Hewett v Davies & Anor
[2006] FMCA 1678
•17 November 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HEWETT v DAVIES & ANOR | [2006] FMCA 1678 |
| HUMAN RIGHTS − Sex discrimination − where applicant a former part-time employee of the respondents − where applicant alleged the first respondent sexually harassed her under ss.28A and 28B(1)(a) Sex Discrimination Act 1984 − where facts in relation to the incident of harassment in dispute − whether incident constituted harassment − where the applicant resigned from the respondents’ employ shortly after the incident. DAMAGES − Assessment − whether the incident resulted in a loss of wages for the applicant − whether special damages should be awarded for psychological injury following the incident − whether general damages should be awarded − whether aggravated damages should be awarded on account of the second respondent’s conduct following the resignation of the applicant. |
| Sex Discrimination Act 1984 (Cth), ss.28A, 28B(1)(a) Federal Magistrates Court Rules 2001 |
| Briginshaw v Briginshaw (1938) 60 CLR 336 Elliot v Nanda [2001] FCA 418 Aldridge v Booth (1988) 80 ALR 1 San v Dirluck (2006) 222 ALR 91 |
| Applicant: | CATHERINE MARY HEWETT |
| First Respondent: | RONALD DAVIES |
| Second Respondent: | DEBORAH DAVIES |
| File Number: | SYG1505 of 2006 |
| Judgment of: | Raphael FM |
| Hearing date: | 25 October 2006 |
| Date of Last Submission: | 25 October 2006 |
| Delivered at: | Sydney |
| Delivered on: | 17 November 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Wormington |
| Solicitors for the First Respondent: | The Charlestown Law Firm |
| Solicitors for the Second Respondent: | The Charlestown Law Firm |
ORDERS
Respondents to pay the applicant the sum of $3,210.00 for breach of s.28B(1)(a) of the Sex Discrimination Act 1984.
Respondents to pay the applicant’s costs to be assessed in accordance with Part 21 Rule 21.02(2)(b) and Schedule 1 of the Federal Magistrates Court Rules 2001.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT NEWCASTLE |
SYG1505 of 2006
| CATHERINE MARY HEWETT |
Applicant
And
| RONALD DAVIES |
First Respondent
| DEBORAH DAVIES |
Second Respondent
REASONS FOR JUDGMENT
In this proceeding the applicant seeks relief for what she claimed was a breach of s.28B of the Sex Discrimination Act 1984 (Cth) (the “SDA”) against the respondents, who are partners in a business trading as “Hair We Are”, arising out of an incident which occurred on 21 November 2005. Although the two respondents are partners in the business it is run by the second respondent. At the time of the alleged incident the first respondent was sitting in the salon having his hair treated by his daughter, an apprentice hairdresser. The applicant claims that the partnership is vicariously liable for the acts of one of the partners.
It would probably be more accurate to say that the partnership is responsible for the acts of any partner carried out in connection with the partnership business.
Ms Hewett is a hairdresser. She had been employed part time by Hair We Are at its salon at 499 High Street Maitland for some time.
On 21 November 2005 Ms Hewett was not working. The salon was closed to the public, however inside the salon were Mr Davies, Mrs Davies and their daughter Kristen Davies. Ms Hewett was coming in to collect her pay for the week. She was with her daughter Gemma. Gemma went into the salon. She saw that Mr Davies was sitting in a salon chair at one of the work stations and was having something done to his hair by his daughter Kristen. She told Kristen that Catherine Hewett would be coming in to collect her pay. Gemma Elliott says that Kristen then went to the cash register and got the pay packet out of it:
“Ron Davies then said “Kristen, give it here”, Kristen gave it to him. Ron Davies then proceeded to put the pay packet down the front of his pants. He was laughing thinking it was funny. Debbie Davies then got up and went to the back door and sat in the doorway having a cigarette. She could still see what was happening inside. Ron Davies then said “Oh wait I have a better idea”. He then undid the fly on his pants and stuck the pay packet in his open fly. He lent back on his chair with his hands behind his head in a suggestive manner and said “What do you think she will do?” Kristen said “Dad that’s disgusting.” Ron Davies laughed. Mum then walked into the salon and Ron Davies said to her “If you want your pay you have to come and get it.” He pointed to his crotch. Mum said “I am not touching that.” Ron Davies repeated “If you want it you have to come and get it.” Mum then opened her hand bag and said “You can drop it in here thank you.” Ron Davies got a hair clip and picked the pay packet up with it and dropped it in Mum’s handbag. Mum and I then said goodbye to Kristen and Debbie Davies and left.”
According to Ms Hewett:
“I saw my pay packet in his unzipped fly of his shorts. I said I am not going to touch it. He repeated himself again. “If you want your pay you will have to get it.” Ron was still laughing hysterically. I then said “I wouldn’t touch it.” I asked Kristen, Ron’s daughter, to get the pay packet, she said no. I then said “I wouldn’t touch it not even with a pair of tongs”. I then opened my handbag by the straps and said you can drop it in here. Ron got a hair clip off a nearby trolley and retrieved the pay packet from his fly and dropped it into my handbag.”
Ms Hewitt worked for at least one and possibly two more days that week and then left the respondent’s employ. There was a dispute between her and Mrs Davies concerning holiday pay. Ms Hewett went to the Department of Industrial Relations which advised her that she was entitled to a certain amount of holiday pay. On 13 December 2005 there was a heated discussion between Ms Hewett and Mrs Davies. Ms Hewett says that the heat was all on Mrs Davies’ side and the phone was put down. The next day she made a complaint to HREOC concerning the incident with the pay packet. Later, after a letter of demand was written, the appropriate amount of holiday pay was paid.
The Davies’ version of events which occurred in the salon is that Mr Davies was in the chair having his hair coloured by his daughter. He was wearing a black hairdresser’s cape. His hands were underneath the cape. It is agreed that Gemma came in and told them that her mother was coming to collect her pay and that the pay packet was obtained and came into the hands of Mr Davies. He says that he placed it on top of the cape. Under cross examination he suggested that there might have been a magazine on top of the cape and the cheque was placed on top of the magazine. He said that when Ms Hewett came in, he reached from under his cape and took the plaintiff’s pay cheque off the counter and put it on his lap which was covered by the cape:
“I then said to the plaintiff “Here is your pay” to which the plaintiff replied in a joking fashion “I won’t pick that up with a pair of tweezers.” Everybody in the room laughed including the plaintiff. I then took my hands from out under the cape and quickly placed the cheque in the plaintiff’s bag which the plaintiff was holding.”
Mr Davies denied at any time opening his zipper or placing the pay packet first inside his trousers. Mr Davies said that he was wearing jeans and not shorts as deposed to by the applicant and her daughter.
The story told by Mr Davies was corroborated by his daughter and by Mrs Davies. The claim made by Ms Hewett was corroborated by her daughter Gemma. In order to decide whether I am satisfied to the required standard of proof, which in matters of sexual harassment has generally been accepted as being as what is known as “the Briginshaw standard” Briginshaw v Briginshaw (1938) 60 CLR 336, it is necessary to consider the evidence of the witnesses in regard to this and some other matters.
Ms Hewett alleges that she was so upset by what took place that she could no longer work at the salon. She resigned within a couple of days. She also says that she had to attend a psychologist. She claims that she did not get a paying job for some time although she admits that she was working very shortly after she left the employ of Hair We Are. I did not receive the evidence of the psychologist because he was not available for cross examination. There was tendered a number of psychologist’s accounts. I am prepared to accept that Ms Hewett did see a psychologist, but as I have no evidence apart from her’s that this was because of the incident I am unable to give it very much weight.
Ms Hewett also complained that on 8 April 2006 Mrs Davies had been asked to give a reference for her to one Shannon Garland who ran a hair studio in Singleton and that she gave her an unsatisfactory reference. Most of the evidence concerning this event was hearsay, although Mrs Davies did admit that she told the prospective employer that Ms Hewett had made a complaint to the Human Rights and Equal Opportunity Commission (“HREOC”).
The case put by Ms Hewett suggested that after she had left Hair We Are she was unable to find paid employment until about April 2006. As the evidence came out it appeared that she had organised to work in another salon that she was considering buying. Early in 2006 she concluded that the salon was not a money making proposition and therefore did not proceed with the purchase. She was working in the salon in the meantime on a trial basis. She was not being paid. It was suggested by the Davies that Ms Hewett had arranged to undertake this purchase of the salon before she left Hair We Are and that this was the real reason why she left their employment. The Davies said that when Ms Hewett resigned she made no mention in her resignation letter of the incident and wished them “good luck”. The Davies argued that Ms Hewett only raised this incident after the dispute between Mrs Davies and Ms Hewett concerning her holiday pay.
Ms Hewett’s partner, Robert Marshall, gave evidence that on 20 February 2006 he was driving along the New England Highway when he was flagged down by Ron Davies:
“Ron Davies said “Gday mate I want to talk to you man to man. Robert I am really embarrassed by all this. The thing that happened between me and Cath was only a joke. I was joking with her and I want this to just go away. Your truck isn’t sounding too good can I fix the truck? I am financially ruined and I need to sell my house at Gilleston Heights. Debbie won’t want to go along with his but you can sell the house for me and get the commission. I want you to have a discussion with Cath as soon as she can and I want you there as well and work something out to make her happy. If you can get her to drop this action I will be so grateful because I haven’t got any reason for living any more and I feel like doing myself in. I just want us to be friends and I know that Cath is only doing this to me because of what Debbie did to her.”
Mr Davies does not deny meeting Mr Marshall as deposed and does not deny having a conversation with him intending to sort out “the problem”. He does deny the admission that it was just a joke and he didn’t suggest that he would have to sell his house or offer Mr Marshall the agency.
One of the major points of contention was whether or not Mr Davies was wearing a cape or a towel and another was whether he was wearing jeans or shorts. All three Davies said he was wearing the cape and jeans. Ms Hewett and Gemma said that he was definitely not wearing a cape and was wearing shorts. In the cross examination surrounding these matters questions were asked as to what procedure Mr Davies was undergoing. Mr Davies said he had had his hair coloured and it was about to be cut when Ms Hewett walked in.
His daughter and his wife said that the hair had been cut and it was about to be coloured when Ms Hewett walked in. I would have thought this was the more accurate version of what occurred because it would seem a waste to colour someone’s hair only to cut it off.
In regards to the incident I have come to the view that I prefer the evidence put forward by the applicant. If the incident happened as suggested by Mr Davies, why would Ms Hewett say “I wouldn’t pick that up with a pair of tongs?” Whereas if the incident occurred as suggested by Ms Hewett, and corroborated by her daughter, this remark is quite consistent. I was particularly impressed with Gemma’s evidence. At one stage she was asked by Counsel for the respondents whether she had discussed her evidence with her mother. She agreed that she had. She was asked whether she had discussed the placing of the pay packet in Mr Davies’ fly. She agreed that she had. She was then asked whether she had discussed with her mother whether Mr Davies was wearing a cape. The way in which she told the court that she had not discussed the cape with her mother had such a convincing ring to it that I felt that I could accept all of her evidence. Gemma and Kristen are about the same age. Kristen is still working with her mother in the salon. I don’t think it unnatural that her recollection would follow that of her parents in respect of this important incident. I was also impressed by Mr Marshall’s evidence.
I think that I would prefer his version of the conversation with
Mr Davies to that of Mr Davies’ and accept that in it Mr Davies made what appears to have been an admission against interest.
Although I am prepared to accept that the incident occurred as deposed to by Ms Hewett and her daughter this does not necessarily mean that everything that she says which followed from the incident necessarily did so. Section 28A of the SDA states:
“Meaning of sexual harassment
(1) For the purposes of this Division, a person sexually harasses another person (the person harassed ) if:
(a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or
(b) engages in other unwelcome conduct of a sexual nature in relation to the person harassed;
in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimidated.
(2) In this section:
"conduct of a sexual nature" includes making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing.”
The breach becomes unlawful by virtue of s.28B(1)(a):
“(1) It is unlawful for a person to sexually harass:
(a) an employee of the person; or”
The test of whether a breach of the SDA occurs is both subjective and objective. It is subjective to the extent that it is the person making the complaint who must establish that the conduct was unwelcome and objective to the extent that it is for the court to decide whether the circumstances are those in which a reasonable person would have anticipated that the person harassed would be offended, humiliated or intimidated: Elliot v Nanda [2001] FCA 418 as per Moore J at [108]-[109]; Aldridge v Booth (1988) 80 ALR 1 as per Spender J at [p.5]; San v Dirluck (2006) 222 ALR 91 at [32].
I am satisfied from all of the evidence that Mr Davies’ conduct in placing the pay packet in his fly was conduct of a sexual nature and that it was unwelcome to Ms Hewett. It is accepted by all that the words “I wouldn’t touch that with a pair of tongs” was said. Those words seem to indicate that what she was being requested to do was unwelcome. There can be little doubt that the conduct was conduct of a sexual nature and I am confident that a reasonable person would have anticipated that Ms Hewett would be, at the very least, offended by it.
I do not think that the fact that Ms Hewett did not take any steps to complain about this incident until after the dispute between herself and Mrs Davies detracts from the fact that it occurred or from the fact that what occurred constituted a breach of s.28B(1)(a). It may be that Ms Hewett was prepared to let it pass or it may be that she always intended to complain but wanted to wait until she had recovered all moneys owing to her. I do, however, have some difficulty with what Ms Hewett claims is the sequelae of the incidents that she would wish to have reflected in damages.
The evidence concerning Ms Hewett taking up her new position at Cheveu in Singleton is not entirely clear. Ms Hewett did not explain how she found the business or how she negotiated the arrangement by which she worked there on a trial basis other than to state that that is what she did. I rather infer that she may have made that arrangement around the time of the incident although it is possible that she was going to continue her employment at Hair We Are for three days a week and work in the other salon on trial for perhaps two. But this may not matter. Ms Hewett is claiming a loss of wages as a result of the incident. She was not out of work. She chose herself to work in this way. She does not say this was the only work she could get. She has not satisfied me on the balance of probabilities (the Briginshaw standard not being relevant for this purpose) that it was the incident at Hair We Are that caused her a loss of wages. I have already stated that I do not have enough evidence about the visits to the psychologist to make any findings that these were all associated with the incident. Even if I accepted Ms Hewett’s evidence that she went to see the psychologist initially because of the incident I find it difficult to accept that his assistance was necessary for quite the period that was claimed. Other concerns may have intervened. Doing the best I can with evidence from a person whose evidence as to the incident I have accepted but whose evidence on damages I have doubts about, I propose to allow three visits to the psychologist at $70.00 per visit making a special damage of $210.00. I am not able to make a finding that there are any other special damages including wage loss.
A decision as to the appropriate damages for the breach of s.28B(1)(a) has been made difficult by the absence of the psychologist. I am prepared to accept that the incident did upset Ms Hewett. It did occur in front of her teenage daughter. It was totally inappropriate behaviour on the part of Mr Davies. The amount of damages should reflect society’s concern that this type of conduct should be recognised for what it is. It is not the duty of the court to punish the perpetrator but the damages should reflect the seriousness of the incident because that in itself affects the hurt the complainant suffers. In my view an appropriate figure would be $2,500.00.
The applicant also claims aggravated damages arising out of the action which Mrs Davies took in regard to Ms Hewett’s employment in April 2006. As I said earlier in these reasons most of the evidence about the incident was hearsay but Mrs Davies did agree that she had told the prospective employer that Ms Hewett had lodged a complaint with HREOC. I have little doubt that this was intended to affect
Ms Hewett’s prospects of obtaining employment. It is not conduct which can be condoned because complainants must be allowed to utilise the Act without fear of repercussions. As there is no doubt that the remarks that were made were directly related to the incident and what I have found to have been harassment, I think the most appropriate course is to add the sum of $500.00 to the general damages. Judgment will be entered against both respondents who will also be ordered to pay the applicant’s costs to be assessed in accordance with Part 21 Rule 21.02(2)(b) and Schedule 1 of the Federal Magistrates Court Rules 2001.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Raphael FM
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