Green v State of Queensland, Brooker and Keating
[2017] QCAT 8
•10 January 2017
| CITATION: | Green v State of Queensland, Brooker and Keating [2017] QCAT 008 |
| PARTIES: | Shane Green (Applicant) |
| v | |
| State of Queensland (Department of Education and Training) Norman Brooker Vicki Keating | |
| APPLICATION NUMBER: | ADL031-15 |
| MATTER TYPE: | Anti-discrimination matters |
| HEARING DATE: | 26 to 29 September 2016 |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Gordon |
| DELIVERED ON: | 10 January 2017 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Shane Green was subjected to sexual harassment by Norman Brooker and Vicki Keating on 24 September 2014. 2. Shane Green was subjected to sexual harassment by Norman Brooker on various dates after 24 September 2014. 3. Shane Green was victimised by Norman Brooker on 3 and 16 March 2015 and on 22 June 2015. 4. The State of Queensland is vicariously liable for the above acts. 5. As compensation Norman Brooker and the State of Queensland shall pay to Shane Green the sum of $156,051 within 42 days of the date of the order. 6. As compensation Vicki Keating and the State of Queensland shall pay to Shane Green the sum of $78,025 within 42 days of the date of the order. 7. Under these orders, the total compensation Shane Green is entitled to is $156,051. 8. The non publication order made on 1 March 2016 under section 191(1) of the Anti-Discrimination Act 1991 is confirmed. That order provided that the identities of certain persons named in the order shall not be disclosed. That order continued until the expiry of one year after the final conclusion of this claim in QCAT (and any appeal). That order did not prohibit the disclosure of the identity of any person named in these reasons. |
| CATCHWORDS: | HUMAN RIGHTS – DISCRIMINATION – GROUNDS OF DISCRIMINATION - SEX DISCRIMINATION – SEXUAL HARASSMENT – where co-workers set up a sexually explicit prank – whether intention or effect was to humiliate the Applicant – whether events were within section 119 of the Anti-Discrimination Act 1991 (Qld) (sexual harassment) HUMAN RIGHTS – DISCRIMINATION – GROUNDS OF DISCRIMINATION - SEX DISCRIMINATION – OTHER MATTERS – where there were alleged detrimental acts after the complaint – whether they were acts of victimisation DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – REMOTENESS AND CAUSATION – NEW INTERVENING FORCE – whether Applicant feigned his reaction to the prank or grossly exaggerated the effect of the events upon him DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – NON-PECUNIARY DAMAGE – whether the Tribunal should award compensation at a higher level because of Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82 – whether the Tribunal should be influenced by the award in that case – whether interest should be added to the award for non-financial loss PROCEDURE – PERSONAL INJURY OR FATAL ACCIDENTS PROCEEDINGS -STATEMENT OF LOSS AND DAMAGES – where the Tribunal ordered the Respondents to file a Counter Schedule of Loss - where a number of issues of dispute were raised for the first time in final submissions – whether they should have been identified in the Counter Schedule of Loss Anti-Discrimination Act 1991 (Qld) s 118, s 119, s 120, s 129, s 130, s 204, s 209. Zanella v Carroll’s Auto Repairs Pty Ltd & anor [2001] NSWADT 220 considered |
APPEARANCES:
| APPLICANT: | Lisa Willson (counsel) instructed by Parker Simmonds Solicitors. |
| RESPONDENT: | Mark Healey (counsel at the hearing). Ms K Mellifont QC and Mark Healey for subsequent written submissions, both instructed by Crown Law. |
REASONS FOR DECISION
This is a claim brought by Shane Green in which he alleges that he was subjected to sexual harassment by two fellow employees, Norman Brooker and Vicki Keating, and that after making a complaint he was victimised by Norman Brooker. The claim is also brought against the State of Queensland as their employer.
The circumstances of the sexual harassment are unusual. In a nutshell, Mr Green was subjected to a sexually explicit prank in the school where he was employed by the State of Queensland as a cleaner. Mr Brooker the groundsman, with some prior assistance from one of the cleaners Ms Keating, prepared the staff room so that it portrayed the aftermath of a sex romp. The portrayal was intended to prank Mr Green who was one of a team of three cleaners who would be responsible for cleaning the room. Mr Green was led to believe that the sex romp really happened and that two named staff members at the school had been involved.
It is said that in these circumstances, the preparation of the room together with certain things said to Mr Green and the disclosure of the prank to others, were things intended to humiliate Mr Green or would reasonably have that effect, and therefore amount to sexual harassment towards him.
It is said that as a result of these events Mr Green suffered psychological consequences. After he complained to the Anti-Discrimination Commission Queensland about these events, it is alleged that because he had made the complaint, Mr Brooker victimised Mr Green by certain detrimental actions towards him, and his family.
Although in the sexual harassment claim there is no dispute between the parties about the basic facts, some important details are in dispute and it is denied by the Respondents that what happened amounted to sexual harassment.
Some of the facts alleged by Mr Green in the victimisation claim are in dispute, but in any case it is denied that the events amount to victimisation.
At the heart of the Respondents’ case is the suggestion that Mr Green feigned his reaction to the prank in order to obtain compensation or at least that he grossly exaggerated any symptoms arising from the prank. In support of this case, it is said that Mr Green has been inconsistent in his reporting of events and his symptoms, and that there is inconsistency between his reported symptoms and known facts. It is also said that he has in the past made comments and acted in such a way as demonstrates a tendency to wish to maximise compensation in his favour. The Respondents’ case was supported by the opinion of a psychiatrist who said that Mr Green was malingering. Mr Green received support from his treating psychologist and psychiatrist who said that he suffered genuine symptoms by reason of the prank.
Should liability be found there is a fundamental disagreement between the parties about the correct level of the award for non-financial loss in the light of Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82 and there are a number of issues to be resolved on the question of financial loss.
How the complaint reached the Tribunal
Sexual harassment and victimisation are contraventions of the Anti-Discrimination Act 1991 (Qld), and are justiciable in the Tribunal if referred to the Tribunal by the Anti-Discrimination Commission Queensland (ADCQ) following a complaint.[1] Mr Green complained to ADCQ about the sexual harassment on 21 November 2014. The ADCQ attempted to resolve the matter in conciliation. This was unsuccessful, and so Mr Green sought referral of the sexual harassment complaint to the Tribunal which he was entitled to do under section 164A of the Act. The referral was received by the Tribunal on 1 April 2015.
[1]When the relevant part of the Industrial Relations Act 2016 is in force, however, contraventions of the Act in work related matters will be referred to the Queensland Industrial Relations Commission.
Meanwhile, there had been two alleged incidents of victimisation on 3 and 16 March 2015. After the referral there was another further alleged incident of victimisation on 22 June 2015. On the application of Mr Green, on 1 March 2016 the Tribunal allowed these allegations to be added to his complaint by amendment.[2]
[2]This was under section 178 of the Anti-Discrimination Act.
The Tribunal is responsible for deciding the matter and can make a number of different types of orders if it finds that there was a contravention.[3]
[3]The orders which can be made are set out in section 209 of the Anti-Discrimination Act.
The law which applies to the complaint
Section 118 makes it a contravention of the Act sexually to harass another person, and section 119, with 120, define sexual harassment.
118 Sexual harassment
A person must not sexually harass another person.119 Meaning of sexual harassment
Sexual harassment happens if a person—(a) subjects another person to an unsolicited act of physical intimacy; or
(b) makes an unsolicited demand or request (whether directly or by implication) for sexual favours from the other person; or
(c) makes a remark with sexual connotations relating to the other person; or
(d) engages in any other unwelcome conduct of a sexual nature in relation to the other person;
and the person engaging in the conduct described in paragraphs (a), (b), (c) or (d) does so—
(e) with the intention of offending, humiliating or intimidating the other person; or
(f) in circumstances where a reasonable person would have anticipated the possibility that the other person would be offended, humiliated or intimidated by the conduct.
Examples of subsection (1)(a)—
• physical contact such as patting, pinching or touching in a sexual way
• unnecessary familiarity such as deliberately brushing against a person
Example of subsection (1)(b)—
sexual propositions
Examples of subsection (1)(c)—
• unwelcome and uncalled for remarks or insinuations about a person’s sex or private life
• suggestive comments about a person’s appearance or body
Examples of subsection (1)(d)—
• offensive telephone calls
• indecent exposure
120 Meaning of relevant circumstances
The circumstances that are relevant in determining whether a reasonable person would have anticipated the possibility that the other person would be offended, humiliated or intimidated by the conduct include—(a) the sex of the other person; and
(b) the age of the other person; and
(c) the race of the other person; and
(d) any impairment that the other person has; and
(e) the relationship between the other person and the person engaging in the conduct; and
(f) any other circumstance of the other person.
In this case, Ms Willson on Mr Green’s behalf submits that the facts of the case come within paragraphs (c) or (d) of section 119, and that either or both of paragraphs (e) or (f) of section 119 apply.
What is conduct “relating to” the complainant?
It is notable that both paragraph (c) (dealing with remarks with sexual connotations) and (d) (unwelcome conduct of a sexual nature) require that the conduct must “relate to” the complainant. Submissions have been made by both sides about the meaning of this.
The requirement that the conduct must relate to the complainant means that there must be some connection between the offensive, humiliating and intimidating conduct and the complainant other than simply that the complainant witnessed the conduct. This means therefore that the publication of offensive humiliating and intimidating sexual material to the general public is not itself sexual harassment. It only becomes sexual harassment if it relates to the complainant.
In Queensland, this limit to the operation of section 119 is important because unlike other prohibitions in the Act, a contravention of section 119 stands by itself, and it is not necessary for the complainant to prove that it happened in an “area” such as a work area or in the provision of services.
The requirement that the conduct relates to the complainant is common in other jurisdictions and has been considered in a number of reported cases.
In Zanella v Carroll’s Auto Repairs Pty Ltd & anor [2001] NSWADT 220, the NSW Administrative Decisions Tribunal dealt with a sexual harassment claim brought by a customer of car repairers. She had been offended by the depiction of two naked females on a calendar displayed in the workshop when she took in her car for inspection. The Tribunal stated that:-
The words "in relation to (the person)", as they are commonly used, indicate a connection with the person, being in reference to the person or being with regard to the person.
The Tribunal found no evidence that the calendar was displayed because of the customer’s attendance, or that anyone directed her attention to it. She was not a frequent visitor to the premises as an employee would be. There was no connection with her other than having a common gender with the persons depicted in the calendar. In the circumstances the calendar was not posted in relation to her.
In Carter v Linuki Pty Ltd trading as Aussie Hire & Fitzgerald (EOD) [2005] NSWADTAP 40 the NSW Administrative Decisions Tribunal Appeal Panel approved the test applied in Zanella and also approved the following test applied by the Tribunal whose decision was the subject of the appeal:-[4]
The phrase encompasses conduct that is more remote from the applicant than if the word "towards" had been used, but it nevertheless requires a connection with the applicant, or that the conduct was done with the applicant in mind. Thus the phrase could encompass a complainant’s being aware of something of a sexual nature a person does or writes or says about the complainant to a third person, but not something of a sexual nature a person does or writes or says, unrelated to the complainant, to a third person.
[4]At paragraphs [8] to [16].
It may be dangerous to say that these tests provide a comprehensive restatement of the statutory requirement that the conduct relates to the complainant because the circumstances which could arise are many and various.
I am mindful here of the observations of McHugh J in Marshall v Director General, Department of Transport (2001) 205 CLR 603 at [62] having decided that the text of an English statute was so similar to the text of the Queensland statute under consideration that the English cases construing the English statute could not be distinguished:-
But that does not mean that the courts of Queensland, when construing the legislation of that State, should slavishly follow judicial decisions of the courts of another jurisdiction in respect of similar or even identical legislation. The duty of courts, when construing legislation, is to give effect to the purpose of the legislation. The primary guide to understanding that purpose is the natural and ordinary meaning of the words of the legislation. Judicial decisions on similar or identical legislation in other jurisdictions are guides to, but cannot control, the meaning of legislation in the court's jurisdiction. Judicial decisions are not substitutes for the text of legislation although, by reason of the doctrine of precedent and the hierarchical nature of our court system, particular courts may be bound to apply the decision of a particular court as to the meaning of legislation.
With that in mind I shall construe the requirement that the conduct relates to the complainant in the light of the purpose of the legislation which is clearly to provide a remedy to those who are subjected to sexual harassment rather than to provide a remedy for the world at large offended by sexual conduct.
The Law as to Victimisation
Victimisation is covered by sections 129 and 130 of the Act which provide as follows:-
129 Victimisation
A person must not victimise another person.
Maximum penalty—(a) in the case of an individual—45 penalty units or imprisonment for 3 months; or
(b) in the case of a corporation—170 penalty units.
130 Meaning of victimisation
(1) Victimisation happens if a person (the respondent) does an act, or threatens to do an act, to the detriment of another person (the complainant)—
(a) because the complainant, or a person associated with, or related to, the complainant—
(i) refused to do an act that would amount to a contravention of the Act; or
(ii) in good faith, alleged, or intends to allege that a person committed an act that would amount to a contravention of the Act; or
(iii) is, has been, or intends to be, involved in a proceeding under the Act against any person; or
(b) because the respondent believes that the complainant, or a person associated with, or related to, the complainant is doing, has done, or intends to do one of the things mentioned in paragraph (a)(i), (ii) or (iii).
(2) In this section, a reference to involvement in a proceeding under the Act includes—
(a) making a complaint under the Act and continuing with the complaint, whether by investigation, conciliation, hearing or otherwise; and
(b) involvement in a prosecution for an offence against the Act; and
(c) supplying information and producing documents to a person who is performing a function under the Act; and
(d) appearing as a witness in a proceeding under the Act.
Section 129 makes it a contravention of the Act to victimise another person and section 130 defines victimisation. The provisions (in the context of this case) protect from retaliation those who allege that there has been a contravention of the Act (or who complain of events which would amount to a contravention of the Act). The motive of the perpetrator is important here, because the provisions require that the complainant is subjected to detriment “because” of the allegation made by the complainant.
In this case it is accepted by the Respondents that Mr Green was entitled to the protection of these provisions, having made allegations of sexual harassment in his complaint to ADCQ on 21 November 2014. These allegations were made against the same respondents as were named in the referral to the Tribunal.
Burden of proof
By section 204 of the Act, Mr Green has the burden to prove on the balance of probabilities that the Respondents contravened the Act.
The facts supporting the sexual harassment claim
Mr Green was one of the cleaners at the school. He had started in December 2013 as a casual cleaner, and was placed on a 3 months contract on 4 March 2014, which was then renewed.
The cleaning staff generally joked together on their shifts and engaged in banter. Mr Green was one of the main participants and he liked to joke and feign sparring with people. Mr Brooker the groundsman at the school, also participated in the jokes and banter.
Prior to the events with which I am concerned, Mr Green had played a prank on one of the other cleaners who acted as his supervisor, Ms Keating. This was in mid-2014 when Ms Keating was coming into work in the morning in the dark. She found that glow sticks had been placed around her car park and Mr Green was there guiding her in with other glow sticks. This was his comment on something that had happened the day before when Mr Green thought that Ms Keating had been unable to see something that she should have been able to see.
Mr Brooker was aware of that incident, but also was strongly of the view that Mr Green was responsible when on more than one occasion in mid-September 2014 he found water on the toilet seat that he regularly used. This gave Mr Brooker wet shorts and underpants. Mr Green admits that the toilet seat might have been wet on one occasion, but says that it was because he was late cleaning it that day. He denies that it was intended as a prank on Mr Brooker. There is evidence that Mr Green claimed to be responsible at the time, however. I reconcile the conflicting evidence about this by finding the wetness on the toilet seat was in fact accidental but Mr Green did claim at the time that he had done it on purpose.
Mr Brooker therefore hatched a plan to retaliate against Mr Green for the earlier pranks played by Mr Green. He decided to stage the aftermath of a sex romp in the staff room which would be part of Mr Green’s cleaning round. He decided to do this during school holidays when no staff or students would normally be at the school. He discussed his plan with Ms Keating. Ms Keating offered to provide some underwear to make the scene more realistic. Ms Keating purchased some ladies boxer shorts and a brassiere, and brought in some empty wine bottles. Mr Brooker purchased a packet of condoms.
Before he left work on the Tuesday 23 September 2014 Mr Brooker set up the scene in the staff room. He took a mattress, a pillow and bedclothes from the sick room and placed them on the kitchenette floor. He squirted some cream into the two condoms which he had purchased. He placed one on the ground in the kitchenette area of the room near the mattress and one on a table. He placed the brassiere on the table and the ladies boxer shorts over the back of a chair. He placed a number of empty beer cans and empty beer and wine bottles around. He discharged a number of party poppers around and dropped some of the contents of a packet of chips on the floor.
Mr Green started his cleaning shift with Ms Keating and Mr Omar in the early hours of 24 September 2014 and they went to the staff room and saw the scene which had been set up. Ms Keating took photographs using her mobile phone. She produced these at the hearing, and although Mr Green said they did not accurately depict the scene, on my findings he is mistaken about this.
It is Mr Green’s case that on arrival at the time, Ms Keating said to him “what the hell did you do over there? I have got photos”. Legally, this is an important part of Mr Green’s case because it would mean that Ms Keating accused him of having been involved in the sex romp. It is relied on as an act of sexual harassment in its own right. Ms Keating denies saying this, but accepts that she did ask Mr Green about the scene. In her affidavit her comment was said to be (after Mr Green had done a boxing dance and lifted up his shirt to her) “Never mind that, what about that?” At the hearing she said that she had said “Look what is that over there?”[5]
[5]T4-15 L22.
My finding on this matter is that Ms Keating did say something like “Look what is that over there?” and did not say words which accused Mr Green of having participated in the sex romp. My reason for saying this is that when Mr Brooker discussed the plan with Ms Keating it was not suggested that it would be set up as if Mr Green had been involved. In those circumstances, there would be no reason for her to accuse Mr Green of this. I do think however, that the words used by Ms Keating could easily have been misunderstood by Mr Green as meaning what he now says, and that he is genuinely of the belief that he was accused at the time of being involved.
Another disagreement is whether there was anything on the table legs, on the floor or on the mattress, bedclothes or pillow which could reasonably be taken by Mr Green to be “body fluids”. He is quite certain that he did have to clear up what he thought at the time were such fluids and this upset him. However, Mr Brooker is adamant that the cream was only in the bottom of the condoms and did not spread elsewhere.
In my view there is scope here in the way the scene was set up for some liquid to get on the floor or on the furniture or on the mattress bedclothes or pillow. This liquid could either be dried up cream which came out of the condoms or it could be the liquid used by Mr Brooker to wash out the beer cans and beer and wine bottles. I am also quite certain that Mr Green genuinely believed at the time that he was clearing up body fluids. He did mention to the business services manager when he saw her later about liquid being on the carpet.[6]
[6]The business services manager’s evidence at T4-76 L47, although this does not appear in his statement signed on 14 October 2014 in exhibit SD1.
There is agreement by both sides that on the same day as the prank, Mr Green discussed what had happened with Mr Brooker, and at that time Mr Brooker said things that strongly suggested that it was two named staff members who were rumoured to be having an affair, who were involved in the sex romp. He said that he had seen the male employee concerned in the building which is why he had not set the alarms when he left, and that as he was leaving the building he saw the female employee concerned arriving with a box full of bottles. The reason why Mr Brooker said this was that he and Mr Green had for some time been discussing the rumour that the two staff members at the school were having an affair.
When Mr Brooker said this to Mr Green therefore, the prank was complete, because the sex romp was then attributed to the two staff members who were rumoured to be having an affair.
On hearing this, Mr Green retrieved the brassiere and the boxer shorts which had been put in the rubbish bin and kept them, saying they were “evidence”. Mr Green did this it seems, because he had some idea that he might challenge the participants in the sex romp and complain about it to them.
Mr Green held up the brassiere and said that the female employee referred to would not fit into it.[7] I think this did happen, although Mr Green has forgotten saying this. Generally at that time, Mr Green was outwardly jovial and joking about what had happened.
[7]Paragraph 9 of Ms Keating’s affidavit of 16 May 2016.
There is disagreement about something that is alleged to have happened during the discussion that day between Mr Green and Mr Brooker, which is important for Mr Green’s case. He says that in this discussion, Mr Brooker invited him to sniff the boxer shorts, which he declined to do. This is relied on as an act of sexual harassment in its own right. This is denied by Mr Brooker. The difficulty with this allegation is that it was not mentioned in Mr Green’s statement taken by the business services manager at the school, which he signed.[8] And the business services manager says that Mr Green did not report this to her. However, I do take the view that because of the way the note was created it is quite possible that it omitted material. It was written up by the business services manager after speaking to Mr Green in the morning and then he signed it in the afternoon on his second shift. Once typed up and waiting for his signature, it is likely that Mr Green would not have been as careful to ensure that it contained all material details as a lawyer would have advised him to be. In this respect, there is one known omission from the signed note, accepted by the business services manager (the reference to liquid on the floor which had to be cleared up).
[8]Exhibit SD1.
The invitation to sniff the underwear from Mr Brooker is not something which could have been misunderstood by Mr Green, so it was either said or he is lying about it and it was not said. On balance I think it was said. One reason for this is that, as I have said above, the way Mr Green reacted to the event at the time led Mr Brooker to believe that he was not upset about what he had witnessed (it is notable that Ms Keating was of the same view). In those circumstances, an invitation by Mr Brooker to sniff the underwear that Mr Green had taken an interest in and removed from the bin amongst the other banter on that day is not unlikely.
And since on my finding below, Mr Green was in fact privately genuinely upset and concerned about the affair and the use of school premises, it is more likely that he recalled this comment accurately and Mr Brooker forgot that he said it because for him it was one of a number of throw away remarks. The other possibility, that Mr Green is lying about this, seems less likely.
It is clear that Mr Green did believe that there had been a sex romp in the room, and that he did believe it had probably been between the two staff members who were rumoured to be having an affair.
Others have expressed the view that this is unlikely because the portrayal was not realistic and having a sex romp in that particular room would not realistically happen. Whilst I would agree that a reasonable person in Mr Green’s position might consider a prank to be a possibility from the outset, here Mr Brooker and Ms Keating encouraged him to disregard any such possibility by pretending to him that the scene was real. It can be seen that Mr Green believed the portrayal to be true because at first he was quite preoccupied in speculating who had been involved.
Although Mr Green was outwardly jovial and joking about the sex scene, he had not been happy to clear up the aftermath of what he thought had been a sex romp. Also he was upset and concerned by the possibility that two staff members were having an affair and that they were using school premises for assignations. Mr Green was troubled by the possibility of this being true because one of the staff members concerned was married and he was unhappy about this. Mrs Green, whose evidence I accept, found him to be agitated and unable to sleep well on the evening of the day he cleaned up the scene.[9]
[9]Paragraph 7 of her affidavit of 4 April 2016.
Mr Green’s pre-occupation about the sex romp at that time reached the point that he let it be known that he planned to speak to one of the staff members who he thought had been involved.
Mainly because of this, on the Friday 26 September 2014 Mr Brooker told Mr Green that it had all been a prank.
On hearing this Mr Green fell to his knees. I have considered below in detail what happened on this occasion, when considering whether Mr Green made up his reaction to the events.
Later that day Mr Green took the underwear which he had kept (having removed it from the bin on the day of the prank), and threw it on top of Mr Brooker’s vehicle which he used to move around the school grounds. This was to label Mr Brooker as the culprit. The brassiere stuck on the lights and Mr Brooker drove around like that all day without realising it. This did not happen on 24 September as was suggested in Mr Brooker’s affidavit.[10] This action of Mr Green’s is described in the Respondents’ submissions as “playful” and is relied on as a further demonstration that Mr Green was jovial about matters and did not mind handling the brassiere. However, to my mind it is not inconsistent with Mr Green’s case that he was upset and humiliated by what had happened.
[10]Paragraph 51 of the affidavit of 30 November 2015.
The fourth allegation in Mr Green’s amended contentions said to amount to sexual harassment is that on the day after the incident Mr Brooker told the shop assistants in the local shop about the scene that he had portrayed and told them that Mr Green had been pranked. Mr Green says he saw Mr Brooker coming out of the shop the day after the incident, and as he was walking in. Then the shop staff said to him they had heard what had happened. Later, on 8 October 2014 one of the shop staff told him that she knew it had been a prank. Mr Green blamed Mr Brooker for the shop staff finding out that it was a prank at an early stage in his statement signed on 14 October 2014.[11]
[11]Exhibits SD1.
This is disputed by the Respondents. Mr Brooker’s position from an early stage, in his statement signed on 17 October 2014, was that the shop staff had told him that Mr Green had told them about the prank the day after it happened and had been laughing.[12] In that statement, Mr Brooker does not specifically deny what was said by Mr Green but says that he “doesn’t talk to people outside the school about what has happened at work”.
[12]Exhibit SD2.
Mr Brooker’s written evidence about the local shop is that he did speak to them about the prank but they had already heard about it and they were asking for further details. He recalls that this was on 26 September 2014. He says that he did not go to the shop on 24 or 25 September 2014.[13]
[13]Paragraph 15 of Mr Brooker’s affidavit of 16 May 2016.
In cross-examination he moved away from this position. He was not sure whether he was the first to speak about the prank to the shop staff and explained that at the time he didn’t think the prank was a secret.[14]
[14]T4-46 L40.
It is unclear which of the two men were the first to tell the shop staff about the portrayal of the sex scene. The central issue here for the purposes of the sexual harassment allegation is whether it was Mr Brooker or Mr Green who first informed the shop staff that the scene had been a prank on Mr Green. I think it was Mr Brooker. This is from a combination of Mr Green’s evidence about hearing from the shop staff that they knew that the sex scene had been a prank upon him, and Mr Brooker’s equivocation when giving evidence about this. It is much more likely that Mr Brooker would tell the shop staff about the prank on Mr Green than Mr Green would do so, bearing in mind his deep humiliation about having been pranked.
I make findings of fact about the aftermath of the above events under “the effect of the unlawful conduct on Mr Green” below.
Facts following the ADCQ complaint
On 21 November 2014 Mr Green made a complaint to the Anti-Discrimination Commission Queensland. He named Ms Keating and Mr Brooker and the First Respondent as their employer as responsible for sexual harassment between 24 September and 20 October 2014. These, respectively, were the dates when he first witnessed the sex romp scene and his last day at work.
The ADCQ accepted the claim and sent a copy of it on 17 December 2014 to Mr Brooker. He was required to attend a compulsory conciliation conference at their premises on 11 February 2015. Mr Brooker attended this conference. Ms Keating and also the State of Queensland received the same documents and were required to attend the conference.
The complaint was not resolved in the compulsory conciliation conference.
On 3 March 2015 Mr Green came close to the school to collect his children who were students there. On seeing Mr Green, Mr Brooker raised his hand holding his mobile phone and directed the phone towards Mr Green as though he was taking a photograph or a video of Mr Green. Although Mr Green was some 150 metres away from Mr Brooker when this happened he could see it clearly. Mr Green was upset by this action and felt intimidated by it.
This act is relied on as an act of victimisation.
Just one day prior to this act, Mr Green had signed a notice requiring the ADCQ to refer his complaint to the Tribunal.
On 16 March 2015 Mr Green came close to the school again to collect his children. On seeing Mr Green, Mr Brooker again raised his hand holding his mobile phone and directed the phone towards Mr Green as though he was taking a photograph or a video of Mr Green. Again this happened when the two men were some 150 metres apart.
This act is relied on as an act of victimisation.
On 1 April 2015 the Tribunal received the referral of Mr Green’s complaint from the ADCQ. In the referral Mr Brooker’s contact details were not given, and instead it was said that he was represented by the solicitors acting for the State of Queensland. For this reason the Tribunal did not communicate directly with Mr Brooking.
The solicitors acting for the State of Queensland made an application to the Tribunal on Mr Green’s behalf seeking leave to represent him in the proceedings. That application was signed by Mr Brooker and dated 6 May 2015. On 15 June 2015 the solicitors were sent notice that the Tribunal would hold a compulsory conference in the matter in a date in July. It is clear from the document signed by Mr Brooker dated 6 May 2015 that he was aware that Mr Green’s sexual discrimination complaint had been referred to the Tribunal.
On 22 June 2015 Mrs Green was dropping off the children at the school in the morning when she saw Mr Brooker there. At the request of one of the children she drove on in order to drop them off at another gate. As she did so, she saw Mr Brooker in her rear view mirror raise his middle finger at her.
It is alleged that a little later that morning Mr Brooker drove closely past Mr Green’s two children at the school, stuck his finger at them and spoke to them harshly and laughed at them in an unpleasant way. It is said that this frightened both children and when Mr Green heard about this he was upset by it.
This behaviour towards the children on 22 June 2015 is relied on as an act of victimisation. The act against Mrs Green is not relied on as an act of victimisation.
In his affidavits filed in the Tribunal, Mr Brooker admitted on two occasions raising his phone when he saw Mr Green and pointing it in his direction. He denied approaching the children and acting in the way alleged by Mrs Green on 22 June 2015 although he admitted saying to himself the words “what a joke” and scoffing to himself – this was because when the children saw him they turned round and walked in the other direction as if someone had told them to avoid him. He denied putting his finger up at Mrs Green.
In evidence, Mr Brooker explained that he raised his phone on the two occasions that this happened and made it look as if he was taking photographs to show him that he could take a picture if he wanted. He gave evidence consistent with the terms of his affidavit with respect to the incident on 22 June 2015. He gave the distance between himself and the children when he scoffed to himself as about 20 metres away as he had said in his affidavit, but described it when giving evidence at the distance between the witness chair and the corner of the Tribunal room which is about half that distance.[15]
[15]T4-57 L28.
Mrs Green gave very straightforward evidence about what happened on 22 June 2015. She has been entirely consistent about it in her written material. Her complaints to the school have been modest in tone, and not emotive. I think it is very unlikely that she made up that Mr Brooker raised his finger to her as she drove away. I think she could have seen this, as she says, in her rear view mirror. I think Mr Brooker is not telling the truth about this. But this incident is not relied on as an act of victimisation, no doubt because it happened to Mrs Green and not to Mr Green. With respect to the incident with the children, I can see how the actions described by Mr Brooker could have been understood by the children as directed towards them. It would have appeared to the children that Mr Brooker was scoffing at them because they wished to avoid him. This would have appeared to the children as being done in an unpleasant way as they said.
There were other incidents described by Mr and Mrs Green between themselves and Mr Brooker which were also witnessed by the children. These did not form part of the allegations of victimisation and so the evidence about them was incomplete. Mr Green says that because of the situation that had arisen at school he continued to feel considerable anxiety and I accept that he did genuinely feel this.
Is Mr Green making up his reaction to the events?
Expert evidence was given in reports and at the hearing by Dr Andrew Nielsen, a psychiatric expert called on behalf of the Respondents and by Dr Jonathan Lichter and Ms Angela Bradley, respectively Mr Green’s treating psychiatrist and psychologist.
Dr Nielsen concluded that although Mr Green would have been humiliated by the prank, he had not in fact suffered any psychological injury and that he had always been fit to return to work. Dr Nielson also found that Mr Green was malingering. This was in the sense that he did not have a genuine injury at all.
Dr Nielsen did consider that Mr Green might have Cluster B histrionic personality traits,[16] and Dr Lichter agreed with this. It was not suggested that Mr Green suffered from a Cluster B personality disorder, and so it was not the Respondents’ case that Mr Green’s reaction to the events was caused by a personality disorder, rather than any sexual harassment. Such an argument may have been difficult anyway, since it was rightly conceded by the Respondents that they must take Mr Green as they find him.[17]
[16]Page 24 of Dr Nielsen’s report of 5 February 2016.
[17]Respondents’ submissions paragraph 125.
Instead, Dr Nielsen said that the histrionic personality traits might explain his seeking money and his theatrical response to the incident.[18] The idea that someone with a histrionic personality might be more money seeking than a person without those traits was not further examined at the hearing, but I take it that Dr Nielsen meant that such personalities like to present things in a dramatic way and sometimes this can be costly. An example considered by the experts was Mr Green’s plan prior to the incident to renew his wedding vows during the school assembly.[19] He told Ms Keating that he would also like to land on the oval in a helicopter for that ceremony.[20]
[18]Page 16 of Dr Nielsen’s report of 30 April 2016.
[19]Paragraph 8 of Mr Green’s affidavit of 4 April 2016.
[20]Paragraph 32 of Ms Keating’s affidavit of 30 November 2015.
The Respondents’ primary case is that at the time of witnessing and helping to clear up the room, and also having heard two days later that it was a prank, Mr Green showed no signs of upset and instead was happy to participate in the joke. It is said that in the week he had off work, he realised that he could claim compensation for what happened. So when he returned to work he pretended to be upset and humiliated, and soon after went off work sick, made a WorkCover claim and also made the sexual harassment complaint to ACDQ. He boosted the claim by pretending that there was inappropriate reaction to the allegations from Mr Brooker which amounted to victimisation. And the Respondents say, in order to maintain the pretence that such humiliation resulted in psychological injury he feigned PTSD-like symptoms over the next two years in numerous meetings with his GP and his treating psychologist Ms Bradbury and psychiatrist Dr Lichter and others.
In written submissions the Respondents pointed out the facts relied on adversely affecting Mr Green’s credit. These were helpfully divided into four categories:-
(a)inconsistency with other credible and reliable evidence (both written and oral);
(b)internal inconsistencies;
(c)embellishment over time (in fact, replete with recent invention, the story changing according to who he was speaking to at the time, and for what purpose); and
(d)disingenuity.
I have of course, taken these submissions into account and deal with the most important inconsistencies and exaggerations in this section of my reasons below.
Since the choice I have to make is between Mr Green making up his reaction to the events and his reaction being genuine, it is necessary for me to understand how difficult it would be for Mr Green successfully to mislead his treating psychiatrist and psychologist. It is significant here that by the time of the hearing he had seen Ms Bradley 48 times and Dr Lichter about the same number of times.
That some considerable guile would be required to simulate the reaction to events can be seen from Dr Lichter description of Mr Green’s visits:-[21]
A. He just appeared to be extremely pre-occupied with the incident all the time.
Q. When was the last time you saw him?
A. About a week or two ago.Q. Was he like that then?
A. No. Over time, it become less marked. In the beginning, he would – and I think other writers have documented the same time. He – he wouldperiodically jump up and adopt a boxing stance in a very agitated and angry way. And he might do that several times during the course of an interview. That gradually became a – a little bit less, but he – he would still jump up and walk around in an agitated kind of way. Now, that sort of psychomotor agitation has progressively lessened over time, so it’s much less prominent now than it was in the beginning.[21]T2-75 L19.
Dr Lichter thought that it would have been very difficult for Mr Green to have simulated the symptoms and he would have had to be a very good actor to do so throughout the time that he had been seeing him, but he was open to it as a possibility.[22] He noticed no inconsistencies in his presentation.[23]
[22]T2-39 L14, T2-39 L36 to T2-40 L37, T2-41 L41 to T2-42 L5, T2-44 L45, T2-64 L28, T2-66 L41, T2-69 L11.
[23]T2-74 L44.
Ms Bradley also doubted that Mr Green was clever enough or had sufficient guile to be able to mislead her over such a long time, although she was open to it as a possibility.[24] Over all the time that she had seen Mr Green she did not notice any objective indicators suggesting that Mr Green was being dishonest with her.[25]
[24]T2-12 L34, T2-21 L39 to T2-22 L19, T2-24 L7, T2-59 L36.
[25]T2-59 L34.
The question of guile must be considered in the light of the accepted fact that Mr Green had no intellectual deficiencies, and that he did do some acting work as a film extra.
There are a number of things however, which emerged at the hearing which make it very unlikely that Mr Green made up his reaction to the events in this way. One is the fact that when he saw the recovered[26] photographs of the scene for the very first time in the witness box he was firmly of the view that they were inaccurate in several respects.[27] They did not show cans on the floor, the brassiere was in the wrong place (over a bottle Mr Green said) and the bed was in a different place in the kitchen. Despite it being pointed out to him in cross-examination that the photographs were those of the room taken by Ms Keating just before the mess was cleared up, even after two days to think about it (after which he was recalled to complete his evidence) Mr Green firmly maintained his position that the photographs were inaccurate.[28] What Mr Green was saying about this was highly unlikely, and had Mr Green been sufficiently artful to make up his reaction to the events, I think he would have relented and accepted that he was mistaken about this. This would have been the best approach to maintain his credibility on this issue. There was simply no need to maintain his position on these unimportant things.
[26]It had previously been thought that these photographs had been irretrievably lost.
[27]T1-42 L2 to T1-44 L32.
[28]T3-64 L 20.
Another example of a similar thing was when discussing a written summary of his statement of events dated 14 October 2016 prepared by the business services manager and which he had signed. It was pointed out to him in cross-examination that the statement did not say that there was any liquid on the floor (which Mr Green thought was body fluid), something which Mr Green was saying had upset him greatly because he had to clear this up. Mr Green’s reaction after this omission was pointed out to him, having thought about it over two days (after which he was recalled to complete his evidence), was that it was not his signature on the document and somebody must have forged his signature on the document.[29] I think if Mr Green had been making up his reaction to the events he would not have suggested this because he would have realised that it was very unlikely that anyone would have forged his signature on the document. If Mr Green were lying about these matters, there was simply no need to say that his signature had been forged and I do not think he would have said this.
[29]T3-60 L40 to T3-62 L45, T3-70 L35 to T3-71 L10.
In passing, I would say that the much more likely explanation about the omitted material is that the business services manager did not insert this detail in the statement and Mr Green signed it anyway. In this respect, I note that when she gave evidence the business services manager agreed that Mr Green had mentioned to her at the time about liquid on the floor, so in fact he was right that he had told her about this.
On the point relied on by the Respondents that Mr Green did not show any upset about the prank until after the week’s break, I do not think this is quite correct. It is true that during the two days over which Mr Green believed that the aftermath of a sex romp was real rather than a prank, although outwardly he was willing to joke and be jovial about it, as I have found above he was in fact genuinely upset and concerned about the affair and the use of school premises.
It is common ground that when Mr Green was told that the portrayal had been a prank he fell to his knees. There is disagreement about whether he fell to his knees in laughter (the Respondents’ case) or in disgust (Mr Green’s case). At the hearing Mr Green acted out his action that day. Having seen this, I believe that his reaction to what he was told was misinterpreted by Mr Brooker and Ms Keating. He appeared to be grinning when in fact he was stressed. Indeed, while Mr Green was acting this out in the hearing, Mr Healy asked him if he had a “big smile” on his face,[30] which tends to prove this particular point. The way Mr Green described his reaction on being told about the prank to Ms Bradley was that it was complete shock and that “he smiled incredulously and jogged about saying ‘you!’ to (Mr Brooker and Ms Keating)”.[31]
[30]T3-68 L34.
[31]Ms Bradley’s report 8 October 2015, page 3.
Ms Bradley says that having observed Mr Green many times in an activated and distressed state his reaction could be consistent with the shock and extreme disbelief he claims to have felt at the time. Ms Bradley also noticed a similar situation when she accompanied Mr Green to the school on 15 July 2016 for exposure therapy.[32]
[32]Bundle 5 page 1830.
I accept that Mr Green was very shocked to hear that what he had been led to believe for two days (that the scene was genuine) was in fact only a portrayal of a sex romp which never happened. Whilst I do accept from Mr Brooker and Ms Keating that Mr Green appeared to accept the prank as a joke, I think this was simply his way of attempting to cope with the humiliation. I should add that everyone is unanimous that it was normal for Mr Green to show his feelings in such a theatrical way, and nothing turns on this particular behaviour.
I also need to consider the weight to be given to Dr Nielsen’s view, reached on the information available in writing, and his examination of Mr Green over 3¼ hours, that he was making up his reaction to events, and had in fact suffered no injury as a result of the events complained of. Dr Nielsen was given a letter of instruction some 30 pages long with 617 pages of documents, including all the filed evidence at that time and 36 other documents going back to 2010 when Mr Green made a WorkCover claim for a shoulder injury suffered at work. The letter of instruction reviewed the evidence in detail, reviewed the psychiatric and psychological reports that Mr Green had filed, and pointed out where (on the Respondents’ case) it was said that Mr Green’s case was inaccurate or inconsistent. Some of the material put to Dr Nielsen was not relied on before me. As was put to Dr Nielsen in cross-examination, his instructions made it clear to him what the solicitors who were instructing him were hoping his conclusions would be. Dr Nielsen tried his best to be impartial in the circumstances, but found the instructions unhelpful because he identified his own list of problems when he examined Mr Green.[33]
[33]T2-89 L7.
Dr Nielsen based his decision that Mr Green was making up his reaction to the events, mainly upon inconsistencies in Mr Green’s presentation. At the beginning of his first report he gave 20 examples of these inconsistencies. Some of these were considered by Mr Green’s treating psychiatrist and psychologist, and after their comments, Dr Nielsen accepted some of the comments were valid, so that these were not inconsistencies after all. In cross-examination Dr Nielsen was asked about the inconsistencies in his report, and it was clear to me and I think should have been clear to Dr Nielsen that they either had explanations or were otherwise unfair.[34] One by one they fell away. By the end of his cross-examination, his reasoning was looking thin. Despite this, Dr Nielsen maintained his view that Mr Green was malingering,[35] so this makes me think that his impartiality had probably been affected by his extremely forceful instructions.
[34]T3-16 L10 to T3-31 L10.
[35]T3-35 L20.
Of the other matters of inconsistency and exaggeration in the final submissions filed on behalf of the Respondents there is either a direct plausible explanation for them which was examined at the hearing, or such an explanation can be imagined in the light of Mr Green’s personality. One aspect of his personality which I think explains a lot of the inconsistencies is Mr Green’s suggestibility, another is his difficulty in answering questions, and a third is his histrionic personality.
As for his suggestibility, this was noticeable during the hearing. It first emerged during Mr Green’s cross-examination about his drinking habits since the events complained of. Mr Green’s case is that he was drinking much more heavily than before the events as a form of self-medication. The Respondents’ case however was that his financial records (bank and credit card statements), which had been produced as a result of the Tribunal’s disclosure orders, showed otherwise.
During cross-examination it was put to Mr Green that his financial records did not support his case that his alcohol consumption had increased dramatically since the incident. Mr Green accepted that they did not support his case. I took the view when listening to Mr Green give his answers to this sequence of questions that, for one reason or another, he was reticent to argue the point although he did maintain that he had been drinking excessively. It was as if he was resigned to the fact (as it was being put to him) that his financial records did not support his case that he was drinking much more heavily after the events than before.
The same thing happened when he was being asked why he had not sought employment earlier than he did do.
Ms Bradley thought the submissiveness could be because Mr Green tended to fluctuate quite frequently between being aggressive and feeling defeated.[36] Dr Lichter seemed to say a similar thing to the view that I reached, when he opined that Mr Green was “suggestible and may be tricked into giving an inaccurate response”.[37] Dr Nielsen also seemed to accept this as a possibility.[38]
[36]T2-56 L37.
[37]Dr Lichter’s report 1 April 2016 page 2.
[38]T3-17, L36 to T3-18, L25.
As for the difficulty in answering questions, Ms Bradley said that she had found that questions and comments often needed to be rephrased in simpler ways for Mr Green fully to understand them. She gave this explanation for some inconsistencies found by Dr Nielsen when he interviewed Mr Green.[39] She also said that confusion impacted hugely on Mr Green’s ability to answer questions.[40]
[39]Ms Bradley’s report 10 April 2016 page 6; also relevant is the file note of 24 February 2016 giving Ms Bradley’s comments about Dr Nielsen’s report.
[40]T2-57 L10.
It is also noticeable I think, from some sequences in his cross-examination that Mr Green understood some questions very literally. This caused difficulties when he was asked a long question which contained a sequence of facts some with which he would agree and some with which he would disagree. He would then agree or disagree with the whole question without dissecting the question into the parts that he either agreed or disagreed with. So his answers were not complete. It appeared that he was accepting some facts or disagreeing with some facts when this was not the case.
Dr Nielsen also noticed that Mr Green would not answer the exact question asked if there was something in the question which triggered a thought which he wanted to say. The example he gave was when he asked Mr Green about depression, Mr Green answered by describing his symptoms including sleep patterns in detail, but then got a different answer when he asked directly about sleep patterns.[41] Ms Bradley also noticed this tendency, which she described as tangential communications. She thought it highly likely that this was caused by heightened cortisol levels induced by stress.[42]
[41]T3-16 L46, T3-17 L36.
[42]Page 5 of her report dated 10 April 2016.
Because of the above matters, it would be more difficult for those seeking to obtain a history from Mr Green to get a full and accurate history. It tends to explain inconsistencies in the history recorded by different people.
The above matters also mean that concessions or admissions made by Mr Green when he gave evidence are less valuable for the Respondents’ case than they would have been from a more robust or argumentative witness.
It is significant that Mr Green has presented the facts relied on in support of this claim consistently. This was no doubt assisted by his solicitors, but it was noticeable that Mr Green was consistent at the hearing about the main facts relied on in his claim.
The third thing which affected Mr Green’s recounting of events was his histrionic personality. These meant that he tended to recount events in a dramatic way. This might be misunderstood as untruthful exaggeration, when in fact it was just in Mr Green’s nature. Examples are where Mr Green said that he was left to clean gunk off the vacuum cleaner which he thought was semen, that he thought he had been sexually attacked, that Mr Brooker and Ms Keating had committed treason on their friendship, and that the school was like a force field to him.
The description of the force field did not seem odd to Ms Bradley because it was Mr Green’s description of a feeling that there was some sort of barrier as he approached the school or even thought about approaching the school.[43]
[43]T2-60 L3.
In my view most of not all the exaggerations are explained very simply by Mr Green’s histrionic personality. These are statements made with the purpose of making an impact. They are not things said by Mr Green in an attempt to mislead, because if he were thinking clearly about it he would realise that he was overstating the position.
Turning to the question of Mr Green’s drinking, there is a stark difference between the two sides. Mr Green says that he drank a lot more because of the events. The Respondents say that he grossly exaggerated the extent of his drinking so that he could stay out of work and remain on Workcover.
The Respondents say that Mr Green has been inconsistent about the amount of his drinking which affects his credibility on this issue. The difficulty with this is that it is clear that at times Mr Green was binge drinking, but it was also intermixed with some persistent drinking, so inevitably it would be difficult to obtain a consistent answer from Mr Green about the level of his consumption.[44]
[44]Binge drinking is referred to by Dr Lichter on page 1 of his report of 1 April 2016 and it also appears to be the nature of the drinking recorded by Ms Bradley in her notes.
The financial records can be read in two different ways, and it is correctly submitted by Ms Willson on Mr Green’s behalf that they are capable of supporting Mr Green’s case particularly if he is correct as he said in his evidence that he bought alcohol using cash in the house.
There is some important corroboration for Mr Green’s case about his excessive drinking.
Firstly, it can be seen from Ms Bradley’s records of Mr Green’s visits with her that Mr Green’s excessive drinking was a constant issue. She would frequently note how much he had had to drink in the week leading up to his visit. On two occasions she noted that from his demeanour he had clearly had a lot to drink. It is clear from Ms Bradley’s notes that the extent of his drinking fluctuated. He was trying to reduce, and since he had to report to Ms Bradley about his consumption there was an incentive to do so. It is also clear from her notes that sometimes others, including his wife, purchased alcohol for him.
Secondly there is corroboration from Mrs Green. She gave straightforward evidence about the events which had happened. In her affidavit she confirmed that Mr Green had increased his drinking significantly since the events. She was not asked to give any more information about this when she gave evidence and she was not cross examined on this statement.
Mrs Green provided more information about Mr Green’s excessive drinking to Ms Bradley, and also directly to Dr Nielsen.
Having heard from Mrs Green, I would have great difficulty in saying that she was exaggerating or making up any of her evidence. It would mean that she had agreed with Mr Green to lie to the Tribunal and also to Ms Bradley and Dr Nielsen about Mr Green’s excessive drinking and I think this would be very unlikely. I also think it very unlikely that as part of a pretence Mr Green would ensure that he attended Ms Bradley worse for drink.
In the circumstances therefore, I find that Mr Green is not making up his reaction to the events, and he is not making up the fact that he was drinking significantly more after the events than before as a form of self-medication.
Liability in the sexual harassment claim - considerations
First allegation – preparation of the scene. It is submitted on behalf of the Respondents that setting up the scene in the staff room was not “unwelcome conduct” [within the meaning of section 119(d)] as demonstrated by Mr Green’s jovial conduct on the day when he witnessed the scene and his willingness to handle the brassiere and boxer shorts.[45] However, I have found that until Mr Green realised that it was a prank, he did genuinely believe that he was having to clear up the aftermath of a sex romp including body fluids and that two staff members were having an affair and had used the staff room for an assignation. It is my finding that he would have much preferred not to have had to clean up, and that he was genuinely upset and concerned about the affair and the use of school premises. On that basis it was “unwelcome conduct”.
[45]Page 11 of the Respondents’ submissions.
It was also unwelcome conduct on another basis. For the first two days, Mr Green thought the scene was real. Once he realised it was a prank, the conduct became considerably more unwelcome to him because as I have found, Mr Green was humiliated by the fact that the scene was a prank, and this developed into deep humiliation and a psychological condition.
It is impossible to disconnect the setting up of the scene from the fact that it was a prank – this is because the subjective effect upon Mr Green’s changed according to what he was told. When he was told it was a prank an event which was mildly unwelcome converted to one which was highly unwelcome.
The scene was clearly of a “sexual nature” [within the meaning of section 119(d)]. My understanding of the Respondents’ submissions about this is that they do not argue otherwise.[46]
[46]Page 13 of the Respondents’ written submissions.
The Respondents do submit however that the scene was not “in relation to” Mr Green as would be required by section 119(d).[47] Citing Perry v State of Queensland [2006] QADT 46 at [114] it is said that although the joke was directed to Mr Green the sexual nature of it was not directed towards him. It is suggested that setting up the sex scene was insufficient to amount to conduct of a sexual nature in relation to Mr Green.
[47]Page 13 of the Respondents’ written submissions.
I have considered how to approach the words “in relation to” when discussing the law which applies and on that basis, in my view the setting of the scene was in relation to Mr Green because it was set up in order to humiliate him and in the knowledge that (with others) he would have to clear it up because it was on his cleaning round. Further, as I have found, his attention was specifically drawn to it by Ms Keating. The idea for the setting of the scene came from the fact that Mr Green was showing an interest in the possibility of an affair between the two named staff members and so this was a further connection with him. This connection was complete when Mr Brooker told Mr Green that he had seen those two staff members, with the clear implication that they were responsible for the sex romp. This was said in order to enhance the effect of the prank on Mr Green. This had the intended effect – Mr Green became pre-occupied by what then appeared to be the likelihood that the two staff members were having an affair.
Further, on my findings he was invited that day to sniff the boxer shorts and this was a further connection with him because it directed his mind to the events and encouraged him to engage in jovial banter about it until he was told it was a prank.
In my view these connections between the sexual nature of the scene and Mr Green were close enough to mean that the portrayal of the sex scene was in relation to him. This means that all the requirements of section 119(d) are met.
As for section 119(e) the question arises whether Mr Brooker and Ms Keating intended to offend, humiliate or intimidate Mr Green. In this respect Dr Nielsen opined that the whole point of a prank is to humiliate the other person. Mr Brooker and Ms Keating deny that they intended to humiliate Mr Green but say all they wanted was a laugh. Whilst I accept it is possible pull a prank without intending to humiliate the other person, it is hard to escape the conclusion here that the intention was to humiliate Mr Green. This was a laugh at his expense. It was amusing because, as Mr Brooker said when giving evidence: “He fell for it hook line and sinker”. The implication is that Mr Green was stupid to do so. The fact that Mr Brooker (on my findings) let it be known around the school that Mr Green had fallen for the prank strongly indicates that it was his intention to humiliate Mr Green. As against Mr Brooker therefore, the requirements of section 119(e) are satisfied. I think also it would have been obvious to a reasonable person in Mr Brooker’s position that Mr Green would be humiliated by the setting up of the scene with the intention that Mr Green would believe the sex romp had happened.
The evidence that Ms Keating intended to humiliate Mr Green is weaker. She did know that Mr Brooker was going to set up a sex scene for Mr Green with her prior assistance. She knew that the setting of the scene was prompted by Mr Green’s interest in the possibility that the two staff members were having an affair.
I have found that when Mr Green first arrived on the scene with Ms Keating she said words to the effect of “Look what is that over there?” which (in the way that he heard these words, or perhaps in hindsight) Mr Green believed was a suggestion that he was involved in some way in the scene. Ms Keating did not intend these words to be such a suggestion, and therefore was not said with the intention of offending, humiliating or intimidating him as required by section 119(e).
She did not know that Mr Brooker was going to pretend directly to Mr Green that the two staff members were the people involved in the scene itself and she was not present when he did so. I do think however, that Mr Green is correct to say that he told Ms Keating that “Norm just told me it was (the named staff members)”.
Ms Keating was aware that Mr Green was increasingly speculating about who had been involved in the sex romp, and when Mr Green told her he was going to talk to one of the staff members concerned, she decided that it was time for Mr Green to be told that it had all been a prank.
On balance I do not think the above is sufficient for me to say that Ms Keating intended to humiliate Mr Green in giving her assistance to set up the scene and in her participation in the prank on the day that it happened.
The question then arises whether a reasonable person in her position would have anticipated the possibility that Mr Green would be offended, humiliated or intimidated by the conduct. If this test set out in section 119(f) is satisfied then this completes the contravention of section 119 as far as Ms Keating is concerned.
It is submitted on behalf of the Respondents that a number of things demonstrated that Mr Green would be unlikely to be offended, humiliated or intimidated by the events.[48] He was a “white, middle aged, heterosexual male, who has trained and competed at a professional level in combat sports” and so was not the “archetypal victim of sexual harassment”. So, it is submitted, a reasonable person would not have anticipated the possibility that he would be offended, humiliated or intimidated by the conduct (as required by section 119(f). I do not agree. I think a reasonable person would recognise that everyone has sensitivities however they outwardly appear.
[48]These things are set out in the Respondents’ submissions on pages 21 to 24.
So my answer to this is “yes” on the basis that the plan was to create a realistic scene, which Mr Green would believe was real, and then to tell him that the scene was a prank, at which point he would be likely to be humiliated. The fact that the plan was to set up a realistic scene is indicated by the prior discussion between Mr Brooker and Ms Keating.[49] The fact that the plan was always to tell Mr Green that it was a prank comes from the fact that Ms Keating knew it was to be a joke.[50] Also Mr Brooker told me when giving evidence that the plan was always to tell Mr Green it was a prank.
[49]Described in paragraph 40 of Ms Keating’s affidavit of 30 November 2015, as amplified when she gave evidence.
[50]Paragraph 42 of her affidavit of 30 November 2015.
Second allegation: accusing Mr Green of being involved in the scene. On my findings this did not happen in the way it is being put forward and so this allegation fails.
Third allegation: the handling of the underwear. I have found proved the allegation that Mr Green was invited by Mr Brooker to sniff the boxer shorts on the day he witnessed the scene. I accept that he refused to do so. I accept that this was unwelcome conduct because Mr Green had no desire to sniff the boxer shorts. It was conduct of a sexual nature because the boxer shorts had featured in the sex scene. It was conduct in relation to Mr Green because he was directly invited to do something. I also accept that it was an attempt to humiliate him because it was part of the overall plan to prank him and make the event as realistic as possible so that Mr Green would be humiliated. It therefore comes within section 119(d) and (e). In those circumstances it also comes within section 119(f) because a reasonable person would anticipate that when Mr Green became aware that the whole thing had been a prank, the attempt to humiliate him by setting up the scene and inviting him to sniff the boxer shorts would be complete.
Fourth allegation: the communication of the event to others. I have found that Mr Brooker did inform the shop staff that the prank had been played on Mr Green.
The statement to the shop staff had sexual connotations, because it relied upon the sex scene, and the sex scene related to Mr Green in the same way as I have found above. It therefore came within section 119(c). It was also unwelcome conduct because Mr Green would have preferred the prank had remained secret. The conduct was of a sexual nature because it referred to the sex scene, and it related to Mr Green in the same way as I have found above. It therefore also came within section 119(d).
I think it must be the case that Mr Brooker told the shop staff about the prank with the intention of humiliating Mr Green. Even if this was not the case a reasonable person would have anticipated the possibility that Mr Green would be so humiliated. Accordingly the conduct also falls into section 119(e) or (f) and is therefore sexual harassment.
Liability in the sexual harassment claims - conclusion
I conclude therefore that Mr Green was subjected to sexual harassment as alleged in allegations 1, 2 and 4.
Liability in the victimisation claims - conclusion
There are three incidents relied on. As I have described above in the section “Facts following the ADCQ complaint”, on 3 March 2015 and 16 March 2015 there were two similar incidents and Mr Brooker admits on these occasions lifting up his phone and directing it at Mr Green in such a way as to make it look as though he was taking a photograph of him. I am satisfied that these incidents upset Mr Green and therefore were to his detriment under section 130 of the Act.
The third incident relied on the incident at school on 22 June 2015 involving Mr Green’s two children. I am satisfied that his actions that day did worry and upset them, and that when Mr Green heard about this, it also upset him. This was therefore to his detriment under section 130 of the Act.
There may well have been a number of different reasons why Mr Brooker behaved in this way on these three occasions, but I am sure that one substantial reason was that Mr Green had made the sexual harassment allegation against Mr Brooker which he was aware of at the time, that is to say the complaint to ADCQ (in respect of the first two allegations) and that complaint and also the referral to the Tribunal (in respect to the third allegation).
My confidence about this comes really from Mr Brooker’s answers to questions when giving evidence.[51]
[51]T4-53 L7, T4-55 L2, T4-58 L10 to T4-59 L15, T4-66 L26 to T4-67 L45.
It follows that these were acts of victimisation against Mr Green.
The effect of the unlawful conduct on Mr Green
During the two days over which Mr Green believed that the portrayal was real rather than a prank, he was only mildly disturbed about it as I have described. Had the matter ended there, it would not have had the serious consequences which developed after he realised it had been a prank.
On Friday 26 September 2014 when Mr Green was told that it had all been a prank, his mild concern changed into anger and humiliation.
Mr Green was not working the following week because it was the second week of the school holidays. Monday 6 October 2014 was a public holiday and so his first day back at work was Tuesday 7 October 2014.
Over those days the events preyed on Mr Green’s mind and became a matter of considerable significance for him. He became increasingly angry and upset about what happened. On his return to work he had noticeably changed and appeared withdrawn. This was noticed by Mr Brooker, Ms Keating and Mr Omar.
Mr Green’s anger and humiliation became deeper when he realised that the fact of the prank upon him had become generally known amongst the school staff and even by staff at the local shop.
On Thursday 9 October 2014 he reported the matter to the business services manager and over the next few days there were meetings with the deputy principal and principal. At these meetings he appeared agitated, angry, embarrassed and humiliated.
On 13 October 2014 Mr Green told his GP about the matter. The GP identified an acute anxiety state because of the prank.
On 20 October 2014 Mr Green saw his GP again. The GP noted that Mr Green was suffering from an acute anxiety state or PTSD. He said that Mr Green could not continue work at present and needed to be referred to a psychiatrist. Mr Green said that he wished to pursue the matter further and to claim workers compensation.
Mr Green did not return to work after that date.
On 28 October 2014 Mr Green was seen by Dr Lichter. He found that Mr Green was then suffering from an adjustment disorder with anxiety satisfying the DSM-IV criteria for that condition as a direct result of the prank and its aftermath.[52] He was prescribed anti-depressant medication. Dr Lichter thought he was unlikely to be able to return to work at the school where he had been employed and that he would find it very difficult to work again with those who played the prank on him. Dr Lichter did not think his emotional state would stabilise before the beginning of the New Year, but that there was a reasonably good chance that he would be fit for alternative work in a different workplace about that time. Dr Lichter recommended supportive and cognitive psychotherapy and also counselling for alcohol abuse.
[52]Page 5 of the report of 29 October 2014.
Dr Lichter continued to see Mr Green regularly. By February 2015, Dr Lichter reported that Mr Green’s symptoms persisted, and the lack of apology from those involved in the prank had not helped.[53] He had increased the dose of anti-depressant medication and also placed Mr Green on antipsychotic medication and a mood stabiliser drug. The prognosis had now worsened, it being difficult to say when Mr Green would return to work, but his condition would be unlikely to stabilise for at least 3 to 6 months. He would require ongoing supportive and cognitive psychotherapy and counselling and to continue on current medication for at least the next year.
[53]Report of 16 February 2015.
Dr Lichter provided a further report for the Tribunal’s hearing dated 1 April 2016. Mr Green continued to be preoccupied with the prank and with Mr Brooker’s ongoing behaviour since the prank, with feelings of profound embarrassment and humiliation in relation to the prank and was perceiving that because of this he would never be able to trust anyone again. He continued to feel sexually attacked. He was continuing to binge drink. He was suffering from an adjustment disorder with mixed emotional features, predominantly anxiety and depressed mood. This was a direct result of the prank, but had been exacerbated by Mr Brooker’s subsequent behaviour.
Mr Green started to see Ms Bradley the psychologist in January 2015 for fortnightly counselling and coping sessions and cognitive behaviour therapy. At the first session, psychometric testing found him to be suffering from extremely severe depression, anxiety and stress. By the eighth session in March 2015 his condition in all three areas had improved to “severe”. Ms Bradley then diagnosed an acute stress disorder, but with indicators of a possible emerging post-traumatic stress disorder.[54]
[54]Report of 30 March 2015, page 5.
Mr Green’s condition however, deteriorated, and as Ms Bradley explained in her report of 8 October 2015 her efforts to prevent him from progressing into a post-traumatic stress disorder was “hampered by frequent traumatic triggering from the perpetrators of the prank (especially Norman Brooker), the investigative process and by the effects of chronic alcohol abuse”. She noticed a significant deterioration in his clinical symptomology and diagnosed alcohol use disorder secondary to post traumatic stress disorder (possibly with dissociation). He was unable at that time to concentrate on formal responses to psychometric testing.
The condition that Mr Green was suffering from at that time caused problems sleeping and concentrating, fatigue, gave him a rapid heartrate, trembling, obsessive thinking, eating and stomach problems, compulsive behaviours, bouts of crying, depressed mood and feelings of hopelessness and anxiety. He denied being suicidal. He was completely unfit to return to work, and would be unlikely to be ever able to return to work at the school in his old job.
However, the Court of Appeal in Cerutti & Anor v Crestside Pty Ltd & Anor [2014] QCA 33 allowed an appeal on this issue where trial judge had refused to add interest to the award for non-financial loss in a defamation case.
Applegarth J, giving reasons (with which Margaret McMurdo P and Gotterson JA agreed) said:-
[89] The discretion to award interest is exercised judicially and in accordance with the principle that interest is awarded to compensate the plaintiff for having been kept out of money to which it was entitled as a result of the defendant’s wrong. The discretion ought to be exercised unless there are proper reasons not to do so.[67] Interest may be awarded from the date the cause of action arose, the date of demand for compensation or for some other period. Often the relevant period is between the cause of action accruing and the date of judgment.[68] As McPherson JA observed in Interchase Corporation Limited v Grosvenor Hill (Queensland) Pty Ltd (No 3):
“In a perfect world, a defendant who injured a plaintiff would immediately recognise the wrong done and pay the amount of compensation required to make good the loss. For reasons that are self-evident, that never happens in practice, and the justification for awarding interest is, as s 47 recognises, to compensate for the delay in payment between the time when the cause of action arises and the date of judgment.”[69]
[90]His Honour (with whom McMurdo P and Thomas JA agreed) also stated that it not immediately apparent why, as a matter of justice, that delay in instituting or prosecuting proceedings should operate to defeat or reduce a plaintiff's right to receive interest as compensation for the whole of the period during which the amount was not paid. Quite apart from the loss to the plaintiff, the defendant has had the benefit of the money, and may be assumed to have put it to good use.[70] Still, the authorities recognize that it would sometimes be unfair to order a defendant to pay interest for the whole period between accrual of the cause of action and the date of judgment. One example is where the plaintiff has been guilty of unreasonable delay in prosecuting the claim.[71]
________________________________________
[67]Cashmere Bay Pty Ltd v Hastings Deering (Australia) Ltd (No 2) [2011] QSC 134 at [12].
[68] MBP (SA) v Gogic (1991) 171 CLR 657 at 663 (“Gogic”); Haines v Bendall (1991) 172 CLR 60 at 66-67.
[69]Interchase Corporation Limited v Grosvenor Hill (Queensland) Pty Ltd (No 3) [2003] 1 Qd R 26 at 52 [59]; [2001] QCA 191 at 59 (“Interchase”).
[70]At [61].
[71]At [61]-[62].
If interest is to be awarded on non-financial loss, it is clear that it should not be at a commercial rate because that would over compensate the complainant.[108]
[108]MBP (SA) Pty Ltd v. Gogic (1991) 171 CLR 657, paragraph [7].
No claim for interest on the award for non-financial loss was claimed for Mr Green. This was based on what I said in McCauley and also in another case that year, Nunan. Counsel for the Respondents agreed in written submissions that no interest should be added to the award for non-financial loss. I invited further submissions on this issue in the light of Cerutti. The Respondents do not say that I am unable to award interest under this head because of a concession made on Mr Green’s behalf. Instead, the contentions are that in principle no interest should be awarded on the basis that Cerutti was a different kind of case, governed by different statutory provisions and that it is inappropriate to award interest.
Having given the parties notice of my intention to consider awarding interest on the non-financial loss despite it not being claimed, I think it is justifiable to made such an award, bearing in mind it is compensatory only, Mr Green was seeking compensation in a much higher sum than I have actually awarded, and that Cerutti says that it ought to be awarded unless there are proper reasons for not doing so.
As for the period over which interest should be calculated, the Respondents submit that the period should not start on 9 October 2014 because of the matters set out in the submissions. They are Mr Green’s slow responses to the Respondents’ interlocutory applications, his alleged failure to inform an earlier instructed psychiatrist of his prior psychiatric history requiring a second psychiatrist to be instructed, and that he was to blame for the adjournment of the hearing March 2016.
I do not agree that Mr Green can be blamed for the delay in finalising this claim. The interlocutory applications were mostly required to deal with issues on which the Respondents have ultimately been unsuccessful. The prior psychiatric history could have been dealt with in a way other than by instructing a different psychiatrist. And the adjournment of the hearing in March 2016 was not solely caused by fault on Mr Green’s side.
I am going to award interest on the sum of $70,000 non-financial loss at the rate of 2% per annum from the date when Mr Green first complained about it to the First Respondent (9 October 2014) to the date of this decision. This comes to $3,160.
Other heads of claim – problems with the Counter Schedule of Loss
In the Amended Schedule of Loss prepared on Mr Green’s behalf there are also claims for loss of earnings up to the hearing, loss of future earnings (loss of earning capacity after the hearing), and for treatment costs for the period after the hearing
The Respondents’ first Counter Schedule of Loss simply contained zeroes for each head claimed by Mr Green. The Tribunal insisted that a proper Counter Schedule of Loss should be filed and it was amended (references in these reasons are all to the amended version).
But the amended version of the Counter Schedule of Loss, as it turned out, was not helpful either. It did not state what was in issue in the various heads of claim for financial loss, nor did it explain the Respondents’ position in principle and amount, as it could and should have done, subject of course to liability. Instead, the Respondents continued to rely on their primary case that Mr Green is entitled to no award at all, or alternatively that Mr Green’s evidence was generally insufficient to support the claim.
One reason for a Counter-Schedule of Loss is so that the issues which arise when considered quantum can be identified prior to the hearing. This is to ensure that either prior to, or at the hearing, an applicant adduces all the required evidence and gives proper disclosure to deal with the known issues. The Tribunal is obliged by its governing statute to ensure as far as practicable that all relevant material is disclosed to enable the Tribunal to decide the proceeding with all the relevant facts.[109] It is only fair for the Tribunal to ensure these issues are raised and dealt with, because these issues only arise if the respondent is found liable to the applicant, and it is unfair for an applicant to be caught out on technicalities in those circumstances. It is also fair because such issues tend either to be questions of principle (in which case they must be dealt with anyway) or technical questions which need advance notice to enable them to be dealt with properly. In this particular case, if such issues had been raised in the Counter Schedule of Loss then it would also have enabled written submissions on these issues to have be made on Mr Green’s behalf (which were done prior the Respondents’ submissions, although Mr Green was able to make submissions in reply).
[109]Section 28(3)(e) of the QCAT Act.
Instead, some issue have only been raised clearly for the first time in the Respondents’ written submissions, when they did not appear previously to be issues. For some heads of claim this has caused difficulty.
Financial loss - the position if the events had not occurred
It is necessary to consider the financial position in which Mr Green would have been, if the unlawful events had not happened.
It appeared from the evidence that was adduced by the Respondents that it might be the Respondents’ case that if the events complained of had not happened, Mr Green would have left the First Respondent’s employment anyway, because he was on a temporary contract and was originally employed to cover another cleaner who was on extended leave. That argument however, was not reflected in the Counter Schedule of Loss, nor does it appear in final written submissions.
At the hearing, the relevant witness called by the Respondents agreed that if not for the events complained of Mr Green would probably still be working at the school as a cleaner. From the other evidence given at the hearing it would appear to be likely that had the events complained of not occurred, Mr Green would have continued as a full-time cleaner for the Respondents until at least two years after the decision in this case is given to Mr Green.
Questions of mitigation
At the hearing, Mr Green was asked several questions about why he did not apply for a job which was available as a groundsman, or as a baker in a friend’s bakery in February 2015 or look for work when certified fit in April 2016. These issues and a number of other matters, not referred to in the Counter Schedule of Loss, are raised in the Respondents submissions as showing a breach by Mr Green of his duty to mitigate his loss.[110]
[110]Paragraph 191 of the Respondents’ written submissions.
It is also said in final submissions that Mr Green failed to mitigate his loss with respect to loss of earnings in the past and in the future by failing to undergo alcohol detoxification and rehabilitation and failing to seek work diligently as soon as he could have done so.
There is no objection on Mr Green’s behalf to the raising of these points so late. I think the evidence about them is sufficient for me to deal with them fairly.
As for the failure to undergo detoxification earlier, although Mr Green was medically advised to do so and was in fact referred to ATODS[111] in September 2015, he did not seek help until August 2016. Unfortunately Mr Green was not asked about this at the hearing. However, the explanation for his non-attendance appears in Dr Lichter’s report of 1 April 2016 (page 3). Mr Green believed that with time he would be able to diminish his alcohol consumption himself. Bearing in mind that the test for reasonableness when considering questions of mitigation is not placed too high particularly where a complainant is placed in a predicament not of their own making, this cannot be said to be a breach of duty to mitigate.
[111]Alcohol Tobacco and Other Drugs Services.
As for Mr Green’s failure to seek work and his fitness for work, there were a few odd jobs which were possibly available to Mr Green at various times including a job at a friend’s bakery in February 2015. There were in fact two reasons why he did not to go for these. The first was that he felt unfit at the time as he said at the hearing,[112] a point of view supported by his treating psychiatrist and psychologist.[113] A second reason was that he was still under contract with the Department, a fact which was borne out by the Respondents’ own evidence. Mr Green preferred if possible to stay employed by the State. He explained why he was so keen to do so, which was because his mother had emphasised the importance of it to him.[114]
[112]For example T1-76 L24, also this is what he told Dr Lichter at the time – T2-65 L42. Whilst Mr Green did submit to cross-examination on this point and agreed that he should have taken up that work, on my findings he was not fit enough to do so at the time.
[113]In their reports, and confirmed by Dr Lichter at T2-66 L2.
[114]T3-93 L26.
In his report of April 2016 Dr Lichter stated that Mr Green was fit for a return to work in a controlled way, and the Medical Assessment Tribunal considered this on 14 June 2016. The decision of the Medical Assessment Tribunal was that Mr Green had no permanent impairment and did not have incapacity for work under the statutory test.[115] Accordingly, Mr Green’s Workcover payments ceased.
[115]Page 1371.
Mr Green then applied for payments from income protection insurance from QSuper. This application was supported by a certificate from his GP dated 28 June 2016, which stated that Mr Green was unfit for all physical and mental activities because of severe depression and inability to concentrate, and it was unknown whether this was temporary or permanent.[116]
[116]Page 1898.
In the light of the GP’s certificate, it was obviously reasonable for Mr Green to continue out of work. It was not for Mr Green to resolve the apparent disagreement between his GP and Dr Lichter. In any case, Dr Lichter’s view that Mr Green was fit for work was qualified and required a graded return to work starting with restricted hours. In that respect, Mr Green said that he had been waiting for a return to work plan from WorkCover.[117] There was no such opportunity offered to him by the First Respondent.[118] And it would have been difficult for Mr Green to organise without assistance.
[117]Mr Green’s evidence T1-98 L25, T1-99 L21, T3-97 L20.
[118]His evidence T3-100 L46.
In June 2016 Mr Green became aware of a groundsman’s job in another school. Dr Lichter thinks he was fit to do that job.[119] However, Mr Green’s reason for not applying for it was that he had discovered that groundsmen have a safety meeting twice a year and so he was fearful of meeting Mr Brooker at those meetings. In my view, bearing in mind Mr Green recognised the need to remove himself as far as possible from continuing stressors, this was a reasonable decision.
[119]T2-71 L13.
In August 2016 Mr Green registered with a job search agency. By the hearing in September he had started as a casual worker as a baker.
Mr Green said that he sought work in August 2016 because of something I said at a directions hearing on 4 August 2016.[120] I was anxious that any necessary evidence about mitigation should be before the Tribunal. It appears that this may have prompted Mr Green to seek work at that time. This seems to explain the timing of his efforts at that time.
[120]T3-96 L4.
In the circumstances, I do not agree that Mr Green has been in breach of his duty to mitigate his loss.
Past financial loss
No claim is made for past financial loss for Mr Green’s wages as a cleaner because he was being paid the equivalent amount by WorkCover and after those payments ceased, by QSuper. However a claim is made for being unable to work as a swimming instructor and also for having lost work as a film extra, and an amount for lost superannuation on top of this.
The claim for loss as a swimming instructor is $17,430 over a period of the two years from the date of the events. The claim is supported by Mr Green’s affidavit evidence which gives information about his earnings in the past.[121] Mr Brooker states that Mr Green taught his son to swim. One difficulty with this claim is, as submitted on behalf of the Respondents, that there was no clear evidence in chief that Mr Green would have been able to carry on as a swimming instructor if the events had not occurred. If the events had not occurred, he would have been working a 38 hour split shift at school and to complete the claim some evidence would have been required explaining that the swimming instruction work was available to him and he would have been able to carry it out, given his cleaning duties. The closest is the evidence of Mrs Green (when talking about the situation before the events) that “he loved his job at the school and teaching children swimming lessons” which suggests that he could work in both jobs. In cross examination, Mr Green did say that he could and would have been able to do the two at once. He said that he worked for two schools at once, including a swimming school,[122] and then later explained how he would have spoken to the students about their swimming lessons having cleaned their rooms.[123]
[121]Paragraph 54 affidavit of 19 October 2015, paragraph 6 of affidavit of 4 April 2016, and exhibits SG4 and SG5 to his affidavit of 12 February 2016.
[122]T3-66 L4.
[123]T3-94 L15.
Whilst this clearly is not the best evidence available, it is sufficient for me to find that if the events had not occurred, Mr Green would have done some swimming instructors work as well as his cleaning job. I accept also that he did not do this work because of the events. He was unhappy about working directly with children or in schools generally, and Dr Lichter’s view was that he was unfit to be a swimming instructor while he was drinking so heavily and his mood was poor.
A point is made by the Respondents that it is possible that the Workcover payments include an element for loss of earnings as a swimming instructor. If so, it is said, then Mr Green has no loss under this head. Again this is an issue which should have been raised in the Respondents’ Counter Schedule of Loss. If it had been raised there, Ms Willson and the Tribunal would have been alerted to it as an issue which needed to be examined and dealt with. The case as put on Mr Green’s behalf in the Amended Schedule of Loss was clearly that Workcover covered the loss of wages from the cleaning job, and nothing else. In the circumstances, I do not think it is fair to permit the Respondents to rely on this particular point.
In any case, it would appear from the information that is available that the WorkCover payments probably do not include any loss of swimming instructor earnings. Although there does not appear to be a calculation of the gross normal weekly earnings in the bundle of documents provided for the hearing, it can be seen from the payslips exhibited by Mr Green that his recent gross payments from Workcover are only a small amount above his gross pay stated by the Department of Education to be payable in October 2014.[124] The difference is most likely because of an increase in cleaner’s pay. It is too small a difference to account for the swimming instructor earnings. Also it would appear that Workcover made a provisional decision to exclude the swimming instructor earnings from the calculation.[125]
[124]Pages 177, 178, and 2442.
[125]Page 2447.
As for the quantum of this loss, Mr Green referred to the student’s swimming season starting soon after the events complained of, that would be in early October 2014. It was the opportunity to act as a swimming instructor that he missed between then and about two years later. Since damages for past loss of earnings in discrimination cases are taxable in the hands of the recipient[126] all the calculations use gross figures. The way it has been calculated in the schedule of loss is by taking an average gross per year of $8,653.50 or $166 per week. Given a period of loss of 105 weeks the loss is calculated at $17,430. There is nothing to suggest that the Respondents challenge these figures other than in the way I have described, and they seem about right to me. I award $17,430 gross under this head.
[126]ATO Taxation Ruling 2424.
Superannuation on this amount is also claimed. In their final submissions the Respondents say that Mr Green has given no evidence as to the terms of his employment so there is no evidence on which the Tribunal could conclude that Mr Green was entitled to employer superannuation contributions. Again, this is something that should have been raised in the Counter Schedule of Loss. If that had been done, then Mr Green could have obtained, and the Tribunal would have permitted, further evidence to deal with this issue. It was clear from the Amended Schedule of Loss that Mr Green was claiming superannuation on these earnings. I think it is unfair to allow the Respondents to rely on this point since it was not raised in the Counter Schedule of Loss.
In any case, since the swimming instructor earnings would have been compressed into the students’ swimming season weeks, the amount would be sufficient to require superannuation guarantee payments if he were employed. And the relevant paperwork shows that he was employed at least on a casual basis.[127] In those circumstances I think it is right to add superannuation payments to the award. It is claimed at 9%, but in fact the superannuation guarantee rate was 9.5% in the period of loss that we are looking at. I therefore allow an extra sum of $1,656 for superannuation.
[127]Payment summary page 128 and tax return page 134.
The claim for loss as a film extra is $3,000. The claim is supported by Mr Green’s affidavit evidence.[128] Mr Green says that he was contacted by his agent “in relation to” 3 months work as an extra on the Pirates of the Caribbean 5 movie being filmed on the Gold Coast. Mr Green says that he was unable to accept this work due to his health. There is no evidence that Mr Green would have been able to accept any offer of film extra work given his cleaning duties and his swimming instructor work. Also the evidence about the availability of this work is not strong enough to support the position taken in the Amended Schedule of Loss that the film extra work was offered to him. Saying that the agent spoke to Mr Green in relation to the work does not prove that the work was available. I make no award under this head.
[128]Paragraph 55 affidavit of 19 October 2015, paragraph 5 of affidavit of 4 April 2016 and exhibit SG5 to his affidavit of 12 February 2016.
Future loss of earnings
A claim is made under this head for future loss of earnings on the basis that Mr Green will be out of work until retirement age, or at least unable to work in the full capacity that he was prior to the events. It is suggested that if the Tribunal were to say that Mr Green would be likely to return to full time work, then he has reduced earning capacity and it would be right to award a global amount to allow for that.
The claim in the Amended Schedule of Loss is based on a multiplicand and multiplier for life but as I discussed under the section “prognosis”, the probability is that Mr Green will cease to suffer financial loss arising from the events complained of by two years after he is given this decision, but up to that time he will probably be in and out of casual or part-time work. The probability is that in the calendar year following this decision he would be earning about 30% of what he would have earned as a full time cleaner and in the following calendar he would earn about 60% of what he would have earned as a full time cleaner. His loss in the first year is therefore 70% of what he would have earned as a full time cleaner, and in the second year is 40% of what he would have earned as a full time cleaner.
In the Amended Schedule of Loss, the multiplicand has been rounded down to $500 per week from $565.60 per week. The Respondents’ position on this is that Mr Green has not established how this figure is reached, and so his claim is “unsupported and unsustainable”. The submission is difficult because it was not raised as an issue in the Counter Schedule of Loss, but in any case it is wrong because it can be seen that $565.60 per week comes from Mr Green’s total gross earnings in the year to 30 June 2014 as set out in his tax return.[129] It includes his earnings as a school cleaner as well as his swimming and film extra earnings for that year and therefore needs to be adjusted because it is my finding that the probability is that he will not have any further loss of swimming instructor earnings or film extra earnings once this claim is finally dealt with.
[129]Page 134.
The multiplicand also suffers I think, from the difficulty that the school earnings on which it is based only starts part way through the financial year.
I consider it is justified for me to start again with this calculation based on the information I have before me for three reasons. Firstly, the Respondents do not agree this figure. Secondly it includes elements that it should not do. And finally it appears to be quite wrong. Also the Tribunal’s governing statute entitles the Tribunal to inform itself in any way it considers appropriate.[130]
[130]Section 28(3)(c) of the QCAT Act.
There is evidence about Mr Green’s earnings as a cleaner. Workcover asked the Department of Education, Training and Employment for his wage information in October 2014 and it was given the figures.[131] Mr Green was on an hourly rate of $23.7644 and worked 38 hours a week. They gave his weekly earnings as $903.05. There is evidence from the Senior Facilities Services Officer which exhibits the relevant certified agreement for 2015 and this shows that casual cleaners’ pay was $28.4356 per hour from 1 April 2016, $29.1478 from 1 September 2016 and $29.8761 from 1 September 2017.[132] These higher hourly rates must be as a result of pay increases since October 2014. On 38 hours per week this comes to $1,108 per week from 1 September 2016 and $1,135 per week from 1 September 2017.
[131]Page 2442.
[132]This is using pay point 1. Exhibit PD3 of affidavit of 26 July 2016.
These are gross figures, but it is appropriate to use after tax figures because awards representing compensation for loss of future earnings in discrimination cases are capital in nature not subject to tax.[133]
[133]Paragraph 21 of ATO Taxation Ruling IT 2424, referring to loss of earning capacity.
The effect of tax can be seen from two pay advices exhibited by Mr Green, one covering the period prior to the events concerned and one after the events.[134] These show that about 16% should be deducted for tax.
[134]Exhibit SG7 to Mr Green’s affidavit of 12 February 2016.
The correct multiplicand to use as at the date of this decision is therefore $1,108 per week gross = $57,616 per annum less 16% for tax = $48,397 and I shall use these figures for my calculation of loss in year 1. For the calculation of loss in year 2, I propose to use the known increase in pay which applies from 1 September 2017. This will be $1,135 per week gross = $59,020 per annum less 16% for tax = $49,577. In the table below the loss factor provides for the probability that Mr Green would earn 30% of full time cleaners’ earnings in year 1 and 60% of those earnings in year 2. It is right to allow superannuation on the gross lost future earnings at 9.5%, also limited to this loss factor. The calculations is as follows:-
Year
Gross multiplicand
Net multiplicand
Loss factor
Net loss of earnings
Loss of super @9.5% of gross
1
$57,616
$48,397
70%
$33,878
$3,831
2
$59,020
$49,577
40%
$19,831
$2,243
Total
$53,709
$6,074
This calculation makes no allowance for early receipt of money which would otherwise be payable over a period. This is offset a little by the increase in cleaner’s wages known be occurring from 1 September 2017 for which I have not fully allowed (I have used this only from the beginning of year 2) and other such increases. Also the calculation makes no allowance for the vicissitudes of life. However, the period over which the calculation is made is short at two years. I will reduce the award by 10% to allow for these factors.
This means the award for future loss of earnings comes to $48,338 and the loss of superannuation on such future loss of earnings comes to $5,467.
Future cost of treatment
A global amount of $10,000 is claimed for this in Mr Green’s Amended Schedule of Loss for the cost of ongoing psychiatric and psychological treatment. This is based on Ms Bradley’s costed treatment plan covering to the end of 2017 and the ongoing costs of medication. The Respondents do not comment on this or explain whether any element in it is challenged in their Counter Schedule of Loss. In their written submissions however, the Respondents say that Dr Lichter said that Mr Green needed such treatment for “six months”. But he did not say this, he said that they were needed for “at least six months”. This is not inconsistent with Ms Bradley’s view. I think the claim for the cost of treatment seems about right at $10,000 and I shall award that amount.
Bringing the figures together
The award is therefore:-
Non-financial loss (pain, suffering, loss of enjoyment of life, offence, embarrassment, humiliation and intimidation) $70,000
Interest at 2% on non-financial loss $3,160
Past loss of earnings (calculated using gross figures and assuming it is subject to tax) $17,430
Superannuation on the past loss of earnings $1,656
Future loss of earnings (calculated using net figures and assuming it is not subject to tax) $48,338
Superannuation on future loss of earnings $5,467
Future cost of treatment $10,000
The total amount to be paid to Mr Green is therefore $156,051.
Apportionment
An order against Mr Brooker in this amount is certainly appropriate, as is an order against the State of Queensland in the same amount because of its vicarious liability for the acts of Mr Brooker.
Ms Keating was involved the sexual harassment which happened on 24 September 2014 (the setting up of the sex scene with the intention of pranking Mr Green, in circumstances where a reasonable person would have anticipated the possibility that Mr Green would be humiliated). But she was not responsible for the other two acts of sexual harassment nor for the acts of victimisation which on my findings exacerbated Mr Green’s condition. She was not responsible for hinting to Mr Green that the purported sex romp was the aftermath of an affair between two staff members. She did not invite him to sniff the underwear nor did she inform others about the prank.
The award against Ms Keating ought to reflect the impact on Mr Green of the sexual harassment for which she was responsible, and should not reflect the impact on Mr Green of the sexual harassment or victimisation for which she was not responsible. In other words, she is only liable for the injury caused by her unlawful act and not the injury caused by the unlawful acts of others. Neither the expert evidence in this case, nor the parties’ submissions, address the respective responsibility of Mr Brooker and Ms Keating. Since Mr Brooker was responsible for all the consequences of the unlawful conduct, the most convenient way of addressing Ms Keating’s responsibility is to take a proportion of the total amount awarded against Mr Brooker and award this amount against Ms Keating. If it is possible for me to apportion the respective impacts I would say that the sexual harassment perpetrated by Ms Keating caused 50% of the total impact on Mr Green.
Can such an order be made? I think it can because under section 209 of the Anti-Discrimination Act, the amount awarded should be an amount the Tribunal “considers appropriate as compensation for loss and damage caused by the contravention”.
In McCauley, I considered that the Tribunal could apportion the award in such a way provided the total award was not split between respondents. The Tribunal was able to reduce the amount payable by one or more of the respondents provided one respondent was ordered to the total amount.[135] McCauley was however quite different because all the loss and damage in that case had been caused by the unlawful conduct. So it was not a causation issue. However, it would have been unfair to order the perpetrator to pay the full amount of compensation.
[135]McCauley v Club Resort Holdings Pty Ltd (No 2) [2013] QCAT 243, paragraphs [277] to [297] considering Mount Isa Mines Limited, Joe Kirvensniemi, Darryl Jameson, Chris Ahern, Percy Elliot v Narelle Marie Hopper [1998] QSC 287 which decided that the Tribunal could not apportion responsibility between respondents so that they are liable to pay only a share of the total compensation.
In these circumstances I am going to reduce the amount that Ms Keating is ordered to pay by 50% of the total amount of compensation.
Non-publication order
During the proceedings, an order was made under section 191(1) of the Anti-Discrimination Act that the identities of certain individuals involved in this matter should not be disclosed and that the order shall continue until the expiry of one year after the final conclusion of this claim in QCAT (and any appeal). This order is confirmed. It does not prohibit the disclosure or publication of the identities of any person named in these reasons.
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