c) and (d) above is her assistance with Ms Ferreira’s complaint.
92 In relation to the criticism, the applicant must show that she was criticised by Mr Arevalo as a result of her assisting Ms Ferreira with the complaint. While the Tribunal accepts that the relationship between Mr Arevalo and Ms Vega deteriorated after the meeting with Ms Ferreira, we are not satisfied that it happened in the way Mrs Vega attested. The Club’s directors were generally not aware of the criticism, and while a number of them had discussions with Ms Vega about the future of the restaurant, it is clear that their reservations were not communicated to them by Mr Arevalo. It is understandable that after such a meeting, tensions may come closer to the surface, and particularly in a small workplace where relationships had previously been friendly. There is no real evidence, sufficient to satisfy this Tribunal to the requisite standard, that she was criticised or downgraded in her work in the way she alleges. For example, she says that she was made to make salads rather than use the deep fryer; it is clear that salads are part of a cook’s work and that someone has to make them. There is nothing to link the direction to make salads to the assistance given to Ms Ferreira.
93 Further, even if the level of criticism is accepted, it is not the case that the detriments alleged by Ms Vega arising out of the criticism are sufficient to justify a finding in her favour. She says that she was upset and felt insecure, and that it affected her work. Mere upset and insecurity, even if all the other factors were proved, is not sufficient to ground a finding in her favour which results in damages.
94 As for the question of the cutting of the hours, the Tribunal was taken at length through Ms Vega’s timesheets, which are part of Exhibit E, her complaint to the ADB and associated documents. The timesheets range from May 2002 until January 2003, and were generally accepted (with some reservations) by Ms Vega as being correct.
95 The timesheets show the hours worked, the rates at which the work was done, and various other allowances such as laundry and clothing, and holiday allowances. Taking only the hours worked, the picture is rather different from that put by Ms Vega.
- Period – week ending Hours worked Comment
27 May 02 20
10 June 02 22.75
16 June 02 34.83
23 June 02 17.5
7 July 02 15.5
14 July 02 29.5
21 July 02 28.5
28 July 02 21.5
4 August 02 23.5
12 August 02 18
19 August 02 23.25
26 August 02 23.75
2 September 02 34
8 September 02 36.5
15 September 02 57.5
22 September 02 30.75
29 September 02 35.5
6 October 2002 33.5
13 October 2002 38.5
20 October 2002 35
27 October 2002 49 Mr Arevalo was on holidays for this and the next two weeks
3 November 2002 48.25 Mr Arevalo on holidays
10 November 2002 54.5 Mr Arevalo on holidays
17 November 2002 18.5 Ms Vega was on holidays at around this time
24 November 2002 42
1 December 2002 33.5
8 December 2002 44.5
15 December 2002 36.5
22 December 2002 31.75 There is another timesheet for late December which shows 36.5 hours and the notation, in handwriting, of “over paid”.
29 December 2002 22.25
5 January 2003 39.5
12 January 2003 20.75
19 January 2003 17.75
96 Out of the weeks worked by Ms Vega, she worked fewer than 20 hours in five weeks (one of which she was on holidays), more than 20 and fewer than 30 hours in ten weeks, more than 30 and fewer than 40 hours in 12 weeks, and 40 hours or more in only six weeks. In other words, just over half of her working weeks resulted in a more than 30 hours work.
97 Further, and notably, she worked 39.5 hours in early January 2003, at a time when her evidence was that her hours were being “cut” and given to Silvio Moyano. In the week ending 12 January 2003, Mr Moyano’s hours were 14.5 to her 20.75; in the week ending 19 January 2003, Mr Moyano’s hours were 22 to her 17.75 (see Exhibit L).
98 Mr Vaughan and, to a lesser extent, the other directors, pointed to the seasonal nature of hospitality work, and the quiet period in early January which traditionally follows the busy Christmas period in December. Even if the Tribunal were satisfied that Ms Vega’s hours had been cut, which it is apparent they were not, the explanation is such that the requirement of causation would not be made out.
99 Accordingly, for the reasons above, Ms Vega’s claim fails.
Damages for Ms Ferreira
100 It was submitted for Ms Ferreira that an amount of damages should be awarded which would compensate her for her period of unemployment as well as for injured feelings and pain and suffering. The Tribunal has jurisdictional limit of $40,000. She was unable to work for some period of time and is now working fewer hours than she previously did.
101 As for general damages, the applicant submits that she has suffered emotional damage. There is medical evidence from Dr Grainger (exhibit C) in support of this submission.
102 While there is some evidence of financial loss on the part of Ms Ferreira, there is insufficient to enable the Tribunal to make an exact award. She claims $22,709.10 in total. However, while there is a schedule of her economic loss, there is no evidence as to the facts which go behind that schedule. There is nothing to tell the Tribunal about her wages, if any, for the periods of time for which she undertook work experience. There is only a little on the issue of mitigation.
103 Doing the best we can, the Tribunal awards $12,500 in economic damages for loss of income to Ms Ferreira.
104 As for general damages, it is clear that Ms Ferreira has been through a testing time. The incident which was the culmination of the harassment was a difficult experience, which affected her intensely at the time and for a period afterwards, although it is noted that Dr Grainger was of the view that the symptoms had essentially resolved by March 2004. The Tribunal awards the sum of $5,000 in general damages.
Costs
105 The Tribunal is generally a no-costs jurisdiction. However, the Administrative Decisions Tribunal Act 1997 allows costs in special circumstances.
106 While neither the applicant nor the respondents have been given an opportunity to argue costs, the preliminary view of the Tribunal is that the applicant Ms Ferreira should be given an order as to half of her costs of the hearing, on the basis that, while the Tribunal is generally a no-costs jurisdiction, the hearing was conducted by the respondents in a way which led to it being unnecessarily prolonged. The hearing took six days. The applicant had difficulties in obtaining documents which were sought on the Summons. The respondents chose to run a number of defences to the claim which were unlikely to be successful, treating it more as an industrial matter than an anti-discrimination one. It is considered that the proper order to be made is to allow Ms Ferreira one-half of her costs.
107 Leave granted to either party in the Ferreira proceedings to relist the matter to argue the matter of costs within 14 days of publishing the reasons for decision in the matter; if matter is not relisted, then respondents to pay one-half of the applicant’s costs as agreed or assessed. There are no orders as to Ms Vega’s costs.
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