Font v Paspaley Pearls & Ors
[2002] FMCA 142
•23 July 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| FONT v PASPALEY PEARLS & ORS | [2002] FMCA 142 |
| HUMAN RIGHTS – Sexual discrimination – sexual harassment – victimisation – termination of employment following complaint – no causal connection found – vicarious liability found – no appropriate systems in place – general damages – conduct of proceedings – aggravated damages – distinction between aggravated damages and exemplary damages – exemplary damages awarded. |
Sex Discrimination Act 1984 (Cth) ss.8, 14(2), 28A, 94
Cook v Plauen Holdings Pty Limited [2001] FMCA 91
Daniels v Hunter Water Board (1994) EOC 92-626
O’Callaghan v Loder [1983] 3 NSWLR 89
Elliot v Nanda (2001) 111 FCR 240
Lesley v Graham [2002] FCA 32
R v Equal Opportunity Board; ex-parte Burns [1985] VR 317
Aldridge v Booth (1988) 80 ALR 1
Bailey v Australian National University (1995) EOC 92-744
Whittle v Paulette (1994) EOC 92-621
McIntyre v Tully (1999) 90 IR 9
Coyne v Citizen Finance Limited (1991) 172 CLR 211
Triggell v Pheeney (1951) 82 CLR 497
Lamb v Cotogno (1987) 74 ALR 188
Hehir v Smith [2002] QSC 92
Hunter Area Health Service v Marchlewski [2000] NSWCA 294
MyerStores Limited v Soo [1991] 2 VR 597
Gilroy v Angelov (2000) 181 ALR 57
| Applicant: | PAULA FONT |
| First Respondent: Second Respondent: Third Respondent: | PASPALEY PEARLS PTY LIMITED BRIAN PURKIS SIMONE TROPIANO |
| File No: | SZ 139 of 2002 |
| Delivered on: | 23 July 2002 |
| Delivered at: | Sydney |
| Hearing Dates: | 4, 5, 6 & 12 June 2002 1 & 2 July 2002 (last submissions received 16 July 2002) |
| Judgment of: | Raphael FM |
REPRESENTATION
| Counsel for the Applicant: | Ms K Eastman |
| Solicitors for the Applicant: | Abbott Tout |
| Counsel for the Respondents: | Ms C Ronalds |
| Solicitors for the Respondents: | Cridlands Lawyers |
ORDERS
The Court:
Dismisses the proceedings against the Third Respondent with costs.
Declares that the First and Second Respondents have breached ss.14(2) and 28A of Sex Discrimination Act with regard to the applicant.
Orders that the First and Second Respondents pay the applicant damages in the sum of $10,000.00.
Orders that the First and Second Respondents pay the applicant exemplary damages in the sum of $7,500.00.
Orders that the First and Second Respondents pay interest on the damages awarded under (3) above from 1 February 2001 to the date of judgment at the rates prescribed by the New South Wales Registry of the Federal Court.
Gives leave for the parties to approach my associate to fix a date to be heard on costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ 139 of 2002
| PAULA FONT |
Applicant
And
| PASPALEY PEARLS PTY LIMITED |
First Respondent
BRIAN PURKIS
Second Respondent
SIMONE TROPIANO
Third Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, Ms PAULA FONT (then known as Ms Paloma Paulafont) was employed by the first respondent as a sales person in their King Street Sydney showroom between September 2000 and January 2001. She claims that during the course of her employment she was a victim of sexual harassment, sex discrimination and victimisation, for which the first respondent was vicariously liable, from the second and third respondents. The second respondent is the first respondent’s retail manager for Australia whose office was at the showroom in Sydney and the third respondent was the manager of the Sydney showroom.
The allegations made by the applicant involve unwelcome remarks as well as certain physical actions by the second respondent. The main thrust of the claim for victimisation relates to the failure of the first respondent to pay the applicant a Christmas bonus which she alleged was paid to other members of staff. The applicant also alleges that she was forced to terminate her employment with the first respondent as a result of the actions of the second and third respondents.
The respondents denied the allegations. The first respondent accepted vicarious liability for the actions of the second and third respondents but argued that the incidents complained of did not take place. The respondents submitted that the applicant was not discriminated against in relation to the bonuses because any bonus which was paid was linked to the completion by the applicant of a sales course known as the Friedman course which the applicant had not completed. They argued that the applicant had been properly reprimanded for her failure to complete the course and had been given ample opportunity to do so. The first respondent submitted that the applicant had left its employment of her own volition and after she came to the realisation she would not be able to complete the Friedman course.
The case was heard over several days. A view of the premises was held. Evidence was given by way of affidavits supplemented by oral testimony and subject to cross examination. Counsel for the parties provided me with written submissions at the conclusion of the proceedings.
The evidence
The applicant
The applicant’s evidence in chief was contained in an affidavit dated 25 February 2002 but she also sought to include as part of her evidence the statement made in her application to HREOC.
The applicant is an experienced luxury goods sales person. At the time she sought employment with Paspaley Pearls she was employed by Louis Vuitton in their Sydney showroom. She had responded to a newspaper advertisement, initially by way of a telephone conversation with Ms Simone Tropiano. In her affidavit she stated that she had a further interview with Ms Tropiano and Mr Purkis, the second respondent but in her evidence she said that she had two interviews, one with Ms Tropiano and then another one with Mr Purkis.
The applicant was employed by Paspaley on or about 4 September 2000 at a salary of $29,000.00 per annum plus superannuation with a three month probationary period. She was expected to complete a sales course known as the Friedman. This course is an American sales aid. It consists of a series of eight videotapes, a workbook and a checksheet. The sales assistant is expected to watch the video tape, read the workbook and then do the work set out in the checksheet. The work which is required to be done in the checksheet includes providing responses that emanate from a sales person’s actual experience in their current job on the sales floor. The course is meant to be progressively marked by the sales person’s manager. The applicant accepted that Paspaley Pearls considered it a very important sales training tool which it required all of its sales personnel to complete. The applicant agreed that she was required to complete the Friedman course within three months.
The applicant deposed to an understanding that when she had completed the Friedman course she would be entitled to an additional payment of $50.00 per week. Under cross-examination she accepted that she may have misunderstood. The company policy was that upon completion of a Friedman course the sales person was qualified for a bonus paid upon sales on a monthly basis, the maximum value of which may well have been $50.00 per week.
The applicant deposed to the fact that she had completed a Friedman course previously but under cross-examination admitted that the course which she completed was not the same as the one which she was asked to do by the first respondent.
Those employed at the store in King Street were as follows. Mr Purkis, who was the general manager of retail and had an office in the store. The store manager was Ms Tropiano. The most senior sales assistant was Ms Maureen Eva who had been with the company for some time. Ms Jan Buckley was a sales assistant who had been recruited a few weeks before the applicant.
The applicant deposed that she began to experience difficulties with the second respondent during the second week of her employment. She alleges that Mr Purkis said to her on a number of occasions in relation to moths which were attracted to bright lights in the store:
“That moth came out from underneath your skirt.”
She claims he also made comments about her appearance such as:
“You look lovely today.”
The applicant deposes to occasions when the second respondent would sit down beside her whilst at a small desk where she performed clerical duties. There was physical contact between them that she did not like and from which she moved away. The applicant deposes to an incident which occurred on 25 September 2000 when Mr Purkis asked the applicant to give him a massage. She claims it made her feel very uncomfortable and that when she did not reply to the proposal Mr Purkis laughed at her awkwardness and walked away.
The applicant deposes that on 28 September 2000 whilst she was serving a customer in the store, Mr Purkis approached her from behind and rubbed his hand over her lower stomach and said words to the following effect:
“Paloma’s getting fat, she looks pregnant.”
This made her feel humiliated and offended by his physical contact.
The applicant deposes to two incidents in October 2000. In the first she was standing behind the downstairs counter in the store when the second respondent approached her from behind and pushed his knee into the back of her legs causing her to stumble. On another occasion the second respondent approached her and grabbed her around the waist which humiliated and offended her.
The applicant claims that Mr Purkis made uncalled for remarks when her mobile telephone rang such as:
“Is that your date?”
She also alleges that on or about 17 October 2000 Mr Purkis telephoned her at the store from a promotional function and said words to the effect:
“I need someone to model the pearl bikini. Can you do it?”
She responded to the effect:
“No, I don’t do that type of work.”
Mr Purkis said:
“I thought I’d just try in case you said yes.”
The applicant deposed to an occasion on 25 October 2000 when she was slapped on the backside by Mr Purkis and a number of occasions when he leaned into the side of her body. She claims Mr Purkis made an unwanted remark suggesting that she should spend the night with a Mr Carrera who was coming to Sydney to promote his jewellery.
The applicant alleges that at approximately 5.00pm on or about
2 November 2000 she was upstairs in the office photocopying a document. The telephone rang and she walked across the room to answer the telephone. She leaned forward in order to write down the telephone message. She felt a hard jab between her legs in her vagina. She turned around and saw the second respondent standing behind her holding a Carrera walking stick in his hand. She says he was laughing. Under cross-examination the applicant said that the walking stick in question was a coral walking stick valued at over $60,000. There was very considerable cross-examination about this incident. The respondent maintaining that it did not happen, that Mr Purkis merely brushed past the applicant carrying two sticks and apologised for so doing. The applicant was firm in her recollection that the incident occurred as she described it and that it was not impossible, as suggested by the respondent for the incident to have occurred because of the size of the room.
The applicant stated that she was shocked and upset by this incident although she remained in the store. She says she was in tears. She says that from this date on she had difficulty sleeping and felt sick and apprehensive returning to work. She felt exceedingly uncomfortable and nervous whenever the second respondent approached her or whenever she was required to work near the second respondent.
The applicant says that the second respondent told her in November that he was pleased with her work and was considering her for promotion. This was in relation to a proposed move of the showroom to Martin Place. She accepted under cross-examination that she had not been offered the prospect of a managership but believed she would be given more responsibility having her own stock and her own safe.
In December 2000, whilst Mr Purkis was in Darwin attending to business, she complained about Mr Purkis’ actions to Ms Buckley and Ms Eva. They offered to assist by writing a letter for her or speaking to Ms Tropiano. The applicant told them she wished to deal with it herself.
The applicant had a discussion with the second respondent on 17 December 2000 in which she says he said to her:
“Some staff have been spreading rumours about me, things are going to get tough and you should think about whether you want to work at Paspaley.”
In her affidavit the applicant deposed to an incident which occurred on 23 December 2000 in which every other employee in the Sydney showroom received a bonus except her. She said she was told by Mr Purkis that this was because she had not finished the Friedman course. The applicant deposed to several conversations with Mr Purkis about this bonus during that day and at the end of this time she said she felt unwell and upset. She believed that Mr Purkis was taking this attitude towards her because the other staff members had told him about her complaints and as a result he decided to withhold her bonus. Under cross-examination the applicant accepted that this interview with Mr Purkis took place on or about 18 December and that she had wrongly understood the bonus to be a Christmas bonus. She admitted that she had been previously told that if she didn’t complete the course she wouldn’t get the bonus. She thought that was unfair because Ms Buckley hadn’t completed the course, but in fact she had.
The applicant went to see her Doctor, Dr Hardy, on 22 December and he prescribed Valium for her. His report to her solicitors is annexed to her affidavit as Annexure B.
On 2 January 2001 there was a meeting with the applicant, Ms Tropiano and Mr Purkis. The applicant was told at that meeting that she had to complete the Friedman course and that her failure to do so previously was a breach of company policy. She was required to hand in the completed workbook by 16 January 2001. In cross-examination she agreed that she had been given an opportunity by Ms Tropiano to put to her any complaints that she had about her treatment at Paspaley Pearls but she did not make any mention of the allegations against Mr Purkis. The applicant was given a first written warning which she declined to sign. This document is Annexure C to her affidavit.
At this stage of her affidavit the applicant says:
“Until that time I had not been advised that I was required to complete the Friedman course by any set time. The Friedman course I was required to complete was extensive and involved a lot of work.”
Under cross-examination the applicant accepted that she knew that the Friedman course was a very important sales tool within the company and that she had been told that it was to be completed within three months of her commencement.
The applicant handed in the completed Friedman checksheet on 16 January 2001. On the next day she had a further interview with Ms Tropiano and Mr Purkis. At this meeting Ms Purkis went through the applicant’s responses in the Friedman checkbook and criticised them. She then deposes to heated words between herself and Mr Purkis. The applicant deposes to a fairly lengthy conversation between the parties in which Mr Purkis accused her of picking up men in the street and using the company phone number. The applicant countered with a remark concerning Mr Purkis jabbing a walking stick into the back of her vagina and told him that she did not like him touching her. She says that he then said words to the following effect:
“I am an affectionate person. Simone rang me and told me about this harassment complaint whilst I was in Darwin. Jan told Simone, she said you were going to try and set me up. When I told the people in Darwin about the harassment and the walking stick, they were laughing, they thought it was funny.”
This conversation upset the applicant who began to cry. She told Mr Purkis and Ms Tropiano that she was taking valium and couldn’t sleep to which Mr Purkis responded:
“I didn’t think anything of it. I am sorry if you were offended.”
There were further words between the three of them at the end of which Mr Purkis said that they all needed to go back to the sales floor and act professionally. He told the applicant that she had to redo her Friedman checksheet by 31 January 2001. A second letter was prepared and given to the applicant which she refused to sign.
The applicant deposed to the fact that she believed that she had completed the Friedman course properly. She thought that she was being treated differently by Ms Tropiano and Mr Purkis subsequent to her complaint with regard to his behaviour. The applicant deposed to the fact that after these conversations she didn’t feel she could work in the showroom any longer. She felt that she was being constantly monitored by Ms Tropiano and Mr Purkis and she did not get a pay rise to which she believed she was entitled. She asked for time off in lieu of unpaid days that she had worked during the Olympic period. That was refused and she was told to add the days to her holidays. She ceased work on or about 24 January 2001 and did not return.
The applicant was subjected to considerable cross-examination about the timing of the complaints to Ms Tropiano. The witness gave confusing evidence which has not assisted me to come to any conclusion about whether she had told Ms Tropiano about the allegations against Mr Purkis at the time the first warning letter was given. The applicant eventually admitted that she did not tell Ms Tropiano until after she had been criticised in respect of her work on the Friedman course on 17 January 2001 although Ms Tropiano knew of them from Ms Buckley and Ms Eva.
Ms Ronalds cross-examined the applicant on the way in which she had completed the checksheet (Exhibit D) which was an important part of the Friedman course. I am satisfied from the answers to the questions in the book that the applicant did not complete the work satisfactorily in that she did not use her own imagination or make her own responses but relied on things she picked up from the videos or the workbook that she was given. She failed on occasions to respond correctly to the questions or to complete some sections.
I am satisfied that the criticisms made by Ms Tropiano of the applicant’s work in relation to the Friedman course were fully justified. However, this does not answer the question of whether or not the applicant’s inability to properly complete the course within the time specified was the sole reason for the letters of warning which she received.
Much of the cross-examination on the second day of hearing was taken up with the walking cane incident. It is the respondent’s case that what occurred on this occasion was that the applicant was talking at the telephone in the centre of the room when Mr Purkis entered, carrying the two canes back to their cases which were lying near the safe and brushed past the applicant because of the restricted amount of room in the office. The applicant denied this version of events or that Mr Purkis said he was sorry and stuck to her story that Mr Purkis jabbed at her with a coral stick. She said that she did not see Mr Purkis come into the room, she did not know how he got in there. She had been photocopying and then answered the telephone. She agreed that there were a few boxes in the room but she felt that they were not in the middle of the room and she did not believe that they hampered passage to and fro.
There was considerable cross-examination about the description the applicant gave to the place in which the stick was jabbed at her. She said in evidence that it touched the back of her vagina. She admitted she had described this to the other assistant as her “behind”. She said she understood the difference but insisted in evidence that it was her vagina. I believe the cross-examination was intended to show that the applicant was confused about the incident and that her evidence could not be relied upon. She had denied that the incident was a fabrication. I did not feel that the cross-examination succeeded in this regard.
The applicant says she was bending down with her legs slightly apart. She was wearing a long skirt. The walking stick was (according to her) jabbed at her and she felt it going straight into her vagina. I am not moved by any alleged distinction between whether the stick jabbed at the applicant’s vagina or somewhere else in the genital area. If the incident occurred then it was inappropriate behaviour. The witness’ responses to the questions were not always clear but I put this down to her being distressed and somewhat confused by the questioning.
Ms Ronalds, as was appropriate, took the applicant through every allegation which she had made against Mr Purkis. The cross-examination was not always restricted just to the incidents. For example in relation to the pearl bikini, much time was taken up as to whether or not the applicant had been asked to drive to Darling Harbour with the bikini and her views as to whether this was an appropriate request. There was a similar amount of time taken up with whether or not the applicant was asked to sew some pearls back onto the bikini and whether this was an appropriate request. The applicant maintained her position in relation to these matters and in relation to the accusation that Mr Purkis had asked her to model the bikini. She considered this remark to be inappropriate and she was firm in her belief that it had not been made up and was not a fantasy.
Similarly the applicant did not resile from her allegation about Mr Purkis pushing his knees into the back of her knees whilst she was standing behind the counter. She maintained that Mr Purkis had rubbed her stomach for a few seconds. She maintained her general accusations about Mr Purkis invading her personal space.
The applicant did not accept that Mr Purkis had not made the remarks she imputed to him concerning the moths. She said that he had made that remark three times. She said that it was only made about her and she had not mistaken or misheard the remarks which it was suggested were made by Mr Purkis in the context of a general concern about moths in the showroom. She maintained her claim that Mr Purkis had stood outside the toilet waiting for her to come out on about two occasions and said words to the effect:
“I thought you had fallen in.”
In regard to the request for a massage incident, the applicant agreed that Mr Purkis did not ask her directly to give him a massage, but she said that she was the only person in the shop at the time and so when he suggested that he would like someone to give him a massage she naturally thought he was referring to her. She did not accept that she had misconstrued an innocent comment.
The applicant maintained the other allegations that she had made that Mr Purkis had once slapped her on the backside and he lent on the side of her body and he had said to her words to the effect “you look lovely today” on a number of occasions. In regard to this complaint, she confirmed that she did not let Mr Purkis know that the comments were unwelcome and whilst she disagreed that he was acting reasonably in trying to build the confidence of his staff and in particular, her, she did agree that she did not think that he was showing any sexual interest in her when he used those words. However later she said that she thought that some of his actions conveyed a sexual interest in her.
The applicant was closely cross-examined about occasions when Mr Purkis is alleged to have sat too close to her or otherwise invaded her personal space. The applicant agreed that she did not tell Mr Purkis that this was a matter which caused concern to her. It would therefore be difficult for him to have known of that concern and altered his behaviour appropriately.
The applicant was cross-examined about her attendance at social functions arranged through the business. She agreed that she was sociable and pleasant at these functions and enjoyed herself at the Christmas dinner. She denied going up to Mr Purkis at a function at the Taronga Park Zoo and rubbing up against him saying “That’s a great suit you’re wearing”. She agreed that at least in the first week of her training there was some role playing with Mr Purkis as the trainer and she accepted that it was standard practice for sales to be monitored by managerial staff.
In re-examination the applicant stated that she did not get the workbook until a few weeks after she had started work, perhaps four weeks. She only got the checksheet six weeks after she started work and certainly not at the same time that she got the workbook. She said that when she got the checksheet Ms Tropiano said to her words to the effect:
“Now you have the textbook and the answer book you’ll become a real expert at selling.”
She claimed that Ms Tropiano said that she could copy out from the workbook and use the same examples.
One of the concerns I have about the applicant’s evidence is that her recollection was selective. It seldom included any admission which might be against her interests, save perhaps in relation to her use of confidential company information. Another is the lack of complaint about any conduct of Mr Purkis to Ms Tropiano or anyone else in authority. I also noted that the checksheet that she completed bore dates underneath her signature, the first of which was as early as 20 September 2000. The applicant commenced work on 4 September 2000, so the evidence she gave about the timing of the receipt of the workbook and the checksheet must necessarily be incorrect.
The view
The court was given an opportunity to view the respondent’s premises at which the applicant worked. A plan of the upper part of the premises has been tendered in evidence as exhibit E. It is upon this floor that Mr Purkis’ office is situated. During the course of the view the applicant demonstrated where she was standing when the incident with the coral cane took place. This is not the place which the applicant had originally marked on the plan but she explained that she had been confused and was holding the plan upside down. It is the respondents’ case that given the size of the room and the size of the cane the incident of which the applicant complains could not possibly have happened. It is my opinion that even if certain boxes which the respondent alleges were placed in the room (denied by the applicant) were so placed, and having seen the cane, the incident could have occurred as suggested by the applicant. The room is certainly not large but I do not believe that the incident requires the space suggested by those appearing for the respondents. I say this on the assumption that I otherwise find that the applicant’s evidence on the incident is accepted.
The court was shown the area behind the point of sale where it is alleged by the applicant that Mr Purkis pushed his knees into the back of the applicant whilst she was talking to another sales assistant. This area was also small but not so small that the incident could not have occurred.
The court was also shown the back office and kitchen area. This is where the ladies toilet is. It is the applicant’s allegation that Mr Purkis on more than one occasion stood outside the ladies toilet waiting for her to leave and then asked her to go on to the shop floor immediately to serve the customers. It is the respondent’s case that Mr Purkis was not standing immediately outside the door waiting upon the applicant but he was in the kitchen area of the room. The view itself was not of any assistance in resolving which of these two versions was the more accurate.
Dr Mark Hardy
Dr Hardy is a general practitioner who prepared a report dated 1 July 2001 that became exhibit 1 in the proceedings. The report indicates that the applicant presented to him on 22 December 2000 with a history of depression, anxiety and distress which she related to her work where she alleged that she had been sexually harassed for some weeks leading up to the consultation. She told Dr Hardy that she had been the victim of workplace discrimination because she had not received a Christmas bonus and was emotionally distressed and anxious. Dr Hardy prescribed her Valium and offered her an opportunity to come and discuss the matter with him further if she felt she needed a consultation. In his evidence Dr Hardy agreed that she had not returned to him for treatment of any matter arising out of her employment until 1 February 2002. On this occasion she advised that she was still suffering from the problems that had occurred in her workplace the previous year. He took a reasonably full history of reported symptoms and diagnosed depression and prescribed a six month course of anti-depressants and recommended that the applicant see a psychologist, Ms Zora Impy. Dr Hardy has not seen the applicant since that time.
Dr Hardy agreed with counsel for the respondents that he accepted the history given to him by the applicant and made no attempt to verify it.
Ms Zora Impy
Ms Impy is a psychologist who saw the applicant on three occasions. The first occasion was shortly after the applicant’s second visit to Dr Hardy, the second occasion was approximately two to three weeks thereafter and the final occasion was in May 2002. Ms Impy prepared a report which became exhibit 2.
Ms Impy confirmed that the history which she recites is one which she took from the applicant but which was not independently verified. Ms Impy said that she did not diagnose depression in respect of the applicant. The applicant had not attended her on enough occasions for her to do this. If she had come more regularly as had been recommended she would have taken the applicant through the tests for depression. Ms Impy confirmed that she had seen the report of Dr Timney and did not disagree with it. She informed counsel for the respondent that she did not expect the applicant to return to her as a patient. She said that this had been discussed with the applicant and the applicant had told her that she would think about it.
I note that the applicant first went to see Ms Impy on 20 February 2002, so that her presentation would not to my mind constitute any form of corroboration of her story because the consultation did not take place until after the complaint had been made to HREOC and had been terminated. Contemporaneous consultations with medical practitioners and the provision of a history reflective of an applicant’s allegations can provide assistance to a court in considering the veracity of a witness’ testimony. But this is not what occurred in the present proceedings.
This report and the evidence of the witness was of little assistance to the court in answering the crucial question of whether or not the events complained of occurred. The report is only of help in relation to the assessment of the applicant’s disabilities to the extent that the applicant’s evidence is found to be acceptable.
Respondents’ case
Mr Brian Henry Purkis
Mr Purkis gave evidence by affidavit sworn on 10 May 2002.
Mr Purkis is the retail manager of the Paspaley Pearls group of companies, a position he has held since August 1998. He has been employed in the retail industry for 30 years and has specialised in working for companies in the top end of the market and in particular companies within the Cartier organisation.
Mr Purkis states at paragraph 4 of his affidavit that he is a homosexual man of 53 years of age. Mr Purkis’ sexual orientation takes on some importance in the case because the respondents indicated that they would be submitting that to the extent any finding might be made of “unwelcome conduct”, his orientation would militate against such conduct being considered “unwelcome conduct of a sexual nature”.
Mr Purkis denies the allegations which are made against him by the applicant. He explained that he would not normally have carried out quite such intense training of the applicant but for the fact that Ms Tropiano, the store manager was on honeymoon at the time the applicant commenced. He explained that the environment of a high class jewellery store is “a very tactile environment”. In other words, it is important and often necessary to be very close physically to customers. To some extent this was reflected in the training. It is often necessary for sales people to assist customers to try on jewellery.
Mr Purkis also explained that the high value of the merchandise in the shop required stringent security measures being taken. For example, it was a company rule never to have more than three items on display at any time. Mr Purkis considered it part of his duties to ensure that when he was in or around the showroom that this policy was complied with. Mr Purkis also considered that introducing himself to customers and taking part in the sale was a successful selling tool, particularly when the merchandise in question was of high value.
Mr Purkis’ evidence disputes a number of statements made by the applicant concerning the terms and conditions of her employment and in particular in relation to the bonus. This evidence is not strictly relevant to the evidence of alleged sex discrimination, although possibly it is relevant to the question of victimisation. The applicant is complaining that she did not receive a Christmas bonus which everyone else received and blames that upon the fact that she had complained to the other staff about incidents with Mr Purkis.
I am satisfied that the discussions outlined by Mr Purkis in his affidavit at paragraph 26 could have led the applicant to believe that there was a distinction between the bonus paid on sales following completion of the Friedman course and the bonus paid annually. Mr Purkis admits to saying:
“Depending on your individual sales and your contribution to overall sales, there is an annual bonus paid on performance over the year.”
It would not be difficult to interpret those words as meaning a general Christmas bonus, albeit dependent on sales, but independent of the Friedman course.
Mr Purkis stated that he did not recall the applicant ever behaving in an uncomfortable manner in his presence and that she never said or did anything to suggest that he made her feel uncomfortable. It is his view (and the respondents’ case generally) that the opposite is true. He believed that Ms Font made visible efforts to ingratiate herself with him in various ways such as offering to make coffee for him, offering to take his clothes to the drycleaners, trying to sit next to him at functions and complimenting him.
Mr Purkis’ evidence confirmed that the applicant was told that she was not getting the end of year bonus because she had not completed the Friedman course unless she was given further time to do that.
Mr Purkis deals in his affidavit in some detail with the meeting on 17 January 2001, which was the first time that Ms Font raised with him directly the walking stick incident and other complaints. His version of the incident is similar to the applicant’s in that the matter was raised in response to criticism of Ms Font for not completing the Friedman course and proceeded with the following recollection of the conversation:
BP: “Simone rang me and told me about this harassment complaint while I was in Broome. Jan told Simone that you were going to try and set me up. This is extremely funny. Can you please explain yourself?
The applicant then became very restless and anxious. I then said to Ms Tropiano:
BP: “Oh, I do remember that – I brushed past you and then said sorry. If there has been any misunderstanding about that, then I apologise.”
PF: “Thank you”.
Mr Purkis gave evidence that he thought that was the end of the matter.
Mr Purkis did not tell anyone in authority at Paspaley Pearls about the allegations that had been made against him until 30 January 2001 after Ms Font had left the company for the last time. She terminated her employment by not returning to work after 24 January 2001.
In relation to the incident with the cane, Mr Purkis stated that the applicant was standing in the middle of the room where the telephone was. He denied that there was another telephone at the end of the room where the applicant said she was standing. He agreed that the applicant was on the telephone and was writing. He stated that he walked into the room with the two canes in his hand towards the boxes which were on the floor or near the safe. In doing so he brushed past the applicant and said words to the effect that he was sorry and put the canes away.
Mr Purkis was examined by his counsel in relation to the allegations that he had stood outside the toilet door on occasions when the applicant was in there and said words to the effect “I thought you had fallen in”. He denied this allegation absolutely. He said that he may well have been in the area when the applicant was in the toilet and he may well have told the applicant to get back on the floor because there were customers waiting to be served, but he denied absolutely standing outside the toilet waiting for her. Mr Purkis also denied changing his tone of voice when he spoke to the applicant.
Mr Purkis was the subject of significant cross-examination. He agreed that he had been given the nickname “Chopper” by staff at Paspaley Pearls. It related to his practice of hovering around people in the store, standing nearby to them. He said that this was a way of supervising sales. He says he often knelt down so that he was at eye level with the customers.
Mr Purkis was questioned about the day on which Ms Tropiano telephoned him in Broome to tell him about the complaints of sexual harassment. He agreed that the detail which he gave about these matters to the court was considerably more than that which he had put into his affidavit. There was some confusion as to how many telephone conversations Mr Purkis had with Ms Tropiano on the subject and when they were held. At first Mr Purkis thought he had only had one conversation with Ms Tropiano but then agreed that he had two. It was his view that the second conversation took place some time later. He agreed that he said nothing about the matter to Ms Paspaley or anyone else in authority although he could have done. He said that he wanted to check things out when he returned to Sydney, he wanted to get to the bottom of the allegations and find out who had been making them. After a series of questions he said that whilst he knew that the allegations were said to have come from Ms Font he was concerned that they had been made up by Ms Buckley with whom he knew Ms Font did not get along. He thought the best way to get to the bottom of the matter was to have what he called an open meeting with the staff when he returned to Sydney. He said he was not concerned about what might happen if Ms Paspaley knew about the allegation because the allegations were not true and he thought he could resolve the problem. He said that Ms Tropiano had told him about more than just the allegation concerning the cane. She said that there were complaints that he had touched Ms Font in an inappropriate way.
Mr Purkis raised the matter some time after he returned to Sydney. He denied that he used any threatening remarks in the conversation with all the staff but asked whether anyone had any complaints to raise with him. Nothing was said by anybody.
The way in which Mr Purkis dealt with these allegations by way of open forum may well have been inappropriate. Mr Purkis in his affidavit says that he said words to the effect:
“I have heard rumours about me and I want to say does anyone have a problem about me. Maureen? Jan? Paloma? Simone?”
There was no response from anyone, I said:
“Okay that’s fine. Let’s get on with business.”
There must be some doubt as to whether a conversation which proceeded on these lines could be said to be bringing a very delicate matter out into the open. Mr Purkis did not speak to any of the staff individually either before or after the group forum. He did not report it to head office. It is difficult to decide whether this conduct was the result of inadequate training (and that is clear from Mr Purkis’ response to questions from Ms Eastman) or because he believed he could kill off the allegations without them being brought to the attention of those at head office. Possibly the answers he gave indicate a mixture of both. The lack of training prevented Mr Purkis from understanding the nature of the allegations and the proper way of dealing with them from the point of view of both himself and the complainant. He may well also have thought that his approach might result in bringing the matter to a conclusion without the involvement of Ms Paspaley or management. This would obviously be a preferable course of action so far as he was concerned.
During the course of his cross-examination it appeared that Mr Purkis’ story concerning the cane incident altered. The clear impression that I was given and the way in which the evidence was led from Mr Purkis and the way in which the applicant was cross-examined was that “brushing past” meant that some part of Mr Purkis’ body, or possibly the side of the cane came into contact with some part of the applicant’s body. As the cross-examination proceeded Mr Purkis’ explanation became more detailed. He told the court that he held the canes, one in each hand in the middle of the canes. He said that as he passed Ms Font he felt one of the walking sticks fall. He said:
“It moved as I walked through, it slipped down and I adjusted it.”
He went on:
“As I was walking past the cane made contact with her body.”
And:
“I said I’m sorry, I don’t know what she did – she went out of the room – I didn’t see her crying, I didn’t speak to her after.”
Mr Purkis was asked why he did not say anything to the applicant on his return from Broome after he had heard about the complaint and knew that it involved the incident with the cane. His response was that he could not have said anything to the applicant when he returned and he could not have said words to the effect that he remembered the incident, that he did not jab the stick at the applicant, it had slipped, but he gave no explanation as to why.
Mr Purkis was questioned about the interviews with the applicant on the 2 and 17 January 2001. He went through the checksheet and pointed out areas in which he believed the applicant had not properly completed it. He felt the applicant was very uncomfortable with completing the Friedman and he put down her leaving to the fact that she did not want to complete it and did not want to become a team member. He did not think it had anything to do with the applicant’s concerns about his conduct towards her.
Mr Purkis was questioned at some length about the bonus which Ms Buckley received. Exhibit 11 is a pay sheet which indicates that Ms Buckley received a $950.00 bonus in December 2000. Mr Purkis was pressed to admit that this was a Christmas bonus. Mr Purkis did not accept this and was firm in his belief that it was an accumulated Friedman bonus in respect of the period following her completion of the Friedman course in October. He said that Christmas bonuses, if they were paid were not paid until February or March of the following year. He did, however, say that Ms Font was the only person not to receive a bonus in December.
Mr Purkis’ responses indicated that he did spend a considerable amount of time training Ms Font. That training did involve some close physical contact. He accepted that Ms Font paid him more attention than other members of staff and that from time to time she undertook personal errands for him such as collecting his drycleaning or providing him with coffee. Mr Purkis denied making the comments relating to a massage or the comments relating to the moths. He denied that he recommended Ms Font for promotion and said that she must have misunderstood the general comments that he made to all staff relating to the possible move to Martin Place. He stated that Ms Font was not sexually attractive to him and that she did not initiate any sexual contact with him. He agreed that she never contacted him after hours or had really any association with him outside the workplace other than at functions to which staff of Paspaley Pearls were invited. Mr Purkis denied placing his knees behind those of the applicant or touching her on the stomach or rubbing her stomach or saying that she was looking fat and might be pregnant. He did not slap her on the backside and did not wait outside the toilet for her. He did not suggest that she spend the night with Mr Carrera.
Dr Timney
Dr Timney is a consultant psychiatrist who provided two medico-legal reports to the respondent’s solicitors. These, together with the letters of request are found as exhibits K and L.
The evidence of Dr Timney has little to add to the resolution of this case. To the extent it deals with the applicant’s medical condition it is relatively innocuous, suggesting that the applicant was not suffering any serious effects of the alleged incidents. He notes that the applicant had no difficulty obtaining employment after she left Paspaley Pearls. The evidence argues against any continuing sequelae from the alleged incidents.
However, the witness was also asked questions which were intended to elicit an opinion as to the veracity of the applicant, or more accurately, whether the alleged incidents actually occurred or may have been invented. The witness agreed that he was less happy responding to such enquiries. He did come to a view that the applicant may have made up the allegations. This view was influenced by his observations of her and his views as to her psychological condition. He was strongly influenced by the existence of an apparent motive for making the allegations. This motive was the non-payment of the Christmas bonus. When the witness saw the applicant he was not clear as to whether she had made complaints about the alleged harassment prior to the bonus issue arising. The evidence is that that did occur.
In response to questions from me, Dr Timney maintained his views as to the possibility of invention but in relation to the cane incident this view was based on the description of the incident given to him by the applicant. He seemed less sure when I asked him what his views might have been if the applicant had referred to the incident as a “jab in the behind”.
I am not satisfied that a report which makes findings of normality from a psychiatric point of view [p.6] can also be relied upon, without more substantial evidence and authority, to substantiate an opinion that the applicant has a personality disorder that leads her to make up stories of this nature. That is not to say I rely upon this finding to prove that the applicant told the truth about the incidents, only that I do not rely upon this witness’ testimony to establish that she did not.
Mr Kirkman
The respondent called Mr Kirkman. He is a friend of Mr Purkis’. He was frequently in the Paspaley Pearls office. He attended some functions of Paspaley Pearls which the applicant also attended. I accept his evidence to the extent that it deals with his observations where those relate directly to the applicant or to Mr Purkis. The most telling of these is that the applicant said to Mr Purkis at a function at Taronga Park Zoo words to the effect “that’s a very tight suit.”
Ms Simone Tropiano
Ms Tropiano was the manager of the King Street showroom at which the applicant worked. She took the applicant’s application for employment over the telephone and later interviewed her together with Mr Purkis. She decided to employ the applicant because of her previous experience as a sales person of high quality and expensive merchandise.
It is to be remembered that Ms Tropiano got married shortly after Ms Font commenced her employment. She was away for a considerable period and it was because of her absence that Mr Purkis had to take a more active part in Ms Font’s training. In the two affidavits which she filed Ms Tropiano speaks of the matters of which she had personal knowledge including the complaint which was made to her by Ms Buckley and Ms Eva that Ms Font had reported to them her concern about what she considered to be sexual harassment from Mr Purkis.
Ms Tropiano’s affidavit also contains a number of paragraphs which comment on the behaviour of Ms Font in the workplace. The intention appeared to be to establish that Ms Font showed interest in men who visited the store as customers, made frequent references to meeting males and discussed sexual matters with the witness. The affidavit was written in what I felt was a censorious tone by the witness. It is significant that although Ms Font’s conduct in these matters was known to the witness, her manager, and apparently disapproved of, the applicant was not disciplined. It was never suggested to Ms Font that perhaps she was not suited to the clientele that patronised the store. I note in this regard that Ms Font was for three months on a probation period. Whilst I would not find that these allegations are fabrications, I would have to be circumspect about the nature and extent of the conduct as well as its effect upon those who witnessed it. The evidence was led to assist me in deciding on the credibility of Ms Font and her reaction to the acts of alleged harassment. I think that the evidence is, at best, only of very limited assistance in this regard. To the extent that it is accepted it forms part of the background to the workplace in which Ms Font was employed.
Much was made in the evidence about the non-payment to the applicant of a Christmas bonus. I am satisfied from the evidence of this witness and Mr Purkis that the only bonus paid at Christmas time was the Friedman bonus. I am also satisfied that this was only paid to members of staff who had completed the Friedman course. The applicant did not complete that course. She may have been aware that her sales would be counted towards calculating a team based Friedman bonus. In all probability she misunderstood a statement made by Mr Purkis about the payment of the bonus at Christmas time. She had been told that a bonus would be paid at that time and assumed it was a Christmas bonus, not based on the Friedman. In this she was wrong. I do not accept that Ms Font was victimised by not being paid a bonus at this time. She was not entitled to the Friedman bonus and this was made clear to her.
It was also suggested to Ms Tropiano that she used Ms Font’s failure to complete the Friedman as an excuse to put into effect the dismissal of the applicant who had proved to be a difficult employee. The witness did not accept this. Nor do I. The applicant manifested the alleged difficulties well before her three month probation period concluded. No excuse for dismissal at that time was needed. I was also impressed by the testimony given by all the witnesses about the importance of the Friedman course and I accept that Ms Font was not able to complete it properly. The time taken by her to attempt the course was much longer than other staff. I think the written warnings were properly given even though on other performance criteria the applicant had achieved an acceptable standard. I think the warnings were properly given even though there is no reference to the Friedman course in the official documents provided to the applicant when she commenced her employment. I accept she was told about the Friedman at the interview and that Ms Font had told Ms Tropiano that she completed such a course with Angus & Coote.
The witness was pressed on her reaction to the allegations and in particular some notes made as an aide memoire and attached to her second affidavit. She was asked why she had never taken the matter up with Ms Font and why she hadn’t spoken to Marilyn Paspaley. She responded that she would have spoken to Marilyn Paspaley if the applicant had brought the complaints up with her directly. She said that after she had heard the complaints from Ms Buckley and Ms Eva she tried to give Ms Font an opportunity to speak to her about it directly. She did not herself take the matter up with Ms Font. When eventually Ms Font raised the complaints at the meeting on 17 January Ms Tropiano was with her supervisor Mr Purkis. She thought it was Mr Purkis’ responsibility to speak to Ms Paspaley in those circumstances. Ms Tropiano also said that she thought Ms Font would have herself gone to Ms Paspaley. She was also concerned that Ms Buckley may have made the whole thing up and that would have exacerbated conditions in the workplace. The witness’ response is not satisfactory. It indicates a very naive view of the responsibilities of a line manager in these circumstances. It points up a lack of proper procedure within the company but it does not assist on the real question in issue: did Mr Purkis act in the way alleged towards the applicant?
If I am of the view that the allegations were true (whether whole or in part) the lack of any proper action must have exacerbated the effect of the conduct. The witness took no steps whatsoever to discuss the allegations directly with the applicant. She did not refer them to senior management.
Ms Tropiano’s evidence concerning the meeting of 17 December which Mr Purkis held with all staff was not entirely consistent with that of Mr Purkis. She did not recall Mr Purkis raising the rumours about himself nor him saying that things were getting tough. She did recall him asking if there was anything people wanted to discuss but she said that generally the meeting dealt with late payments of the Friedman bonus.
Ms Tropiano was cross-examined about Ms Font’s efforts to complete the Friedman course. She clarified that she had marked the workbooks at an early stage but then had not done anything about them while she was away until they were submitted to her by Ms Font in response to the meeting which was held with Ms Tropiano and Mr Purkis. I have already indicated that I accept her evidence in relation to the Friedman workbooks.
In cross-examination Ms Tropiano confirmed that at the December 17th meeting Ms Font said words to the effect of:
“I don’t appreciate being touched by a manager.”
That she referred to the incident with the cane, that she referred to Ms Tropiano’s husband and that Mr Purkis said in response to this:
“I didn’t think anything of it, I am sorry if you were offended.”
Ms Tropiano’s reason for not taking the matter further after that was, she said, that she thought Ms Font had obtained her apology from Mr Purkis and that was the end of the matter.
Ms Maureen Eva
Ms Eva was the most experienced of the three sales personnel employed by Paspaley. She confirmed that she had completed the Friedman course although as at the time she had been asked to do it there was no bonus attached she had taken approximately a year to complete it. She said that once the bonus scheme was introduced by Mr Purkis he was adamant that the course be completed within three months.
Ms Eva confirmed that Ms Font made the remarks deposed to in her affidavit when she spoke to Ms Eva and Ms Buckley about the alleged actions of Mr Purkis. She did not agree that Ms Font used the words she attributes to herself in regard to the incident with the cane, however. Ms Eva also denied saying that she would write a letter for Ms Font and denied that Ms Buckley said so in her presence. She agreed that Ms Font did not say “I want to set him up”. She agreed that what Ms Font was telling her and Ms Buckley was that she wanted a witness to be around if an incident occurred again.
Ms Eva said that she felt Ms Font was confiding in her and Ms Buckley and was reluctant to speak to Ms Tropiano. She said that she did suggest that Ms Font speak to Ms Tropiano and that Ms Font’s response was probably along the lines that there was little point in doing this because of Ms Tropiano’s close association with Mr Purkis. It appears that Ms Buckley and Ms Eva did not decide immediately to speak to Ms Tropiano, they considered the matter over a weekend. When they eventually did speak to Ms Tropiano, Ms Eva says that she took an active part in the conversation although that is not the evidence of Ms Tropiano. Ms Eva did not recall Ms Buckley saying anything about the walking stick incident to Ms Tropiano and she said that she was first told about this by Mr Purkis when the case started. She agreed in cross examination that Ms Buckley may have said words to the effect that Ms Font was going to make a big scene the next time and that she wanted to set Mr Purkis up. She thought that the conversation included words to the effect that Ms Font had claimed that Mr Purkis had touched her and kneed her and made comments that she found sexually offensive.
Ms Eva said that she thought the allegations were very serious and that she wanted the situation to be laid out on the table and for the company not to be embarrassed. She expected Ms Tropiano to speak to Ms Font.
The witness was questioned about the bonus she received on 27 December. She accepted that the amount received may have been in excess of the normal Friedman bonus but was not prepared to agree that any element of it constituted a Christmas bonus. She was firm that bonuses were linked to personal and store performance.
Ms Jan Buckley
Ms Buckley had prepared an affidavit which, like that of Ms Eva, contained a number of observations about Ms Font and her behaviour in the workplace. Although I struck out one outrageous passage I allowed the balance to remain on the basis that these observations had already slipped into evidence from other witnesses and it would be inconsistent to strike them in relation to this witness. I have not found any of these observations particularly relevant or helpful to me in coming to any views as to the truth or otherwise of allegations made in these proceedings.
Ms Buckley deposed to the fact that Ms Font had discussed Mr Purkis’ conduct with her before she had discussed it with herself and Ms Eva. She said that Ms Font appeared upset and told her that “Something terrible had happened.” The first matter she spoke about was the walking stick incident. Ms Font said that Mr Purkis had poked at her with the walking stick and it entered her vagina. Ms Buckley said that Ms Font had made her complaints over a period of days and had gone “on and on” about the matter. While she didn’t recall her complaining about suggestive comments on the part of Mr Purkis she did recall complaints about him touching her behind the computer and “kneeing” her. She said words to the effect:
“Have you seen him? When I am at the computer, he knees me.”
Ms Buckley said that Ms Font did not ask her to tell anyone about the incident. Ms Buckley suggested that she speak to Ms Tropiano and that Ms Font responded that Ms Tropiano and Mr Purkis were very close. Ms Buckley took advice from her husband who suggested that she refer the matter to her line manager, Ms Tropiano and this is what she did. She understood from her conversations with Ms Font that Ms Font proposed to speak to Marilyn Paspaley directly and Ms Buckley thought that she ought to speak to Ms Tropiano before that happened.
Ms Buckley also agreed that Ms Font never said words to the effect that she was going to sue Mr Purkis for harassment nor did she say that she was going to set him up. She said words to the effect: “When he comes back and I am behind the computer and he knees me I will call out and you can witness it.”
Ms Buckley did agree that she had said to Ms Tropiano that Ms Font was going to set Mr Purkis up if he did it again.
Neither this witness nor Ms Eva were able to corroborate any of the allegations made by Ms Font and they both felt that they were rather out of character for Mr Purkis. Ms Buckley felt that she had done all that was required of her by informing her line manager and she did not feel that she should personally involve Ms Paspaley or that she should take the matter up directly with Mr Purkis. She felt that having told Ms Tropiano this would enable the parties to talk about the problem and work it out between them. She did not tell Ms Font that she had spoken to Ms Tropiano.
The witness confirmed that the Friedman course was a pre-condition of the award of a bonus and required by management. She was told at her initial interview that the course was compulsory and it was made clear to her that no sales made before the Friedman was completed would be counted. She was not given a deadline to complete it, but managed to do so within about three weeks of starting. She said the workbook was reviewed in Darwin by a Marie Underwood who sent her an email confirming that it had been completed satisfactorily.
The witness was questioned about the bonus system. She confirmed that the December bonus was an accumulated Friedman bonus and that there was no special Christmas bonus paid. She said there was a personal bonus, not tied to the Friedman but not paid at Christmas. Counsel for the applicant tried hard with this witness, and with Ms Eva to show that the money paid on 27 December did not compute with the bonus which was calculated from Exhibit 10. But the evidence was that these figures were calculated by head office. They were not much different from those that appeared from an analysis of performance. I do not think they prove the existence of a paid Christmas bonus upon which the applicant missed out. This witness recalled Mr Purkis saying to the applicant when she asked about her bonus on 17 December words to the effect:
“You have not completed the Friedman.”
The issues
The applicant divides her statutory claims into three categories, sexual harassment, sex discrimination and victimisation. It is appropriate to deal with each in turn.
Sexual harassment
Sexual harassment is defined by s.28A of the Sex Discrimination Act1984 (Cth) as follows:
“28A MEANING OF SEXUAL HARASSMENT
28A(1) [Sexual harassment defined] For the purposes of this Division, a person sexually harasses another person (the “person harassed”) if:
(a)the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or
(b)engages in other unwelcome conduct of a sexual nature in relation to the person harassed;
in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimidated.”
The conduct of a sexual nature which constitutes the allegation of sexual harassment is referred to in the complaint and in the affidavit of Paula Font dated 25 February 2002 as:
·Unwelcome comments;
·Suggestive actions and attention;
·Touching and close physical contact;
·Jabbing a walking stick between Ms Font’s legs into the back of her vagina.
In order for these matters to be found to constitute sexual harassment the applicant must establish that they constitute:
i)Conduct of a sexual nature;
ii)Conduct which is unwelcome;
iii)That the applicant was or would be offended, humiliated or intimidated by the conduct; and
iv)Having regard to all the circumstances, a reasonable person would have anticipated that the applicant would be offended, humiliated or intimidated.
The respondent has suggested that the matters complained of either did not occur at all or were the product of misunderstandings by the applicant. In order to reach a conclusion as to whether the allegations are well founded it is necessary to make some findings about the evidence of Mr Purkis and the applicant.
I am satisfied that Ms Font who was an experienced luxury goods salesperson saw that she had a unique opportunity, in the absence of Ms Tropiano on extended leave, to ingratiate herself with Mr Purkis who held a senior and important position in the retail business of the first respondent. I accept the evidence that she made it her business to be pleasant and of assistance to Mr Purkis. I accept the evidence that she would volunteer to do things for him such as collect his dry cleaning or bring sandwiches to him and I accept the evidence that she made a point of associating with him at office functions. I do not accept the suggestion that Ms Font was sexually attracted to Mr Purkis or that such attraction was a constituent of any of her actions towards him or formed any part of the motive behind her making the allegations which she made. I believe the sole motive behind Ms Font’s behaviour towards Mr Purkis (excluding her allegations against him) was to secure and advance her position within the first respondent’s retail business.
I would also find the fact that Ms Font did not complain about the alleged conduct of Mr Purkis does not mean in itself that it did not occur. In an employment situation, where the applicant was allegedly subjected to what her Counsel described as “low level harassment” over a period of time, a failure to complain is not unusual.
I accept that Mr Purkis is a homosexual. I accept that he had no sexual interest in the applicant. I accept that he took a strong interest in what was going on in the showroom floor and believed that his presence could assist in obtaining sales. I accept that the sale of expensive jewellery in a small shop involves an element of close contact between sales people and customers and that this might involve close contact between a manager and a sales person who are both attending to a sale of a piece of jewellery to one customer.
I am of the view that the hands on approach adopted by Mr Purkis, reflected in his nickname and accepted by him in his own evidence was conducive to him saying and doing things which another manager might not do. I believe that Mr Purkis felt that he could act more freely towards the applicant because of the attention which she paid to him than, he may well have felt, he could have acted towards one of the other sales personnel.
Whilst I can understand the reasons for Ms Font not complaining about certain alleged actions which she says she found unwelcome, her failure to do so may have meant that Mr Purkis continued with conduct towards her which he would not have continued with had he known that it was unwelcome.
In considering whether or not the events complained about occurred I note that there is no independent corroboration of any of them, that they were not all the subject of Ms Font’s discussion with Ms Eva and Ms Buckley, that Mr Purkis’ evidence, in relation to the stick incident particularly, changed and was at other times slightly ambivalent. I also note that Ms Buckley and Ms Eva and Mr Purkis are all still working together at the King Street showroom.
I have, whilst rehearsing the evidence made comments about my views on the witnesses. In regard to Ms Font I believe that her evidence was structured to best serve her claims and I am not prepared to accept all her denials concerning her behaviour towards Mr Purkis in the face of the evidence from Ms Tropiano, Ms Buckley and Ms Eva. These matters have damaged the applicant’s credit, not because of what they were, but because she denied them and I do not accept those denials. However, my views upon her credit do not extend to disbelieving everything she deposed to but it has made me cautious about accepting all of her evidence over that of Mr Purkis.
In regard to Mr Purkis, it is obvious that it is very much in his interests to deny these allegations. That, does not mean that his evidence is a falsehood. It merely contributes to the difficulty faced by a court in forming a view.
Unwelcome comments
The applicant alleged that Mr Purkis made the following comments at various times:
“That moth came out from underneath your skirt.” (The moth comment);
“You look lovely today.” (The look comment);
“Paloma’s getting fat, she looks pregnant.” (The pregnant comment);
“Is that your date?” (The date comment);
“I need someone to model the pearl bikini. Can you do it?…I thought I’d try just in case you said yes.” (The bikini comment);
“Mr Carrera is a nice man. You should spend the night with him at his hotel.” (The Carrera comment).
The moth comment, the lovely comment and the pregnant comment were all allegedly made in the showroom where other persons were present. No other person corroborates the making of these statements. They are denied by Mr Purkis. I am not satisfied that the applicant has met the onus of proof in this regard, which onus, in relation to these allegations I have set at the ordinary civil standard and not the “Brigginshaw” standard.
In regard to the “date” comment the applicant says it happened on several occasions, Mr Purkis denies he ever said the words. For the reasons which I give in relation to the other behaviour of Mr Purkis I am prepared to accept they were said. I am likewise satisfied that the pearl bikini remarks were made. In regard to the Carrera remarks, I do not think the applicant has satisfied the onus. The remarks are deeply offensive, are not corroborated and were not referred to by Ms Font in her complaint to Ms Eva and Ms Buckley, nor were they referred to in her original complaint to HREOC.
Suggestive actions and attention
The actions which constitute these complaints consist of Mr Purkis grabbing the applicant around the waist when he wanted to tell her something; a request for a massage; the fondling of the pearls on the pearl bikini and the request to fit the bikini on a model. There was also the allegation concerning waiting outside the toilet. The action of grabbing the applicant around the waist in order to speak with her would have occurred in the showroom. In the absence of any corroboration from either Ms Eva or Ms Buckley (Ms Tropiano was away) I am not prepared to find that the applicant has satisfied the onus. In regard to the request for the massage Mr Purkis denied it. The allegation appears in the applicant’s affidavit. I am prepared to find that the remark was made. The evidence with regard to the pearl bikini seems to be that Mr Purkis did ask Ms Font to affix some pearls to the bikini. She refused. I do not accept that he fondled the pearls in a suggestive manner or asked Ms Font to fit the bikini on the model.
In relation to the “toilet” allegation, this seems to consist of two parts. The first is the possible suggestion of invasion of personal space by loitering outside the toilet and the second relates to the remarks attributed to Mr Purkis that “I thought you had fallen in”. I had the benefit of a view of the premises. The area in which the toilet is situated is very small and adjoins a common tea room. I am not satisfied that the applicant has established that Mr Purkis was loitering outside the toilet area and thus invading Ms Font’s personal space. This attribute could be applied to any person in that small area. I also do not think the remarks (which Mr Purkis denies were made) constitute conduct of a sexual nature. It is no more than toilet humour.
Touching and close physical contact
These complaints involved Mr Purkis sitting down close to the applicant in the showroom at a very small desk. Mr Purkis did not deny this. It seems to have occurred in training sessions. I am not satisfied that Mr Purkis sat any nearer to the applicant than any other customer would have sat or that the applicant was treated any differently from Ms Buckley who underwent training at the same time and who did not believe that Mr Purkis was invading her personal space.
The applicant alleges that on an occasion in early October 2000 when she was standing behind the desk where the point of sale is, Mr Purkis came up behind her and pushed his knees into the back of her legs. This matter was referred to by the applicant in her complaint to Ms Eva and Ms Buckley. Despite Mr Purkis’ denials and the lack of corroboration from any other person in the showroom at the time, I prefer Ms Font’s evidence on this matter. I note the action could not be seen by others in the showroom in front of the desk. I have already said that I believe that Ms Font’s relationship with Mr Purkis was different to that of the other two sales personnel. They were older than her. Ms Eva had been with the company for a very long time. Ms Buckley was married. Ms Font courted the attention of Mr Purkis. It is not unnatural, although it may have been wrong, that Mr Purkis responded or that his response took the form of jocular (in the sense it is defined in the Macquarie Dictionary of “waggish”) activity. It is for this reason that I also am prepared to accept that on 25 October 2000 as Ms Font was writing up the daily banking Mr Purkis walked past and slapped her on the backside. There is no suggestion that this was any more than a slight slap which would not have caused her to cry out or to draw the attention of others to it. Finally, it is suggested that in or around the end of October when she was serving a customer Mr Purkis would find reason to come over to the applicant and lean into the side of her body. Mr Purkis accepts that he had a propensity for standing close to people. This may well be what the applicant is complaining about.
The walking stick incident
This is by far the most serious incident. It was described in detail by Ms Font. It was the incident she complained about to Ms Buckley and Ms Eva and it was the incident which she brought up in a meeting on 17 January 2001 with Ms Tropiano and Mr Purkis. I had a view of the premises and the cane. Even accepting that Ms Font was bending over in the middle of the office as opposed to one end, I believe the incident could have occurred. The incident was originally completely denied but later the evidence of Mr Purkis changed so that even he admitted that the applicant had been touched by the cane. The applicant made much of the fact that the point of the cane entered the rear of her vagina. The respondents made much of the difficulty of this possibly happening. I am unable to say whether it did or it didn’t but I am satisfied on the more onerous “Briginshaw” test that the applicant was jabbed in the rear by Mr Purkis using the Carrera cane.
It should be noted that in his affidavit and evidence and in the evidence of other witnesses Mr Purkis seeks to persuade the court that Ms Font exhibited to him an unusual degree of intimacy. I have accepted this. Examples are offering to make coffee for him, offering to take his clothes to the drycleaners, trying to sit next to him at functions and complimenting him. Mr Purkis does not claim that he complained about Ms Font’s actions or even that he found them unusual or embarrassing. The incidents which I have found took place could well be seen as his reaction to the intimacy which he alleges came from Ms Font.
Do the actions which I have found to have occurred constitute sexual harassment within the definition contained in s.28A of the SDA?
There is no doubt that conduct of a sexual nature can encompass comments. Sub-section 28A(2) brings statements of a sexual nature into the provisions of the definition. The comments which I have found were made are to my mind conduct of a sexual nature. Ms Font has deposed to the fact that the conduct was unwelcome. This is a subjective matter and I do not believe that the evidence establishes any view to the contrary. I am also not prepared to find that Ms Font would not have been offended by the comments which were made. But I am not satisfied that having regard to all the circumstances including the circumstances of Ms Font’s conduct towards Mr Purkis that a reasonable person would have anticipated that she would have been offended, humiliated or intimidated. Perhaps the most serious of the comments which I have found to have been made relates to the bikini. I have accepted the evidence about Ms Font making remarks about Mr Purkis’ suit at the function in the Taronga Park Zoo. If she thought that this was a reasonable comment to make, then I think a reasonable person would not consider her to have been offended, humiliated or intimidated by Mr Purkis saying to her in what obviously must have been an attempt at humour, given the size of the bikini, “I need someone to model the bikini. Can you do it?” The other comments found to have been made by Mr Purkis are more innocuous than the one quoted and to my mind would not have breached the Act on the objective test posed.
My findings in relation to the alleged suggestive actions and attention are restricted to the remark about the massage. Mr Purkis’ answer to the massage comment was that it did not occur. Ms Font agrees that she was not asked to give Mr Purkis a massage. If Mr Purkis had asked Ms Font to give him a massage then I would have found that it was unwelcome conduct of a sexual nature notwithstanding Mr Purkis’ homosexuality. Asking a person of the opposite sex to have this type of contact seems to me to fall within the definition found in the New Shorter Oxford Dictionary which defines “sexual” as:
“Pertaining to, or arising from the possession of a particular sex; relating to the sexes or to social relations between them… characteristic of or peculiar to one sex or the other; pertaining to or involving physical intercourse, as in reproduction; deriving from or relating to desire for sex or for carnal pleasure.”
However, Mr Purkis did not do that. He merely made a statement. Given the fact that I have found that very few unwelcome statements were made I do not think it is reasonable to find a course of conduct, which would be one of the circumstances that a reasonable person would take into account when considering whether or not the person harassed would be offended, humiliated or intimidated. I am inclined to the view that in isolation this statement does not meet that test.
I now turn to the three incidents of physical contact which I have found took place and which I believe could constitute inappropriate action. These are the “kneeing” incident, the “slap on the backside” and the “jab with the walking stick”.
I am not prepared to accept the existence of a “defence of homosexuality”. The fact that a person may conduct themselves in a manner which would otherwise be in breach of s.28A cannot be negated by the fact that that person may not have any sexual designs upon the victim. Under the SDA, a person need not actually intend to offend for his or her conduct to amount to sexual harassment. The conduct will amount to harassment if it occurs in circumstances in which a reasonable person would have anticipated that the person harassed would be offended, humiliated or intimidated (see also Cook v Plauen Holdings Pty Limited [2001] FMCA 91 at [24]). The SDA is a protective Act. It is designed to protect people from the type of behaviour which other members of the community would consider inappropriate by reason of its sexual connotation. It is the actions themselves that have to be assessed, not the person who is carrying them out. There is no requirement in the Act that the protagonist should be of a different sex or of a different sexual preference to the victim. In Daniels v Hunter Water Board (1994) EOC 92–626 the harassment was perpetrated by men against another man on the basis of his perceived homosexuality.
I have no doubt that the conduct which I have found to have taken place meets all the tests required by s.28A and constitutes sexual harassment by Mr Purkis of the applicant.
Sexual siscrimination
The applicant argues that the actions of the respondent which I have found to have occurred constitute not only harassment but also sexual discrimination. In this she is supported by the authorities: O’Callagan v Loder [1983] 3 NSWLR 89; Elliot v Nanda (2001) 111 FCR 240 at [137] and Lesley v Graham [2002] FCA 32 at [73].
The applicant in her submissions supports the claim that the harassment in this case constitutes sex discrimination by a quotation from R v Equal Opportunity Board; ex-parte Burns [1985] VR 317 when Nathan J held at p323:
“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 who suffer such unwelcome intrusions vis-à-vis those who do not.”
This case was referred to by Spender J in Aldridge v Booth (1988) 80 ALR 1 at [16]. His Honour at [17] said:
“The fact that there are other matters, in addition to the sex of the recipient, contributing to the sexual harassment, and as a consequence that not all women are subject to it, does not prevent the conclusion that sexual harassment is discrimination on the ground of sex. Moreover, the fact that men, as well as women, are possible subjects of sexual harassment, does not alter the fact that sexual harassment of women involves discrimination on the ground of sex. Both forms of harassment will be discriminatory where a similarly situated person of the opposite sex would not be so treated. Sexual harassment and sexual harassment of men by women can be characterised as discrimination on the basis of sex.”
The respondent attacks the claim of discrimination by denying that any less favourable treatment has been proved. I think the quotation from Nathan J deals with that submission. The respondent then goes on to say that it must be shown that the incident arose because of or on the basis of the gender of the victim and states:
“[60] There is simply no evidence to sustain the proposition that the walking cane incident occurred only because Ms Font was a woman. Indeed given Mr Purkis’ homosexuality, there is an inference reasonably available that if he was to do such a thing (which he has vehemently and consistently denied), then it would be more likely that he would do it to a man and not a woman. By teasing out the elements in this way it can be seen conclusively that there was no act of sex discrimination.”
I have given this passage much thought. I am of the view that it is wrong. My observations of Mr Purkis and my consideration of the evidence given in this case lead me to the view that Mr Purkis would not have acted in this way towards a heterosexual male. Once that finding has been made, it is not difficult to hold that the conduct occurred because Ms Font was a woman even if it might also have occurred because another victim may have been a homosexual man. Ms Font was treated less favourably than a heterosexual man would have been treated by Mr Purkis and by the first respondent insofar as it is vicariously liable for his conduct.
Victimisation
Section 94 SDA deals with victimisation in the following terms:
“SECTION 94 VICTIMISATION
94(1) [Offence] A person shall not commit an act of victimization against another person.
94(2) [Act of victimization] For the purposes of subsection (1), a person shall be taken to commit an act of victimization against another person if the first-mentioned person subjects, or threatens to subject, the other person to any detriment on the ground that the other person:
(a)has made, or proposes to make, a complaint under this Act or the Human Rights and Equal Opportunity Commission Act 1986;
(b)has brought, or proposes to bring, proceedings under this Act or the Human Rights and Equal Opportunity Commission Act 1986 against any person;
…
(f)has reasonably asserted, or proposes to assert, any rights of the person or the rights of any other person under this Act or the Human Rights and Equal Opportunity Commission Act 1986; or
(g)has made an allegation that a person has done an act that is unlawful by reason of a provision of Part II;
or on the ground that the first-mentioned person believes that the other person has done, or proposes to do, an act or thing referred to in any of paragraphs (a) to (g), inclusive.”
The applicant alleges that she was subjected to detriment following her making of allegations to Ms Buckley and Ms Eva in late November 2000 and to Mr Purkis and Ms Tropiano on 17 January 2001 in that:
b)Mr Purkis became more reserved towards her;
c)Ms Tropiano paid greater attention to her;
d)The level of monitoring and supervision increased;
e)She was denied a Christmas bonus;
f)Frequent meetings were called to discuss her work performance even the performance appraisal rated her performance as satisfactory;
g)She was subject to verbal warnings and two written warnings in relation to her employment;
h)She felt she was forced to resign;
i)The allegations about Mr Purkis were ignored and not investigated.
I am not satisfied that the allegations concerning Mr Purkis being more reserved or Ms Tropiano paying more attention to the applicant constitute victimisation. Mr Purkis altered his conduct towards the applicant in a way that would avoid any suggestion of sexual harassment. He did not allow her to undertake any favours for him. He kept his distance from her and he spent more time in the office. I am unable to see how this constitutes a detriment although I fully accept that it came about because of the complaints which were made to Ms Eva and Ms Buckley. I am not prepared to accept that Ms Tropiano’s conduct towards the applicant constituted a detriment either. In regard to Ms Tropiano I am of the view that she was an impressive witness whose evidence I accept in its entirety. I deal with this in more detail in relation to the complaints concerning the Christmas bonus and its relationship to the Friedman and the reasons for Ms Font terminating her employment below.
The applicant also alleges that Ms Font was subject to a detriment because the allegations she made about Mr Purkis were ignored and were not investigated. This form of complaint was considered by J Basten QC sitting as a HREOC Commissioner in Bailey v ANU (1995) EOC 92-744 at 78,555. The Commissioner analysed the complaint as the absence of a dispute resolution mechanism and said:
“It is not sufficient that the detriment exists in a context in which a complaint or allegations have been made. The person must be subjected to that detriment, ‘on the ground that’ she has made such a complaint or allegation. Thus, the absence of a dispute resolution mechanism is not in itself sufficient to establish victimisation.”
I agree with the analysis of the Commissioner.
The real complaint of victimisation relates to the inter-connected matters of the Christmas bonus, the failure to complete the Friedman course and the termination of the applicant’s employment. I have already said, but it bears repeating, that I am satisfied that this company placed a particular importance on completion of the Friedman course.
I believe that the evidence to support this from Ms Tropiano, Mr Purkis, Ms Buckley and Ms Eva is overwhelming. I also accept the evidence that bonuses were not paid unless the Friedman course had been completed. I do not find that the inclusion of Ms Font in the weekly comparison with budget charts that were used to calculate the Friedman bonus to be inconsistent with this view. I accept the evidence that if an employee completed a Friedman before the end of a month then she would usually be paid the Friedman bonus for that month. No-one knew how long it would take Ms Font to complete the Friedman. It is perfectly reasonable for her figures to be displayed and for her to be given an opportunity to collect the Friedman bonus if she completed the course.
I repeat the view which I have already expressed that Ms Font had difficulty with the course. I do not think she clearly understood what was required from many of the answers. The answers which I have seen in the book would indicate that responses involving composition are not her strongest point. I think she is an intuitive salesperson who may well have benefited more from going to a demonstration of the Friedman method than from trying to understand it through the videos and the workbooks.
Ms Font made a complaint about Mr Purkis to Ms Buckley and Ms Eva. They specifically asked her whether they could do anything to help her and in particular whether they should assist her in bringing the matter to the attention of Marilyn Paspaley. Ms Font asked them not to do anything and they did not tell her that they had referred the matter to Ms Tropiano. Ms Tropiano did not tell her that she had referred the matter to Mr Purkis. Nobody raised the matter again with Ms Font. I am being asked to draw an inference that the conduct of Mr Purkis and Ms Tropiano in relation to the non-completion of the Friedman course arose not out of that reason but out of the existence of the allegations. I am asked to draw the inference that they were part of a plan by Mr Purkis and Ms Tropiano to terminate the employment of Ms Font.
Section 8 of the Act does not apply to s.94 but even if it did I do not believe that there is any evidence from which I can draw the inference required. At the meeting on 17 December Mr Purkis says that he gave people an opportunity to raise openly the allegations. Nothing happened. He then dealt with the question of the delayed Friedman bonuses. Ms Font enquired about her bonus and was told that she would not be getting one because she had not completed the Friedman. There were then possibly two further discussions between Ms Font and Mr Purkis, one of which was in private. On neither of those occasions were the allegations raised. I believe that Ms Font wrongly misunderstood that the payments were to be in the nature of a Christmas bonus which I am satisfied they were not. I do not see how Mr Purkis could have authorised the payment of a bonus based upon achievement against budget to Ms Font who at that time had not complied with the fundamental requirements of payment of the bonus, namely completion of the course.
The applicant sought to establish through the evidence that each of the persons who received the bonus on 27 December received more than the amount that she would have received purely on a Friedman calculation. If this occurred at all the amount involved for each of the two other staff was approximately $100.00. The calculations were not made in Sydney but at head office in Darwin. Neither of the staff expected a Christmas bonus but both expected a possible further personal bonus based upon results later in the next year. There is simply not enough evidence for me to say that these members of staff received a benefit which Ms Font did not receive by reason of the complaints which she had made.
I am satisfied that the concern which was expressed by Ms Tropiano and Mr Purkis about Ms Font not completing the Friedman and the giving of the written warnings was also justified. I do not accept that the Friedman was “completed”. Filling in a book is not completion of a course. The respondent points to a number of occasions where course work had not been completed. If that had been the only complaint made about her work it might have been easier to draw the implication required by the applicant. But a consideration of the whole book shows clearly that the course had not been understood and the appropriate work carried out.
I am of the view that Ms Font knew her shortcomings in regard to the Friedman course. I think that on 17 January 2001 she realised that she was not going to be able to do it properly within the time required. I think that is why she did, in the end, bring to the attention of Ms Tropiano and Mr Purkis her complaints about Mr Purkis which she otherwise believed were unknown to them. I do not think that making known those complaints caused Mr Purkis or Ms Tropiano to act any less favourably towards her. I think that, to the contrary, the existence of the complaints made them feel that they should give her one further chance to complete the course even though they had already given her deadlines which she had broken. I accept Ms Tropiano’s evidence that she wished to see Ms Font complete the course and remain in employment. I believe that Ms Font decided not to return to work to Paspaley Pearls because she knew that she would be required to complete the course which she felt she could not do. I do not believe that she left Paspaley Pearls because of the incidents which I have found to have occurred between her and Mr Purkis. They all occurred in a period which ended before she referred the matters to Ms Buckley and Ms Eva and Ms Font neither raised them herself with anyone else nor left her employment. I cannot find any victimisation in this regard.
Vicarious liability
The first respondent in its written submissions has conceded that it is vicariously liable for the actions of Mr Purkis. I have not found any of the actions of Ms Tropiano to constitute a breach of the Sex Discrimination Act.
Relief
Damages
I have found that the applicant was sexually harassed and discriminated against by the first and second respondents. I accept the submission of the applicant that the remarks which I have found to be in breach of the Act constitute a very low level of harassment. The incident of “kneeing” and the incident of being slapped upon the behind are obviously more serious and the “jabbing” incident is the most serious of all. In her helpful submissions, Counsel for the applicant provided me with a schedule of HREOC sexual harassment decisions indicating whether the matters were the subject of an appeal or rehearing before the Federal Court. I have also had regard to decisions of this Court in determining an appropriate solatium for the applicant. I have borne in mind what I regard to be a serious failure of the first respondent to put in place any appropriate machinery for dealing with this type of complaint. There was no sufficient publication of any sexual discrimination/harassment policies, there was no education and no responsibility was taken by senior members of staff. Ms Tropiano may have been an impressive witness but she was not, in this regard, an impressive manager. She should have followed her conscience and reported the complaints passed onto her by Ms Eva and Ms Buckley immediately to Ms Marilyn Paspaley. Mr Purkis should have told Ms Paspaley of what he had been informed by Ms Tropiano. Both Mr Purkis and Ms Tropiano should have informed Ms Paspaley of what occurred on 17 January 2001. Mr Purkis’ unsatisfactory evidence about “trying to get to the bottom of it” in response to questions about why he didn’t take the matter up directly with anyone was one of the reasons why I preferred Ms Font’s evidence over his in relation to the most serious incidents.
Employers should be aware of their duty to provide a safe and discrimination-free workplace for their employees. This legislation is not new. The first respondent is not a small company. It singularly failed its employees. If appropriate procedures had been in place then it is possible that these incidents would never have occurred.
I have considered the medical evidence. As frequently happens in matters of this nature, there is not much agreement between the witnesses. Dr Timney felt that the applicant had made up the allegations. I have not found that to be the case. I am of the view that an appropriate measure of damages in these proceedings for the hurt and humiliation suffered by Ms Font is $10,000.
Aggravated damages
The applicant also makes a claim for aggravated damages.
The applicant submits that the conduct of the case by the respondent was such as to make it appropriate to award aggravated damages. Aggravated damages have been awarded in anti-discrimination cases (see Whittle v Paulette (1994) EOC 92-621, McIntyre v Tully (1999) 90 IR 9 and Elliot v Nanda (supra)). Whilst damages are not awarded in every case where a defendant has elected to defend an action (Coyne v Citizen Finance Limited (1991) 172 CLR 211) there has to be conduct on the part of the defendant which lacks bona fides or is improper or is unjustifiable (Triggell v Pheeney (1951) 82 CLR 497).
In this case the conduct of the respondents complained of is the putting into evidence, by way of affidavits of the respondents witnesses and cross-examination of the applicant, various matters relating to the way she conducted herself with men, her conversations on sexual matters and her dress. Although the applicant sought to have these matters removed from the affidavits, I was pressed by the respondents to keep them in. I did so reluctantly and subject to their relevance. I found nothing relevant about them. They did not assist me in anyway to form a view about the applicant or the truth of her allegations. I compare this evidence with evidence of the applicant’s conduct vis-à-vis Mr Purkis. It will be clear from these reasons that I have found that evidence relevant. I accept the submission by the applicant’s Counsel that the former evidence was no more than an attempt to blacken the character of the applicant so that I should think less favourably of her in coming to any conclusions about the truthfulness of her evidence or the quantum of any damage she might have suffered. I think the whole exercise was unjustifiable and inappropriate and must have added to the distress felt by the applicant in giving her evidence and proceeding with the claim.
Although the damages claimed were categorised as “aggravated” the applicant in her submissions made much of what she considered to be (and I have so found) the unwarranted conduct of the respondent in the manner in which this claim was defended. But in doing this the applicant would tend to trespass upon that head of damage usually described as exemplary. The nature of such damages and their availability more generally in Australia than in England was discussed by the High Court in Lamb v Cotogno (1987) 74 ALR 188. They were accepted as being punitive in character although also being awarded as a deterrent and to:
“dissuade any urge for revenge felt by victims and to discourage any temptation to engage in self help likely to endanger the peace: cf Merest v Harvey (1814) 5 Taunt 442.”
The distinction between the two types of damages was recognised by the Queensland Supreme Court in Hehir v Smith (2002) EOC 93-214; [2002] QSC 92 where his Honour at [42] said:
“I consider that there was an error of principle in the application of the distinction between exemplary damages and aggravated damages. The following passage appears in the Tribunal’s reasons for judgment –
“In this case the first … [appellant] … has not merely denied the allegations of sexual harassment; he also took active measures to distort the documentary evidence of several witnesses by writing their Statutory Declarations or Affidavits in a way to put him in the best possible light and to ignore some relevant detail. … It has unnecessarily protracted a case which, in my opinion, could have reasonably been settle by conciliation but which instead has caused the … [respondent] … the extended stress of these hearings … I consider that an award of aggravated damages is appropriate …”
Despite the reference to causing the respondent “the extended stress of these hearings”, these were findings of reprehensible conduct which might perhaps have warranted punishment, rather than findings of the infliction of hurt, insult and humiliation. In short, there was an error of law in the awarding of aggravated damages, and that part of the damages award must be set aside.”
The overlap between these two forms of damages was discussed in Hunter Area Health Service v Marchlewski [2000] NSWCA 294 where at [92] Mason P giving the judgment of the Court said:
“It is well established that, in an appropriate case, tort damages may be increased or aggravated by reason of the defendant’s conduct towards the plaintiff after the initial wrong and during the period when the injury for that wrong is continuing to be felt or working itself out. The classic example is defamation, where conduct at trial may increase compensatory damages by giving rise to an aggravated damages component. Such conduct must go beyond what is involved in a
“bona-fide defence raised properly or justifiably in the circumstances known to the defendant” (Triggell v Pheeney (1951) 82 CLR 497 at 514).”
And at [98]:
“The case law reveals aggravated damages being awarded in a range of torts … If it be the law that some torts are incapable of attracting an award of aggravated damages then it will be necessary to search for unifying criteria. The task is not easy, for at least two reasons. First, the distinction between exemplary and aggravated damages was not clearly recognised until comparatively recently, with the result that “aggravated” damages awarded in the past for certain torts may, on analysis, turn out to be exemplary damages. The need to identify the discrimen only appears to have been recognised comparatively recently.”
The importance of the distinction between compensatory and punitive damages is that an applicant must establish a loss in order to be awarded compensatory damages. Even where that loss is constituted by something as abstract as hurt or humiliation the Courts have striven to measure those feelings and give them a value. In the decided cases on these matters in a discrimination context these would appear to have been a focus on the aggravating conduct rather than on its effect. This is not unreasonable where the aggravating conduct may consist of activity at the trial, as it did here. Is the applicant expected to ask for an adjournment to produce further medical evidence of her distress occasioned by the unwarranted prosecution of the respondent’s case? I think not. I think it is safer to recognise, as Wilson J did in Hehir (supra), the punitive element in these damages.
In both Hehir (supra) and in the judgment of McDonald J in MyerStores Limited v Soo [1991] 2 VR 597 the absence of a claim for exemplary damages was held to prevent any award of that nature being made. The Federal Magistrates Court is not a court of strict pleading and this is particularly true in matters brought to it under the HREOC Act for breaches of one of the Commonwealth Anti-discrimination Acts. I do not think that the fact that the conduct which is complained of was described as entitling the applicant to aggravated damages, when in fact a proper description would have included exemplary damages, should prevent the applicant from recovering. The claim for which compensation was sought was clearly articulated by the applicant in her submissions and dealt with by the respondent in its submissions. All that I propose to do is to give the award which I intend to make its proper nomenclature and that is “exemplary damages”.
I award the applicant $7,500 by way of exemplary damages.
Special damages and other orders
The applicant also claimed special damages in three parts. The first is loss of wages for the time between her leaving her employment and obtaining new employment. This is two weeks. I have found that the reasons why Ms Font did not return to work were because she could not complete the Friedman and in those circumstances there is no causal nexus between the breaches of the SDA and the loss sustained. This would apply equally to the second claim which is that if she had remained in her employment until 14 February 2001 she would have received a bonus in the order of $4,000, that was an annual bonus based upon her productivity.
The final claim for special damage relates to $100 for the Christmas bonus. I have already stated that I am not satisfied that there was any Christmas bonus paid or that the applicant missed out because of her allegations of sexual harassment.
The applicant claims interest at the Federal Court rate (Gilroy v Angelov (2000) 181 ALR 57). I order that the respondent pay the applicant interest on the damages awarded at the appropriate Federal Court rates from 1 February 2001 to the date of judgment.
The applicant seeks a further order requiring the first respondent to implement appropriate policies and training. I do not think that such an order is necessary. I have no doubt that these findings will be taken seriously by the first respondent who will see the benefit of voluntarily putting in place an appropriate policy and ensuring that their members of staff have it continually in the forefront of their minds.
Costs
In view of the fact that the applicant has not succeeded in all of her claims and has not succeeded against the third respondent I will allow the parties to be heard on costs at a date to be arranged with my Associate. However, it is appropriate that I should express my preliminary views in case this should shorten any further hearing. In regard to the costs of the third respondent I note that she was represented by the same legal team that represented the first and second respondents. I would doubt that the costs of representing her significantly impacted on the costs of the whole. I would propose to assess those costs in accordance with Part 21 rule 21.02(2)(a) of the Federal Magistrates Court Rules in the sum of $3,000.
The applicant did not succeed in her claim for victimisation. This took up a significant amount of time. In order to compensate the respondents for this I would propose to limit the costs otherwise payable by the respondents to the applicant to 60% of those costs. I am satisfied that this is an appropriate case for the employment of an advocate pursuant to Part 21 rule 21.15 of the Federal Magistrates Court Rules.
I certify that the preceding one hundred and seventy-three (173) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date:
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