Hughes v Narrabri Bowling Motel Limited
[2012] NSWADT 161
•09 August 2012
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Hughes v Narrabri Bowling Motel Limited [2012] NSWADT 161 Hearing dates: 19 and 20 March 2012, written submissions21 June 2012 Decision date: 09 August 2012 Jurisdiction: Equal Opportunity Division Before: G Furness SC, Judicial member
A Lowe, Non judicial member
M Nasir, Non judicial memberDecision: Complaint of sexual harassment by Mr Welsh in August 2010 is substantiated.
Mr Welsh is ordered to pay the applicant $7,500 within 28 days.
Complaint of two accounts of sexual harassment by Mr Welsh between January and August 2010 is dismissed.
Complaint of victimisation against Mrs Welsh is dismissed.
Two complaints of vicarious liability by the first respondent are dismissed.
Catchwords: Sexual harassment - victimisation - damages - general damages Legislation Cited: Anti-Discrimination Act 1977
Evidence Act 1995Cases Cited: Alexander v Home Office (1988) 2 All ER 119
Borg v Commissioner, Department of Corrective Services & Anor Case"[2002] NSWADT 42
Caton v Richmond Club [2003] NSWADT 202
Commissioner of Police, NSW Police v Mooney (No.3) [2004]NSWADTAP 22
Dee v Commissioner of Police, NSW Police & Anor(No 2)[2004] NSWADT 168
Hall v Sheiban Pty Ltd (1989) 85 ALR 503
Leibeck v Toll Transport Pty Ltd [2012] NSWADT 19Category: Principal judgment Parties: Jennifer Hughes (Applicant)
Narrabri Bowling Club Limited (First Respondent)
Shay Welch (Second Respondent)
Dianne Welch (Third Respondent)Representation: Counsel
D Stewart, (Respondents)
Merten Lawyers (Applicant)
Bell and Johnson, Solicitors (Respondents)
File Number(s): 111071
REasons for decision
Mrs Jennifer Hughes was employed by the Narrabri Bowling Motor Inn (referred to in this decision as the motel), which was operated by the first respondent (referred to in this decision as the Club) in July 2008 as a casual housemaid. In June 2010, Mr and Mrs Welsh, the second and third respondents took over the management of the motel. The Club had established a committee of three Board members to oversight the management of the motel on behalf of the Club.
On 10 January 2011, Mrs Hughes complained to the Anti-Discrimination Boardthat she had been subject to three acts of sexual harassment by Mr Welsh between June 2010 and August 2010. Mrs Hughes also complained to the Anti-Discrimination Board that after making the complaint of sexual harassment against Mr Welsh she was victimised by Mrs Welsh by being given extra work as a housemaid and then given no work at all.
The Anti-Discrimination Board referred the complaints to the Tribunal on 21 July 2011.
In Points of Claim prepared on Mrs Hughes' behalf, she stated that the three acts of sexual harassment which comprised two unwelcome sexual advances by Mr Welsh brushing up against Mrs Hughes between January 2010 and August 2010. The third act occurred in August 2010 and was an unwelcome request by Mr Welsh for a sexual favour by saying to Mrs Hughes "I'm here to get in between your legs".
The Points of Claim gave the following particulars of victimisation which occurred following the applicant making a complaint to the Board of the Club:
a) Mrs Welsh did not speak to Mrs Hughes
b) Mrs Welsh ignored attempts by Mrs Hughes to speak to her
c) Mrs Welsh unreasonably gave Mrs Hughes extra work
d) Following an issue arising regarding the correct rate of pay for doing trolley work, Mrs Welsh told Mrs Hughes "you are a smart arse but I have no problems with your work" and
e) Mrs Hughes was unreasonably dismissed by Mrs Welsh.
Mrs Hughes complained that the Board of the Club is vicariously liable for the sexual harassment of their employee because they employed Mr Welsh when they knew there had been previous complaints of sexual harassment against him. Further, the Board did not take any action when Mrs Hughes reported the sexual harassment.
Mrs Hughes complains that the Board is vicariously liable for the victimisation by Mrs Welsh because it was aware of the dispute regarding payment for the trolleys and failed to take any action to protect Mrs Hughes or prevent further injury or loss.
THE EVIDENCE IN THE SEXUAL HARASSMENT CLAIMS
The applicant
Mrs Hughes prepared a statement and gave evidence. Her job as a housemaid included stacking linen trolleys and stacking cleaning trolleys with cleaning products and replacement items for the rooms. In relation to the first two sexual harassment claims, Mrs Hughes said that prior to August 2010, Mr Welsh had brushed up against her on a few occasions but that she had thought nothing of it and ignored it and she was not sure if his actions were intentional.
In relation to the third sexual harassment claim, Mrs Hughes said that in about August 2010 when she was getting cups and saucers off the trolley which was located in the carpark, Mr Welsh approached her and said "I am here to get between your legs". She said to him "over my fucking dead body" and he walked away without saying anything further.
After that incident, Mrs Hughes told another housemaid, Kristine Duff of it. Shortly thereafter, Mrs Hughes had a smoke break with Mrs Duff and four other housemaids, Mrs Sue and Mrs Mary Wheeler, Mrs Hodges and Ms Finn during which she told them of the incident with Mr Welsh.
Mrs Hughes finished work at about 11.15am,went home and rang a member of the committee which oversaw the operation of the motel, Mr Schatz and told him what had happened. Mrs Hughes said that she said to him "it was happening with another girl but she was worse off than me".
The following day Mr Schatz and two other committee members, Mr Newton and Mr Gleeson arrived at the motel and spoke to the housemaids. Mrs Hughes observed one of the committee members, Mr Schatz speaking to Mrs Sue Wheeler, and a woman who worked in the kitchen.
Mr Newton, one of the committee members, spoke with Mrs Hodges and Ms Finn and then came into room 14 where Mrs Hughes was working. Mr Newton apologised to Mrs Hughes for what "Shay did to you" and told her that Mr Welsh had had two previous sexual harassment cases.
Kristine Duff
Mrs Duff gave evidence consistent with Mrs Hughes's evidence, that is, that on the day before the committee members arrived at the motel Mrs Hughes was upset and told her, Mrs Duff, of the incident with Mr Welsh, in the same terms that Mrs Hughes has used in the complaint before this Tribunal.
Mrs Duff gave evidence that she observed the committee members arriving the following day and saw Mr Newton talk to Ms Finn and to Mrs Hughes and perhaps to Mrs Hodges and Mrs Sue Wheeler. No committee member spoke to Mrs Duff on that day and there was no group meeting held.
Nicole Finn
Ms Finn gave evidence that the day before the committee members had arrived at the motel she was having a smoke break. Mrs Hughes was present and was very upset and told her that Mr Welsh had made comments to her that he wanted to get between her legs at the crockery trolley or "I want what's between your legs".
Ms Finn gave evidence that on the day that the committee members attended the motel, she spoke to Mr Newton about the occasions on which Mr Welsh had touched her. She did not talk to Mr Newton about any allegations that Mrs Hughes had made.
Maree Hodges
Mrs Maree Hodges gave evidence about the day that the committee members came to the motel. She said that Billy Schatz spoke to her in a room, however she did not have a clear recollection as to what was said then or what else occurred on that day.
Sue Wheeler
Mrs Sue Wheeler also gave evidence about that same day and recalled meeting with "Bill" who asked her how she was going with the new managers and whether she had had any trouble with them, to which she replied that, no, she had not. She said swearing was not discussed. She said that there was no meeting that day with all three committee members and all the housemaids.
Mrs Sue Wheeler gave evidence that, the previous day, while sitting at the table, Mrs Hughes told her that she was making a complaint against Mr Welsh for sexual harassment, although later in evidence she was not sure she could remember sexual harassment being mentioned. She could not remember what Mrs Hughes said Mr Welsh had done or said. She recalled that Mrs Hughes was upset.
Mr Welsh
Mr Welsh swore an Affidavit and gave evidence. He and his wife began managing the motel in June 2010. He said his job was to strip the rooms of used linen and remove dirty crockery and rubbish from the rooms.
He denied Mrs Hughes claim that he had ever brushed up against Mrs Hughes.
In relation to the incident at the trolley, he said that Mrs Hughes was standing at the trolley and blocking access to the bottom tier of the trolley, but he could see the items that he was after, dirty crockery to take to the kitchen. He said words to the effect "I need to get between your legs" and she replied "over my fucking dead body" and moved away from the trolley.
He said he was in a hurry and that he could have approached the trolley from either behind where Mrs Hughes was standing or from one of the sides of the trolley.
In relation to the arrival of the committee members, he said that occurred some three or four weeks after the exchange at the trolley. One of the committee members, Bruce Newtown told him that there had been a complaint that he had flicked one of the girls on the bum with a tea towel. Mr Welsh gave evidence that he admitted having done it and said it will not happen again. He said that nothing was raised about a complaint by Mrs Hughes.
The Committee members
Mr Schatz swore an Affidavit and gave evidence. In his Affidavit, he said that one evening in August 2010 he received a call from Mrs Hughes who said she was ringing on behalf of Ms Finn who had been verbally threatened by Mr Welsh. Mrs Hughes denied having an issue herself.
In response to that call, the committee members arrived the next day at the motel. They held a meeting with all staff, and then met with individual staff members. The issue raised by staff was the language used around the motel. No-one other than Ms Finn suggested that the managers were at fault.
The committee members then met with Mr Welsh who said he had flicked Ms Finn with a tea towel.
In his oral evidence, Mr Schatz said he did not speak with any individual staff members and nor did any of the other committee members, however together the committee members spoke with individual staff members. Ms Finn said to him that Mr Welsh had used foul language in her presence. Mrs Hughes made no complaint.
Mr Bruce Newton swore an Affidavit in which he said that Mr Schatz rang him in August 2010 and told him there was a staff issue at the motel and he agreed to meet the committee members there the next day. They met with the staff and he recalled some of the staff did not like the language used. Then they chatted with a few of the staff individually. He recalled something about Mr Welsh flicking one of the girls with a tea towel. He did not enter any of the motel rooms. He did not know the history of Mr Welsh and did not mention anything about it.
In oral evidence, Mr Newton denied apologising to Mrs Hughes or speaking to her in room 14.
Mr Gleeson, the third member of the committee, is deceased.
MEANING OF SEXUAL HARASSMENT
Sexual harassment is defined in s.22A of the Anti-Discrimination Act:
For the purposes of this Part, a person sexually harasses another person if:
(a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the other person, or
(b) the person engages in other unwelcome conduct of a sexual nature in relation to the other person,
in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated.
Sexual harassment is unlawful in the following circumstances
(1) It is unlawful for an employer to sexually harass:
(a) an employee, or
(b) a person who is seeking employment with the employer.
(2) It is unlawful for an employee to sexually harass a fellow employee or a person who is seeking employment with the same employer.
(3) It is unlawful for a person to sexually harass:
(a) a commission agent or contract worker of the person, or
(b) a person who is seeking to become a commission agent or contract worker of the person. (s.22B)
FINDINGS: THE INCIDENT AT THE TROLLEY
The first issue is whether Mr Welsh said, as claimed by Mrs Hughes "I'm here to get between your legs" with sexual overtones or, as claimed by Mr Welsh "I need to get between your legs" while seeking to access the lower level on the trolley. There is no dispute that Mrs Hughes' response was to say "over my fucking dead body" or that Mr Welsh said nothing in response to Mrs Hughes' comment.
The respondents and the applicant made lengthy submissions which have been taken into account by the Tribunal although not each submission is referred to in these reasons. The respondents submitted that the Tribunal could not be satisfied as to Mrs Hughes' account because, inter alia no-one else heard it, each account is equally plausible, no record was made of the complaint and Mrs Hughes could not be certain of the date on which it occurred. Further, the respondents submitted that the complainant was not consistent in her account of the exchange in that in her original complaint and in her statement she said that Mr Welsh had said "I'm here to get between your legs" and in the Points of Claim, the word "in" was inserted between "get" and "between".
The Tribunal accepts the account given by Mrs Hughes for the following reasons and finds that Mr Welsh used the words attributed to him by Mrs Hughes.
Mrs Hughes' response to the words used by Mr Welsh was expressed in strong terms. That response is more consistent with Mrs Hughes identifying sexual content to Mr Welsh's words. It is less consistent with a request by Mr Welsh to allow him access to the lower shelf of the trolley.
Mrs Hughes's account is sufficiently corroborated by Mrs Duff and Ms Finn each of whom impressed as witnesses of truth. Mrs Duff's recollection of the precise words differs, however, given the passage of time and that they convey the words of a sexual nature they support Mrs Hughes' account. Ms Finn's account was consistent with that of Mrs Hughes.
While Mrs Wheeler had no clear recollection of what was said by Mrs Hughes, she gave evidence that Mrs Hughes was upset. That Mrs Hughes was upset was more consistent with Mrs Hughes' account than Mr Welsh's account of the incident.
The undisputed evidence is that the location of the trolley meant that access could be gained by Mr Welsh without the need to disturb Mrs Hughes' legs.
In relation to the respondents' submissions, while no other person heard the exchange, a not uncommon event in matters heard in this Division, Mrs Hughes told others of it shortly after it occurred. The Tribunal does not find that the failure of a housemaid to record in writing her complaint, in circumstances where she made a verbal complaint that day to the committee, affects the credibility of her account. The circumstances set out above, render her account more plausible than Mr Welsh. The date is not material given the evidence of the events. The Tribunal is satisfied that there is no relevant inconsistency. The Points of Claim were clearly drafted by her lawyers and the Tribunal rejects the submission that the insertion of the word "in" in these circumstances affects the credibility of the applicant.
FINDINGS: SEXUAL HARASSMENT
The test for whether conduct constitutes sexual harassment is not whether the complainant feels it is sexual harassment or whether the respondent intends it to be sexual harassment. The test is an objective one that requires the finder of fact to ask whether a reasonable person would consider that the conduct in question would be likely to offend, humiliate or intimidate:Caton v Richmond Club Limited[2003] NSWADT 202.
The Tribunal finds that a reasonable person, having regard to all the circumstances would have anticipated that Mrs Hughes would have been offended, humiliated or intimidated by those words. Mr Welsh was in a position of power in relation to Mr Hughes, in that he and his wife had the power to offer or not offer her work.
The respondents' submitted that the words used by Mr Welsh are not on their own capable of having a sexual meaning. The Tribunal rejects this submission taking into account that Mr Welsh did not, in fact, need to access the trolley via Mrs Hughes' legs; the strength of Mrs Hughes' response, and finally; that Mr Welsh made no response in turn to Mrs Hughes' saying "over my fucking dead body". Had the words had no sexual component, it would be expected for Mr Welsh to comment on the strength of the response. He did not.
The respondents submitted that the exchange needed to instil fear in the applicant or inflict damage on her to amount to sexual harassment. The Tribunal rejects this submission. The statute does not limit the definition of sexual harassment in the manner submitted. The 1989 decision of the Federal Court (Hall v Sheiban Pty Ltd (1989) 85 ALR 503 at 531) referred to support the submission does not require such a finding. Indeed, the addition of the word "offended" makes clear that the objective test can be satisfied without the need for fear or actual damage.
Finally, the respondents submitted that that the objective test could not be satisfied because the exchange happened in the open, during a busy time and Mr Welsh spoke in a normal voice. The Tribunal rejects this submission. Offense, humiliation or intimidation do not only occur in private and do not require any particular tone.
The Tribunal finds the complaint of sexual harassment arising from the incident at the trolley substantiated because the language used by Mr Welsh is that of a request for sexual favours or a sexual advance or conduct of a sexual nature and that it was unwelcome is clear from the unchallenged response of Mrs Hughes.
Findings: brushing up
Mrs Hughes has also complained that Mr Welsh made two unwelcome sexual advances by brushing up against her. In her complaint, she alleged this occurred between June and August 2010 and in her Points of Claim they occurred between January 2010 and August 2010. In her second statement, she said that one occasion when Mr Welsh brushed up against her was in one of the motel rooms. She said she ignored it, thought nothing of it and wasn't sure his actions were intentional.
Mrs Hughes's evidence does not support the claim of sexual harassment. There is no evidence that it was conduct of a sexual nature or that it was unwelcome. In these circumstances, a reasonable person would not have anticipated a response of feeling offended, intimidated or humiliated. Further, the incidents were claimed in the Points of Claim to have taken place between January and August 2010. The unchallenged evidence is that the second and third respondent did not commence work until June 2010.
The Tribunal dismisses these two complaints of sexual harassment.
Sexual harassment: vicarious liability
The evidence
Mrs Hughes claims that the Club, by its Board and motel committee, is vicariously liable for the sexual harassment by Mr Welsh.
The first issue is the knowledge of the committee members of Mrs Hughes' complaint, and thus, whether the committee members arrived the following day to address a complaint by Mrs Hughes on behalf of another housemaid or to address her complaint against Mr Welsh.
Following our findings about the comment made by Mr Welsh at the trolley, we accept that Mrs Hughes rang Mr Schatz to complain about that conduct rather than on behalf of another. It is unlikely that she would not have raised the conduct in respect of herself when she had responded so forcefully to it, earlier that same day, and told other housemaids about it.
Neither Mr Schatz nor Mr Newton impressed the Tribunal has having a reliable recollection of the events which occurred in August 2010.Their accounts for their presence at the motel were not consistent with each other.
In his statement, Mr Newton said they were there because some of the staff did not like the language used around the motel and that something was said about Mr Welsh flicking one of the 'girls' with a tea towel. In evidence he said there wasn't very much said and that Mr Welsh volunteered that he had flicked a tea towel at one of the staff. He also said that he had heard of the incident at the trolley. However, he was not asked in cross examination and did not volunteer when he acquired that information. In re-examination he said it was August 2010 'when the first initial complaint came in' or thereabouts, and then amended that to 2011. He then said the first he had heard of it was when the complaint was forwarded by the Anti- Discrimination Board.
Mr Newton said that Mrs Welsh was not there the day the committee visited. He did not have a discussion with her about the complaints raised by the housemaids.
Mr Schatz said in his statement that Mrs Hughes rang him and said that another housemaid had been verbally threatened by Mr Welsh. He said that he did not hear about the incident about the trolley until 'the last couple of months'. In evidence, he said that the housemaids raised the issue of poor language around the motel.
Mr Schatz said he was not a member of the Board and later in evidence, said he would need to check whether or not he was at the time of the meeting.
The Tribunal is satisfied that Mrs Hughes told Mr Schatz of the incident at the trolley on the day it occurred and that Mr Schatz and the other two committee members attended the next day to deal with that complaint. The Tribunal does not accept the evidence of Mr Schatz or Mr Newton as to when they first knew of the complaint by Mrs Hughes. Their evidence on this issue was unsatisfactory.
The second issue is what happened after the meeting with the housemaids. The evidence is that the committee members spoke with Mr Welsh in general terms about language around the motel. Mrs Hughes evidence is that things settled down with Mr Welsh after that time.
The third issue is whether Mr Newton had a conversation with Mrs Hughes on that day in which he said the words attributed to him by Mrs Hughes about Mr Welsh having had prior complaints of sexual harassment.
Mr Newton denies the conversation and any knowledge of prior complaints against Mr Welsh. Mr Welsh denies having ever being subject to a sexual harassment complaint. This issue is relevant to the claim by Mrs Hughes that the Board is vicariously liable for the sexual harassment because its members knew there had been previous complaints against Mr Welsh.
The Tribunal is not satisfied on the balance of probabilities, and while the Tribunal is not bound by the rules of evidence, the guidance provided by s.140 of the Evidence Act 1995, that the Board knew of previous complaints about Mr Welsh. There is no evidence which supports Mrs Hughes's account and Mr Newton denies any such knowledge and Mr Welsh denies any prior complaint.
The fourth issue is the steps taken by the first respondent to ensure staff were aware of their responsibilities and obligations in relation to sexual harassment in the workforce.
Mr Schatz gave evidence that each staff member had been given a handbook that dealt with behaviour in the workplace. There is no evidence as to the contents of that handbook.
The provisions
Vicarious liability for sexual harassment extends to employers under s.53 of the Act. It states:
(1) An act done by a person as the agent or employee of the person's principal or employer which if done by the principal or employer would be a contravention of this Act is taken to have been done by the principal or employer also unless the principal or employer did not, either before or after the doing of the act, authorise the agent or employee, either expressly or by implication, to do the act.
Section 53(3) provides a defence to vicarious liability. It states:
Despite subsection (1), a principal or an employer is not liable under that subsection if the principal or employer took all reasonable steps to prevent the agent or employee from contravening the Act.
In Borg v Commissioner, Department of Corrective Services & Anor[2002] NSWADT 42, the following was said in respect of s.53:
94 In M v R Pty Ltd (1988) EOC 92 - 229 the then Equal Opportunity Tribunal (Graham DCJ presiding) discussed the various ways in which an employer could be found to have personally breached s 25(2) of the Act. At 77, 173 the Tribunal listed the following four ways (adding that the list was not intended to be exhaustive):
(1) Where the relevant discriminatory act or conduct is personally performed by the employer.
(2) Where, in the case of an incorporated entity, the relevant discriminatory act or conduct is performed by a senior official whose conduct is to be identified as being that of the incorporated entity because he or she represents the "mind or will" of that entity.
(3) Where the relevant discriminatory act is that of a person or persons whose duty it is to, or who customarily or usually has the function of, afford(ing) terms and conditions of employment to the employee alleging discrimination.
(4) Where the relevant discriminatory act or conduct is that of employees not in any of the three earlier categories, but whose conduct is known to any of the persons in those categories and, by active condonation or inactivity, no prompt or adequate steps are taken by or on behalf of those in any of the first three categories to rectify the adverse working conditions thus afforded to the employee.
95 In Bogie v The University of Western Sydney the Tribunal (Graham DCJ presiding) at 78, 147 expanded upon the third category listed above by giving examples of the duties carried out by an employee who customarily or usually has the function of affording terms and conditions of employment to the employee alleging discrimination. The examples given were "dismissal or transfer, or the supervision and / or provision of the day-to-day working environment".
The applicant relies on Dee v Commissioner of Police, NSW Police & Anor(No 2)[2004] NSWADT 168 to support the submission that the Club did not take active steps to ensure that employees were aware of their responsibilities. In that decision, the NSW Police were found to have taken the complaints of sexual harassment made by the applicant seriously and promptly investigated them, however the steps they took were found to be ineffectual and not sufficient to end the sexual harassment.
The Tribunal has found that Mrs Hughes contacted Mr Schatz soon after the sexual harassment occurred and the Mr Schatz in turn contacted the other two members of the committee and all three attended at the motel the following morning. The evidence as to precisely who spoke to who is in unclear, with witnesses varying in their recollection of the events of the morning. There was no dispute, however, that the committee members spoke with Mr Welsh after speaking to the housemaids about the comments or complaints made by the housemaids and that there were no further incidents with Mr Welsh following that day.
While it is the case that Mr Welsh was an employer with power over the working conditions of Mrs Hughes, and the evidence as to steps taken by the first respondent to make its employees aware of their obligations was of one handbook, the contents of which are unknown, the Tribunal is satisfied that the committee members responded swiftly to Mrs Hughes complaints and that their intervention the following day resulted in no further incidents of sexual harassment. It is difficult to envisage what more an employer could have done, short of prevention. Further, it was the first occasion on which a complaint was brought to their attention.
Accordingly, the Tribunal dismisses the complaint that the first respondent is vicariously liable for the actions of Mr Welsh, the second respondent.
Victimisation claim
The evidence
The Points of Claim gave the following particulars of victimisation which occurred following Mrs Hughes making a complaint to the committee members and/or the Board of the Club:
a) Mrs Welsh did not speak to Mrs Hughes
b) Mrs Welsh ignored attempts by Mrs Hughes to speak to her
c) Mrs Welsh unreasonably gave Mrs Hughes extra work
d) Following an issue arising regarding the correct rate of pay for doing trolley work, Mrs Welsh told Mrs Hughes "you are a smart arse but I have no problems with your work" and
e) Mrs Hughes was unreasonably dismissed by Mrs Welsh.
Mrs Hughes stated in her first statement that after the incident at the trolley in August 2010, Mrs Welsh started acting "funny", only speaking to her when she wanted something and "snapping back at her". She gave no evidence that Mrs Welsh gave her extra work, unreasonably or otherwise.
In December 2010 she put an additional 15 minutes on her time sheet for her trolley allowance. The trolley allowance had been paid under the previous management but ceased when the new managers took over. Following that, Mrs Hughes was not given work for four days or so and then approached Mrs Welsh, apologised "if there were any difficulties" and asked if she still had a job. She was told by Mrs Welsh that "you and Kris [Mrs Duff] are trouble together". Mrs Hughes said she felt victimised for adding 15 minutes to her times sheet and that an excuse was found to put her off because of her complaint of sexual harassment against Mr Welsh.
In her second statement, Mrs Hughes said that she was not terminated or stood down; she was left in limbo with her employment. She expanded upon the discussion with Mrs Welsh in December 2010 and said that Mrs Welsh said to her, among other comments "I am not putting up with this anymore and you are a smart arse. I am sick of the whingeing". When asked whether she could have her job back, Mrs Welsh said she had not made up her mind.
Mrs Duff gave evidence that on a Friday in December 2010, after finishing her work she signed off for the two hours she had worked and added 15 minutes for preparing the trolley on the basis that she did not have a break that day. That was the first time she had claimed the 15 minutes.
She then was not called for work for several days. She went to the motel to speak with Mrs Welsh about it. Mrs Duff said Mrs Welsh told her that on Thursday they had had too many smoke breaks and that each of the housemaids that day had signed off for an extra 15 minutes, to be "smartarses". Mrs Duff apologised, gave an explanation and was told to come back to work in the morning.
Mrs Sue Wheeler was aware that they had been paid for 15 minutes setting up the trolley under the previous management, but not under the current management. Mrs Sue Wheeler said she was 'laid off' for four days and while she was not told why, she presumed it was because she put 15 minutes extra on her timesheet, because they did not have a smoke break that day. She apologised to Mr Welsh for whatever it was that she did. She then worked the next day.
Mr Welsh gave evidence that Mrs Hughes was put off because she falsified her time sheets, however, she was not alone in doing that, the others came back and apologised and Mrs Hughes did not.
Mr Schatz gave evidence that in December 2010 he was told by Mrs Welsh that there had been an issue with three staff and their timesheets and that two had apologised and were back on the roster and the third had not and would not be put back on the roster.
Mr Newton was also aware of the issue in December, in the same terms as set out by Mr Schatz.
Mrs Dianne Welsh swore an Affidavit and gave evidence. In December 2010, Mrs Welsh noticed that three of the staff had added 15 minutes to their time sheets and had given her the "cold shoulder" the previous day when she had complained about their smoke breaks. She did not call them in for work on the following days. Four days later, Mrs Duff apologised and the next day Mrs Sue Wheeler apologised and each was put back on the roster. Two days later Mrs Hughes came to see her and she, Mrs Welsh said "when you and Chris (Mrs Duff) are together, you carry on...last week you refused to speak to me". Mrs Hughes offered no apology.
In oral evidence, Mrs Welsh said she did not put Mrs Hughes on because she had no remorse and no respect and she did not apologise. Mrs Welsh said "do you think after all this I could have her back". She explained that "all this" was how she spoke about her husband and herself and all the lies she put in her statement. She gave evidence that she did not know until 2011 of the complaint and did not form that view that she would not have her back for that reason in December 2010.
She was not aware of the complaint by Mrs Hughes until she received the "documents from the solicitor". There was no evidence as to when that occurred. The President's report reveals that on 3 March 2011 the Anti- Discrimination Board wrote to Mr and Mrs Welsh notifying them of the complaint made by Mrs Hughes.
Mrs Hughes submitted that Mrs Welsh knew of the complaint by Mrs Hughes to the committee and relies upon the evidence given by Mrs Welsh, set out above.
The respondents submitted that the claims that Mrs Welsh were cold and standoffish are not a detriment and do not constitute victimisation. Further, that there is no evidence that either Mr or Mrs Welsh knew of any complaint made by the applicant until after it was lodged with the Anti-Discrimination Board in January 2011.Mrs Hughes was 'put off' in December 2010 because she claimed the extra 15 minutes and was not apologetic or contrite, as the other two housemaids were. The respondents submitted that the evidence given by Mrs Welsh that "Do you think after all this I'd call her back" was in relation to belief at the time of the hearing in March 2012.
The provisions
Victimisation is defined in s.50 as follows:
(1) It is unlawful for a person ("the discriminator") to subject another person ("the person victimised") to any detriment in any circumstances on the ground that the person victimised has:
(a) brought proceedings against the discriminator or any other person under this Act,
(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act,
(c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or
(d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person,
or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.
(2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith.
In Leibeck v Toll Transport Pty Ltd [2012] NSWADT 19, the Tribunal said as follows:
73The Appeal Panel held in Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 at [37] that the question to be asked is whether the fact that the applicant had done " one of the things listed in s 50(1)(a) to (d) was at least one of the 'real', 'genuine' or 'true' reasons for being subjected to a detriment. As for complaints of discrimination, for that to be the case, that reason must have been a reason which, either alone or in combination with other reasons, was the true basis for the treatment. Depending on the circumstances, the motive and purpose of the alleged discriminator, as well as the effect on the aggrieved person, may all be relevant."
The first issue is when Mrs Welsh knew that Mrs Hughes had made a complaint against her husband. There is no evidence that any person told Mrs Welsh of the complaint at or around the time it was made to the committee in August 2010. She was not present the day the committee members attended the motel. Her evidence is that she knew when she received the documents from the Anti-Discrimination Board via her solicitors, which must have occurred no earlier than March 2011.
Mrs Hughes evidence is that after the incident with the trolley, "things settled down". She continued to work for some four months without any real incident. The evidence is consistent as to the reason for the three housemaids being given no work for some days in December. They all, for the first time, added 15 minutes to their time sheets. Two were put back of because they apologised. Mrs Hughes was not, and according to her evidence, she was given a reason which had nothing to do with having made a complaint.
The Tribunal is satisfied that the evidence of Mrs Welsh about her reasons for not offering work: "after all this" relates to events after March 2011 and into the hearing in 2012, that is when she received the written complaints and statements. At this time, she had already made and implemented the decision not to offer Mrs Hughes any work. The Tribunal is not satisfied that the true, real or genuine reason for, in the terms of the points of claim, being dismissed in mid December 2010 was the complaint Mrs Hughes made to the committee in August 2010.
Further, the Tribunal is not satisfied that the conduct that Mrs Hughes attributed to Mrs Welsh between August and December 2010 occurred and if it did, is not satisfied that that conduct amounts to a 'detriment' as required by the legislation.
The Tribunal dismisses the complaint of victimisation. It follows that it dismisses the complaint that the Club and/or Board are vicariously liable for any victimisation.
Damages
The applicant claims the sum of $60,000 by way of damages for the complaint which has been upheld. The particulars of injury and loss claimed are depression, feeling unsafe working with men and consequent difficulty findings alternate employment and loss of income.
Section 108 relevantly provides as follows
(1) In proceedings relating to a complaint, the Tribunal may:
(a) dismiss the complaint in whole or in part, or
(b) find the complaint substantiated in whole or in part.
(2) If the Tribunal finds the complaint substantiated in whole or in part, it may do any one or more of the following:
(a) except in respect of a matter referred to the Tribunal under section 95 (2), order the respondent to pay the complainant damages not exceeding $100,000 by way of compensation for any loss or damage suffered by reason of the respondent's conduct,
An appeal panel in Commissioner of Police, NSW Police v Mooney (No.3) [2004] NSWADTAP 22 considered past judicial statements in relation to damages and concluded as follows:
27...The AD Act creates statutory rights and obligations. Section 113(1)(b)(i) of that Act vests the Tribunal with a statutory power to make compensatory orders following a finding that a complaint alleging a contravention of one of those statutory rights has been substantiated. Common law rules concerning the manner in which a court should determine whether damages claimed by a plaintiff in an action in tort are attributable to the conduct of the defendant may guide or assist the Tribunal when determining whether any loss or damage claimed by an applicant in a discrimination case was suffered by reason of the respondent's conduct, but they are not controlling.
28 Support for this view is found in decisions of the High Court concerning the means by which a court should determine whether a defendant may be held liable to compensate a successful plaintiff for loss or damage sustained by reason of a contravention of various provisions in the Trade Practices Act 1974 (Cth). That Act creates numerous statutory rights and obligations. Section 82 of the Act permits "a person who suffers loss or damage by conduct of another person that was done in contravention of a provision of Part IV or V" to recover compensation for that loss or damage.
29 The High Court considered the meaning of s 82 of the Trade Practices Act 1974 (Cth) in Henville v Walker (2001) 206 CLR 459. Gleeson CJ explained how that section should be interpreted:
Section 82 of the Act is the statutory source of the appellants' entitlement to damages. The only express guidance given as to the measure of those damages is to be found in the concept of causation in the word "by". The task is to select a measure of damages which conforms to the remedial purpose of the statute and to the justice and equity of the case...The principles of common law, relevant to assessing damages in contract or tort, are not directly in point. But they may provide useful guidance, for the reason that they have had to respond to problems of the same nature as the problems which arise in the application of the Act. They are not controlling, but they represent an accumulation of valuable insight and experience which may well be useful in applying the Act.
30 In that case the entire Court held that when a defendant has been found to have contravened a relevant provision in the Trade Practices Act 1974, s 82 permits an order for the payment of damages in response to the defendant's contravention of the Act even when there are concurrent causes of the plaintiff's claimed loss. After noting (at 490) that "[t]he common law concept of causation recognises that conduct that infringes a legal norm may be causally connected with the sustaining of loss or damage even though other factors may have contributed to the loss or damage", McHugh J went on to state (at 496, fn 98) that in the case before him, "[t]he issue is not what caused the loss, but whether the defendant's conduct can be properly said to be a cause of the loss".
31 McHugh stated (at 493) that the "principles that assist tribunals of fact in deciding causation issues" may be described as follows:
If the defendant's breach has "materially contributed" to the loss or damage suffered, it will be regarded as a cause of the loss or damage, despite other factors or conditions having played an even more significant role in producing the loss or damage. As long as the breach materially contributed to the damage, a causal connection will ordinarily exist even though the breach without more would not have brought about the damage. In exceptional cases, where an abnormal event intervenes between the breach and damage, it may be right as a matter of common sense to hold that the breach was not a cause of damage. But such cases are exceptional.
The question for this Tribunal, having regard to the principles set out above is whether the sexual harassment by Mr Welsh materially contributed to the loss or damage Mrs Hughes has suffered.
Mrs Hughes said in her statement that her husband had to leave his permanent job and take a significant pay cut, she has been unable to assist her son with his university expenses and she has been taking anti-depressant medication and has lost confidence and self-esteem.
The Tribunal does not accept that the sexual harassment by Mr Welsh materially contributed to the loss of wages suffered by Mrs Hughes after she was not offered work by Mr and Mrs Welsh after December 2010. She worked as a housemaid for some four months after the incident of sexual harassment. The Tribunal has found that her not being offered work was not related to her having made a complaint of sexual harassment. The evidence is that Mrs Hughes would willingly have returned to work in December and thereafter if she had been asked to. Hence, her loss of wages arose from her not being offered work and not from the sexual harassment by Mr Welsh.
The Tribunal has evidence from a medical practitioner, who, from his letterhead has membership of the College of Obstetricians and Gynaecologists that Mrs Hughes consulted him on 28 April 2011 with symptoms of depression and was treated by medication. In evidence, Mrs Hughes said she had not suffered depression before that date.
Some eight months had passed since the incident of sexual harassment and the suffering of depression. An intervening act during that period was that Mrs Hughes was no longer asked to work at the motel. There is no doubt that she and her family suffered loss as a result of Mrs Hughes no longer being employed. However, the Tribunal is not satisfied that it was the act of sexual harassment which materially contributed to those losses or the diagnosis of depression.
The Tribunal does accept that Mrs Hughes suffered injury to her feelings and distress because of the sexual harassment by Mr Welsh. As Wilcox J stated in Hall v Sheiban (1985) ALR 503 at 543 the task of determining the appropriate level of damages in a case of unlawful discrimination is not without difficulty:
Damages for such matters as injury to feelings, distress, humiliation and the effect on the complainant's relationship with other people are not susceptible to mathematical calculation...To ignore such items of damage simply because of the impossibility of demonstrating the correctness of any particular figure would be to visit an injustice upon a complainant by failing to grant relief in a proven item of damage.
The Tribunal is mindful that awards should not be minimal, because this would tend to trivialise or diminish respect for the public policy to which the Anti-Discrimination Act gives effect (see Alexander v Home Office (1988) 2 All ER 119 at 122). The Tribunal is satisfied that the injury to Mrs Hughes was not of a lengthy duration and further, that this matter does not fall towards the more serious instances of sexual harassment.
Taking into account these matters, the Tribunal orders that Mr Welsh pay Mrs Hughes the sum of $7,500.
In the event that either party wishes to make an application for costs, the following Direction applies:
Applicant to file and serve any submissions in relation to costs within 14 days. Respondent to file and serve any submissions in relation to costs, and in reply to the applicant's submissions, within a further 14 days. Matter to be determined on the papers unless either party applies for an oral hearing, in which case that application will be considered. Liberty to either party to apply on 2 days' notice.
The following orders are made:
The complaint of sexual harassment by Mr Welsh in August 2010 is substantiated.
Mr Welsh is ordered to pay the applicant $7,500 within 28 days.
The complaint of two accounts of sexual harassment by Mr Welsh between January and August 2010 is dismissed.
The complaint of victimisation against Mrs Welsh is dismissed.
Two complaints of vicarious liability by the first respondent are dismissed.
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Decision last updated: 09 August 2012
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