Gabryelczyk v Hundt

[2005] NSWADT 94

CITATION:	Gabryelczyk v Hundt [2005] NSWADT 94
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Natasha Gabryelczyk on behalf of Jake Gabryelczyk (a minor) RESPONDENT Richard Hundt
FILE NUMBER:	031166
HEARING DATES:	8/11/2004 & 10/11/2004
SUBMISSIONS CLOSED:	11/18/2004
DATE OF DECISION:	05/03/2005
BEFORE:	Grotte E - Judicial Member; Clayton S - Non Judicial Member; Hiffernan N - Non Judicial Member
APPLICATION:	Age Discrimination - In work - Race Discrimination - In work - Sexual Harassment - In workplace
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Anti-Discrimination Act 1977
CASES CITED:	Briginshaw v Briginshaw (1938) 60 CLR 336 Bonella v Wollongong City Council [2001] NSWADT 194 Sivananthan v Commissioner of Police, NSW Police Service [2001] NSWADT 44 Hall v Sheiban (1985) ALR 503 Cleary Bros (Bombo) Pty Ltd v Cvetkovski (EOD) [2001] NSWADTAP 10 Gallagher v NSW Police Service [1998] NSWEOT
REPRESENTATION:	APPLICANT B Kerr, barrister RESPONDENT No Appearance
ORDERS:	1. Mr Hundt is to pay to the Complainants within 21 days $15286; 2. No Order as to Costs

Introduction

1 On 16 April 2003 the President of the Anti-Discrimination Board (ADB) received a complaint under the New South Wales Anti-Discrimination Act 1977 (ADA) from Natasha Gabryelczyk (the complainant) on behalf of her son, Jake Gabryelczyk, a minor, alleging discrimination on the ground of race, age, victimisation and sexual harassment in employment. The complaint of the alleged discrimination was made against her son’s former employer and an employee of that employer who was Jake’s supervisor, Richard Hundt.

2 On 16 December 2003 the complaint was referred to the Equal Opportunity Division of the Administrative Decisions Tribunal (ADT) as the President of the ADB formed the view that the complaint was not capable of being resolved through conciliation.

3 A case conference was held on 29 January 2004 to ascertain the readiness of the parties to proceed with the complaint, to explore the possibility of mediation, to set a timetable for the proceedings and to discuss other procedural and substantive issues regarding the complaint. At this case conference there were appearances for the complainant and for the employer but neither Mr Hundt nor his representative appeared. On that day the complaint was set down for a mediation on 5 April 2004 and a timetable was set for the proceedings should the mediation not resolve the complaint. It was anticipated that if the complaint did not resolve at the mediation the matter would proceed to a hearing on 31 May 2004 and 1 June 2004. Following the case conference on 29 January 2004 the Tribunal wrote to Mr Hundt informing him of the outcome of that case conference and of the date of the proposed mediation.

4 On 24 March 2004 the complainant’s solicitors informed the Tribunal that the complaint against the employer had been resolved but that the complainant wished to proceed against Mr Hundt. The mediation of 5 April 2004 was vacated because there had been no communication between Mr Hundt and the complainant’s solicitors and because he had not appeared at the first case conference. A second case conference was set down for 5 May 2004. The Tribunal notified Mr Hundt of this case conference by registered post at his last known address. Neither Mr Hundt nor any representative for him appeared at the Tribunal on that day nor did he contact the Tribunal to explain his failure to attend. On that day the complainant was directed by the Tribunal to file documentation and serve it on Mr Hundt and the complaint was set down for a hearing on 5 July 2004. The Tribunal wrote to Mr Hundt, the letter being sent by registered post to his last known address informing him of the hearing date. The Tribunal’s letter informed Mr Hundt that he was required to attend the hearing of the complaint and that if he failed to attend the hearing an order could be made against him in his absence.

5 Mr Hundt attended the Tribunal in person on 5 July 2004 having received the correspondence from the Tribunal. On that day he informed the Tribunal that he wished to defend the allegations of discrimination and that he intended to seek legal advice which he had not yet done. He requested an adjournment. Despite an objection to by the complainant’s representatives an adjournment was granted until 6 September 2004 on the basis that Mr Hundt should be afforded the opportunity to obtain legal representation and to put his case to the Tribunal. A new timetable was set for the proceedings.

6 On 6 September 2004 Mr Hundt did not attend the Tribunal but he informed the Tribunal by telephone that he was too ill to attend the hearing. He forwarded to the Tribunal by facsimile a medical certificate from Dr P Klemes of the Warriewood Medical Centre stating that “Mr Hundt is unfit for his normal work from 6 September 2004 to 7 September 2004”. The hearing was adjourned until 20 October 2004.

7 On 20 October 2004 Mr Hundt did not attend the hearing. Mr Hundt contacted the Tribunal on the morning of the hearing to inform the Tribunal that he would not be attending because he had only the day before received the letter from the Tribunal informing him of the date of the hearing. The Tribunal noted that the Tribunal’s letter had been sent to Mr Hundt’s usual address by registered post on 6 September 2004 but was returned to the Tribunal unopened on 18 October 2004. The Tribunal then sent an express post letter to the same address on that day. The Tribunal also noted that no Points of Defence had been filed by Mr Hundt in accordance with the Directions made by the Tribunal. The Tribunal informed Mr Hundt that it would be proceeding to hear the complaint that day. The Tribunal had formed the view that Mr Hundt was not genuine in his claim that he wished to defend the complaint and it decided to proceed to hear and determine the complaint without doing anything more to enable Mr Hundt to appear before it. The Tribunal was satisfied that Mr Hundt had been given ample opportunity to put his case for consideration by the Tribunal.

The Complaint and Claims made by Jake Gabryelczyk and Natasha Gabryelczyk, his mother

8 It was claimed that Jake Gabryelczyk is of Polish extraction and was born on 9 January 1987. It was claimed that on 28 January 2003 he was aged 16 years when he commenced employment as an apprentice electrician with his former employer. He was at that stage the youngest apprenticed employee of his former employer.

9 It was claimed that he was placed under the control and supervision of Mr Richard Hundt, a senior electrician employed by Mr Gabryelczyk’s former employer. It was claimed that Mr Hundt who was at that time 38 years of age, was at all material times his supervisor on a day-to-day basis and was responsible for the decisions relating to and affecting his employment.

10 It was claimed that Jake was paid $13676 plus withholding tax per annum and his weekly earnings were $263 gross for a 38 hour week. It was claimed that he was also paid on average about $70 per week for regular overtime worked and travelling time so that his gross weekly wage was $333.

11 It was claimed that Richard Hundt subjected him to bullying, discrimination, physical and sexual abuse, harassment, name-calling, theft and unlawful assault.

12 It was claimed that in early February 2003 he and Mr Hundt were sitting in a work vehicle of his former employer when Mr Hundt leant over and struck Mr Gabryelczyk in the face with his car keys resulting in a scratch on his face. Mr Gabryelczyk’s mother telephoned Mr Hundt that evening to complain about the scratch on her son’s face. Mrs Gabryelczyk claims that Mr Hundt told her that he meant to stab Jake in the stomach with his keys but that he struggled and that “Jake is a tough kid and I am having trouble breaking him”. Mrs Gabryelczyk claims that Mr Hundt told her that it would not happen again.

13 It was claimed that on or about 11 or 12 February 2003 while they were in the work vehicle Mr Hundt tried to touch his scrotum. It was claimed that Jake reacted by kicking out his leg and striking Mr Hundt in the face. It was claimed that Mr Hundt said words to the effect of “If I get a black eye I will punch you in the face and give you one because I am going out tonight with my wife”.

14 It was claimed that between about 12 and 15 February 2003 Mr Hundt struck him on the knee with a pair of pliers while travelling in the work vehicle.

15 It was claimed that on or about 17 and 21 February 2003 Mr Hundt stubbed out a lit cigarette on his arm. He claims that on or about 24 or 25 February 2003 Mr Hundt held a red hot cigarette lighter to the right hand side of his neck causing a third degree burn.

16 It was claimed that between about 25 and 28 February 2003 in the Canterbury Leagues Club car park he was chased through the car park and hog tied by Mr Hundt and two other employees and that his mobile telephone was damaged in the incident beyond repair.

17 It was claimed that on 12 March 2003 he was forced to work from 7:00 am to 1:30 am the following morning without a break being 19 hours in total with only a 2 hour break for the whole shift.

18 It was claimed that on 18 March 2003 Mr Hundt demanded that Mr Gabryelczyk share his lunch with Mr Hundt following which Mr Hundt flicked a lit cigarette into Mr Gabryelczyk’s eye.

19 It was claimed that between 11 February 2003 and 23 March 2003 Mr Hundt stole and ate Mr Gabryelczyk’s lunch on a regular basis. It was claimed that between these dates Mr Hundt called Jake names including “spastic”, “fat pig”, “wog”, “wog boy”, “little fuckwit”, “retard”, “ball licker”, ”fucking idiot”, “young cunt”, “fat wog”, “drugo”, “homosexual”, “cock sucker”, “dickhead” and “little fuckhead”. It was claimed that between these dates Mr Hundt regularly said to him “give me head” and touched his crotch. It was claimed that between these dates Jake regularly complained to Mr Hundt about his behaviour but Mr Hundt told him words to the effect “its all character building”.

20 It was claimed that during the first week of his employment Jake was travelling with Mr Hundt in a work vehicle when Mr Hundt stopped outside a bottle shop and asked him if he wanted a beer. When Jake refused, Mr Hundt said words to the effect of “I’ll make you into an alcoholic by the end of year”.

21 On 23 March 2003 Jake resigned from his employment. Following his resignation Jake was telephoned by Mr Hundt. It was claimed that Mr Hundt asked him if he was returning to work. When Jake said that he did not want to spend the next three years with Mr Hundt, it is asserted that Mr Hundt said words to the effect “”You are a fuckwit if you don’t come back and get your licence”.

22 It was asserted that, as a result of the treatment Jake received from Mr Hundt, he suffered loss and damage. It was asserted that he suffered loss of income from the date of his resignation, loss of career prospects, pain and suffering, a burn scar and injury to his feelings. It was asserted that Jake suffered distress, insult, anxiety and mental suffering as well as depression and post-traumatic stress disorder. Damages of $40000 for each complaint, an apology and costs have been claimed.

23 It was asserted that Jake, at the time of his resignation, he was earning $333 per week which is based on an hourly rate of $6.93 for 38 hours plus an average of $70 per week for overtime and travelling time.

24 The following documents were relied upon in support of the complaint:

(i) Workcover certificate dated 14 April 2003 from Dr C J Ward in which Dr Ward stated that Jake suffered from multiple burns and soft tissue injuries caused by Mr Hundt. The dates of injury are 11, 12, 15, 17, 21, 25 and 28 February 2003 and 10, 11 and 18 March 2003.

(ii) Photographs of a scar on Jake’s neck.

(iii) Medical Report of Dr C J Ward, general practitioner, dated 20 May 2003 in which Dr Ward stated that he examined Jake on 21 February 2003, 28 February 2003, 14 April 2003, 16 April 2003 and 13 May 2003.

(iv) Medical Report of Dr Peter Anderson, Consultant Psychiatrist, dated 17 February 2004.

25 Dr Ward stated in his medical report that Jake told him that he had been burnt by a cigarette lighter held by his supervisor at work. In his opinion the burn scar had healed but the “psychic scar remains”. He was of the view that this was “quite severe”.

26 Dr Anderson stated in his report that he first examined Jake on 27 May 2003 after Jake was referred to him by Dr Ward. He obtained a history of abuse and harassment by Jake’s supervisor including punching in the back, a burn with a cigarette lighter to the neck requiring medical attention and a cigarette butt flicked into his eye causing temporary difficulties with his vision. According to Dr Anderson Jake told him that he wanted to keep his job, and he complained to his boss who “laughed the matter off”. He lost his enthusiasm for his job and felt “down generally”. He resigned from his job after the incident involving the flicking of the cigarette into his eye. He was turned off becoming an electrician. He had become clingy calling his mother about five times a day. He had told his mother about the harassment. She complained and was told that it would stop but it did not. His mood was depressive. He lost enthusiasm for even going out even though previously he had been outgoing. Following his resignation he was without direction. According to Dr Anderson, Jake blamed himself irrationally in that he believed that he should have been able to do something to stop the abuser. Dr Anderson was of the view that Jake had developed diagnosable psychiatric disorders being Post Traumatic Stress Disorder and Depressive Disorder. Dr Anderson reviewed Jake on 13 June 2003, 11 August 2003, 25 August 2003, 8 September 2003 and 16 February 2004. Over that period there were improvements in Jake’s mood and sleep and as at 8 September 2003 Dr Anderson expressed the opinion that Jake was fit to do some small amount of part-time work to increase in a graded fashion working locally as a mechanic. Since that time he has worked casually in gyprocking, building and plumbing. Dr Anderson was of the view that Jake’s prognosis was reasonable although he remained vulnerable with distressing thoughts about the workplace events.

27 Both Jake Gabryelczyk and his mother, Natasha Gabryelczyk gave oral evidence to the Tribunal. Both witnesses confirmed what was contained in the written complaint and the statements before the Tribunal. In oral evidence Jake told the Tribunal that when Mr Hundt asked him to “give him head” he at first thought that he was seriously making sexual advances because Mr Hundt had previously touched his scrotum but he said that he later thought that he was a joking. He said however that Mr Hundt’s sexual comments made him feel awkward and upset and that he did not want to turn up for work. He said that he told his mother and his mother spoke with Mr Hundt. He said that this made him feel weak and awkward. He said that even though his mother spoke with Mr Hundt, the behaviour did not stop and he began to feel depressed. Jake said that he was very angry about the burn incident and expressed his anger to Mr Hundt who told him that “this will teach you to share and it is character building”. He said that he resigned on 23 March 2003 but he felt that it was his fault because he should have been able to withstand Mr Hundt’s behaviour. Jake told the Tribunal that he had found employment on 16 August 2004 as an apprentice plumber. He said that he felt better about himself. He said however that if this happened again he would very quickly resort to violence to stop it because he had complained to his boss at the time it was happening but to no avail as the behaviour did not stop.

28 Natasha Gabryelczyk gave oral evidence that was consistent with the complaint and other evidence before the Tribunal. She confirmed the complaints made to her by her son and confirmed that she spoke to Mr Hundt after she had noticed a scratch on her son’s face. She asked Mr Hundt about the scratch and she said that he told her that he had meant to punch her son in the stomach but he had struggled and he missed. He apologised and said that it would not happen again. Mrs Gabryelczyk said that she noticed marks on her son’s legs and arms but the worst one was on his neck. She said that Jake was always complaining that Mr Hundt was stealing his lunch but he did not know what he could say because Mr Hundt was his supervisor. She said that Jake called her one day in tears because Mr Hundt had flicked a cigarette into his eye and it was stinging. That night they called Mr Hundt on his telephone and told him that he was out of control and that Jake did not want to work for him anymore. Mr Hundt again said that it would not happen again. Mrs Gabryelczyk said that Jake told her that Mr Hundt was always forcing him to have a drink after work suggesting that he was weak if he did not want to. She said that Jake was only 16 years of age at the time. She said that he had previously been outgoing and sports oriented but that his outgoing personality was dimmed by these experiences. She said that she thought he was a “bit damaged” and that he had lost his interest in everything. She said that he began to pick up around September 2003 when he obtained his driver’s licence. She said that he had lost his innocence and that he no longer trusted people.

29 It was submitted on behalf of Jake that during the period 23 March 2003 and 16 August 2004 he earned $3500 as a roof tiler for 10 days in October 2003 and in various other positions between October 2003 and 16 August 2004. During this period he received $657.18 in Centrelink payments which is non-refundable, and $6194 in workers compensation benefits which is refundable. He claims that his loss of income for the period is $22052 calculated on $298 nett per week for a period of 74 weeks.

REASONS FOR DECISION

30 It was asserted that Jake had been discriminated against on the ground of race and age in employment and that he was sexually harassed in his employment by Richard Hundt who was an employee of Mr Gabryelczyk’s former employer and his direct supervisor.

31 As no evidence has been put to the Tribunal to the contrary, the Tribunal accepts Jake’s evidence that Mr Richard Hundt was at all relevant times an employee of Jake’s former employer and Jake’s direct supervisor.

32 The Tribunal found Jake to be a truthful and credible witness. His evidence was consistent and corroborated by his mother, Natasha Gabryelczyk, to whom he complained about the conduct and who tried to intervene on his behalf. The Tribunal also found Natasha Gabryelczyk to be a truthful and credible witness. The Tribunal notes that Jake consulted his general practitioner, Dr Ward, for the first time with respect to the conduct of Mr Hundt on 21 February 2003 and this is consistent with his claims. It is noted further that Dr Ward referred Jake to Dr Peter Anderson, a psychiatrist, for treatment as a result of the conduct. Accordingly, the Tribunal is of the view that, even in the absence of any evidence from Mr Hundt, there is sufficient evidence before it to accept Jake’s account of the conduct he was subjected to by Mr Hundt between 28 January 2003 and 23 March 2003 in the course of his employment with his former employer.

33 The question the Tribunal must also consider is whether the conduct complained of contravened any of the provisions of the ADA. It was asserted that some of the conduct engaged in by Mr Hundt was discriminatory on the grounds of age and race. It was also asserted that that some of the conduct engaged in by Mr Hundt amounted to sexual harassment. The Tribunal shall deal with each of these complaints separately.

Sexual Harassment

34 Part 2A of the ADA prohibits sexual harassment in certain areas. Section 22 of the ADA defines sexual harassment as follows:

For the purposes of this Part, a person sexually harasses another person if:

(a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the other person, or

(b) the person engages in other unwelcome conduct of a sexual nature in relation to the other person, in circumstances in which a reasonable person, having regard to all the circumstances , would have anticipated that the other person would be

(c) offended, humiliated or intimidated.

35 Section 22B(2) of the ADA makes it “…unlawful for an employee to sexually harass a fellow employee or a person who is seeking employment with the same employer” and section 22B(4) makes it “…unlawful for a workplace participant to sexually harass another workplace participant at a place that is a workplace of both of those persons”. “Workplace participant” is defined to include an employee.

36 The Tribunal has already found that Jake was an employee of his former employer and that Mr Hundt was also an employee of that same former employer. Therefore Mr Hundt is both an employee and workplace participant for the purposes of section 22B of the ADA.

37 As the Tribunal has already stated earlier in this decision, Mr Hundt was provided with ample opportunity to put his case before the Tribunal for it to be considered but he failed to do so. The Tribunal has also already found that Jake was truthful and credible. In determining whether the complaint of sexual harassment has been established his case, the Tribunal has applied the civil standard of proof which is that of “comfortable satisfaction” as set out in Briginshaw v Briginshaw (1938) 60 CLR 336. The Tribunal has considered the gravity of the allegations and the serious consequences of any adverse findings to Mr Hundt, particularly given that he did not participate in the proceedings.

38 The Tribunal is satisfied that Mr Hundt made requests for sexual favours when he repeatedly asked Jake to “give him head” and that he made sexual advances to Jake when he touched him in the scrotum on or about 11 or 12 February 2003. The Tribunal finds that the name calling such as “young cunt”, “homosexual”, “cocksucker” and “ball licker” amounted to conduct of a sexual nature within the terms of the provisions of section 22A(b) of the ADA.

39 The Tribunal is satisfied that Jake made it clear to Mr Hundt that the requests for sexual favours, the sexual advances and the conduct of a sexual nature were unwelcome. The Tribunal notes in this regard that on 11 or 12 February 2003 when Mr Hundt touched Jake’s scrotum, Jake kicked his leg out and hit Mr Hundt in the face. The Tribunal accepts that he also complained to Mr Hundt about the conduct. The Tribunal accepts Jake’s evidence that, although initially he thought Mr Hundt was serious but later did no take the advances seriously, he felt awkward, uncomfortable, weak and upset by the name calling and the repeated requests to ”give him head”.

40 The Tribunal finds therefore on a balance of probabilities that Jake was subjected to repeated acts of sexual harassment in employment by Mr Hundt, a fellow employee, workplace participant and his supervisor. The Tribunal finds that the conduct was of a sexual nature and unwelcome and was such that a reasonable person would have anticipated that Jake, a 16 year old apprentice in his first job, would have been offended, humiliated and intimidated.

41 The Tribunal finds that this complaint has been substantiated.

Racial Discrimination

42 Section 8 of the ADA prohibits discrimination by an employer against an employee on the ground of race “in the terms or conditions of employment which the employer affords the employee...or subjecting the employee to any other detriment”.

43 Section 7 of the ADA sets out what constitutes discrimination on the ground of race. Section 7 provides that a person discriminates if the perpetrator “treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of a different race”.

44 The sections of the ADA which prohibit discrimination on the ground of race are limited to employers and do not extend to employees. Section 53 of the ADA only operates to inculpate the principal or employer for acts done by an agent or employee. An employer or principal can therefore be found to be liable for the acts of an agent or employee because of the employer’s duty of care to the complainant and because of the employer’s responsibility for the acts of another employee.

45 In the circumstances of this particular case the complainant separately resolved the complaint against the former employer and the Tribunal has not been asked to make any findings with respect to any liability attaching to the former employer.

46 Accordingly the Tribunal finds that the complaint of discrimination on the ground of race has not been substantiated and is dismissed.

Age discrimination

47 Section 49ZYB(2) of the ADA makes it unlawful for an employer to discriminate against an employee in the terms and conditions of employment that are afforded to the employee or subjecting the employee to any other detriment.

48 Section 49ZYA states that “a person discriminates against another person on the ground of age if, on the ground of the aggrieved person’s age the perpetrator treats the aggrieved person less favourably than in the same or in circumstances which are not materially different, the perpetrator treats or would treat a person who is not of that age or age group”. Section 49ZYA(2) provides that “something is done on the ground of a person’s age if it is done on the ground of the person’s age or age group, a characteristic that appertains generally to persons who are that age or age group or a characteristic that is generally imputed to persons who are of that age or age group”.

49 The sections of the ADA which prohibit discrimination on the ground of age are limited to employers and do not extend to employees. Section 53 of the ADA only operates to inculpate the principal or employer for acts done by an agent or employee. An employer or principal can therefore be found to be liable for the acts of an agent or employee because of the employer’s duty of care to the complainant and because of the employer’s responsibility for the acts of another employee.

50 In the circumstances of this particular case the complainant separately resolved the complaint against the former employer and the Tribunal has not been asked to make any findings with respect to any liability attaching to the former employer.

51 Accordingly the Tribunal finds that the complaint of discrimination on the ground of age has not been substantiated and is dismissed.

Relief

52 Damages for economic loss and non-economic loss were sought. Section 113(1)(i) of the ADA allows the Tribunal to order Mr Hundt to pay to the complainant damages not exceeding $40000 by way of compensation for any loss or damage suffered by reason of Mr Hundt’s conduct.

53 General damages for non-economic loss cover matters such as hurt, humiliation and injury to feelings. As acknowledged by Wilcox J in Hall –v- Sheiban (1985) ALR 503 at 543, the task of determining the appropriate level of damages in a case of unlawful discrimination is difficult:

….damages for such matters as injury to feelings, distress, humiliation and the effect on the complainant’s relationships with other people are not susceptible to mathematical calculation…To ignore such items of damage simply because of the impossibility of demonstrating the correctness of any particular figure would be to visit an injustice upon the complainant by failing to grant relief in respect of a proved item of damage.

54 It was asserted that Jake was physically hurt in the case of the burn to his neck and the eye incident and that he was psychologically adversely affected by the acts of Mr Hundt. In support of these assertions, Jake relied on medical evidence from his general practitioner, Dr Ward and his treating psychiatrist, Dr Anderson. Dr Anderson was of the view that Jake had developed a diagnosable psychiatric disorder being Post Traumatic Stress Disorder and a Depressive Disorder as a result of the acts of Mr Hundt. He was of the view that although the prognosis was reasonable, Jake remained vulnerable with distressing thoughts about the workplace incidents. Photographs of the burn to his neck were produced to the Tribunal and Jake sought medical assistance at the time. His claims with respect to the burn and the eye incident were corroborated by his mother.

55 This evidence is uncontested and as stated earlier in this decision the Tribunal found Jake and his mother to be credible and honest witnesses. The Tribunal accepts that Jake suffered both physical injuries and emotional and psychiatric sequelae from the acts of Mr Hundt.

56 Having said that however, the Tribunal is limited to assessing damages resulting from the substantiated complaint which is limited to the acts of sexual harassment. Whilst it is noted that the physical injuries resolved with no ongoing problems, the Tribunal accepts that Jake suffered Post Traumatic Stress Disorder as a result of all the acts of Mr Hundt which manifested itself as lack of interest in his friendships, for his work, for his recreational interests, lack of motivation and some personality change as described by his mother. Although it is noted that the condition substantially resolved by September 2003 when according to his mother he was able to obtain his probationary licence, he continues to be vulnerable to distressing thoughts about the workplace incidents and he remains as his mother described “a bit damaged”. In this regard it is noted by the Tribunal that Jake stated that he would more readily resort to violence should a similar situation arise in the future.

57 It is a difficult task for the Tribunal to tease out what sequelae were as a result of the acts of sexual harassment. The Tribunal has decided to use common sense to approach this difficulty. It is the Tribunal’s view that the unlawful sexual harassment conduct played a part in the development of the Post Traumatic Stress Disorder and was in part responsible for Jake’s lack of motivation, interest in his previous recreational activities and his inability to find employment until August 2004. The Tribunal is satisfied that as a result of the acts of sexual harassment, he sustained injury to his feelings, distress and humiliation as well as a psychological injury which although largely resolved continues to adversely impact on him.

58 Accordingly, the Tribunal is of the view that the following award of general damages is appropriate:

(i) Sexual Harassment - $10,000

59 Special damages for economic loss were also sought. What is critical here is whether Jake suffered any economic loss as a result of the sexual harassment perpetrated by Mr Hundt. It was asserted by Jake that he resigned because his work situation became intolerable because of the way he was being treated by Mr Hundt. In the absence of any evidence to the contrary the Tribunal accepts Jake’s assertions in this regard. His assertions have been corroborated by his mother and he has medical evidence to support his claims. It is the Tribunal’s view that had Jake not been subjected to the acts of discrimination by Mr Hundt he would have continued in his employment as an apprentice electrician and not resigned. Had Jake continued in his employment with his former employer, he would have earnt $22052 nett ($298 per week nett x 74 weeks) for the period of his unemployment until he was able to find another position as an apprentice plumber. The Tribunal notes that any workers compensation payments made during this period will need to be refunded (amounting to $6194) although it is also noted that he will not have to refund the Centrelink payments amounting to $657.18.

60 As stated earlier in this decision, what part of the economic loss is due to the sexual harassment? Again the Tribunal has decided to use common sense and is of the view that one third of the economic loss is an appropriate amount to award in this case. Accordingly, the Tribunal awards one third of ($22052 - $6194 – repayment workers compensation) which is calculated at $5286.

61 Accordingly the Tribunal awards special damages of $5286.

Costs

62 The Complainant’s solicitors made an application seeking a costs order against Mr Hundt pursuant to section 114(2) of the ADA. It was submitted that the delay in the proceedings and the adjournments were caused by Mr Hundt. It was submitted that Mr Hundt did not participate in the process or attend the hearing dates despite indicating that he wanted to defend the complaint, and did not file any Points of Defence in accordance with Directions made by the Tribunal. It was further submitted that Mr Hundt was given every opportunity to put his case to the Tribunal and was assisted a great deal by the Tribunal.

63 Section 114(1) of the ADA provides that each party to an inquiry shall pay his or her own costs. However, section 114(2) grants the Tribunal a discretion to “make such orders as it thinks fit” where it “is of the opinion in a particular case that there are circumstances that justify it doing so”.

64 This Tribunal agrees with the observations made by the Appeal

Panel in Cleary Bros (Bombo) Pty Ltd v Cvetkovski (EOD) [2001] NSWADTAP 10at [63] – [64] that section 114 of the ADA does not prescribe a test to be applied but creates a presumption in subsection (1) and a discretion in subsection (2). The Appeal Panel in that matter cautioned that the discretion must be exercised judicially and no authority or rule can determine whether in any particular case an order should be made. The Appeal Panel in Cleary’s case followed the principles set out in Gallagher v NSW Police Service [1998] NSWEOT where it was stated that section 114(1) requires that in the normal course an award for costs should not be made and that “there has to be something over and beyond the normal course of circumstances to justify the making of an award for costs”.

65 Although the Tribunal has sympathy for the Complainants in this matter and while it is acknowledged that the delays were caused by Mr Hundt, it is of the view that there are not sufficient circumstances in this particular case to justify the making of an order for costs other than as required by section 114(1). One of the delays was caused by Mr Hundt’s request to be allowed to seek legal representation and to defend the complaint and another delay was caused by his failure to appear due to illness. Mr Hundt’s failure to appear and defend his case, although he stated that he would, is not sufficient in the Tribunal’s view to constitute special circumstances to justify an order for costs against him.

66 The Tribunal makes the following orders:

(i) Mr Hundt is to pay to the Complainants within 21 days of the date of this decision $15286.

(ii) No order as to costs.