Human Rights and Equal Opportunity Commission v Mathews, R.G.H.

[1993] FCA 233

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JUDGMENT MO. . .m oom. . . . . . . em* as"-

C A T C H W O R D S

DISCRIMINATION LAW - discrimination on grounds of sex - sexual harassment - application to enforce Commission's determination

- necessary for court to hear evidence as to merits of

complaint in order to decide whether to 'enforce' the
determination - repeated unwelcome conduct of a sexual
nature - complainant had reasonable grounds for believing that
objection to the conduct would disadvantage her in connection
with her employment - ambit of Commissioner's statutory

function considered.

Sex Discrimination Act 1984-1991 ss. 5, 28, 81 and 82

Aldridae v. Booth (1988) 80 A.L.R. 1

v. Sheiban Ptv Ltd (1989) 20 F.C.R. 217

Mavnard v. Neilson (unreported judgment of Wilcox J. of 27 May

1988)

21 APRIL 1993

HUBlAN RIGHTS AND EOUAL OPPORTUNITY COMMISSION v. RUSSELL
GORDON HAIG MATHEWS & ANOR

No. QG79 of 1991

SPENDER J.

BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA	)
QUEENSLAND DISTRICT REGISTRY	1 No. G79 of 1991
GENERAL DIVISION	1

BETWEEN: HUMAN RIGHTS AND EOUAL OPPORTUNITY COMMISSION

Applicant

AND: RUSSELL GORDON HAIG MATHEWS

First Respondent

AND: AAH-REM PTY LTD

Second Respondent

MINUTES OF ORDER

JUDGE MAKING ORDER:	Spender J.
DATE OF ORDER:	21 April 1993
WHERE MADE:	Brisbane
THE COURT ORDERS THAT:

1.    The first respondent pay to the complainant the sum of $6,000.00.

2. The first respondent pay the costs of the
application, including reserved costs, to be taxed
if not agreed.

NOTE:	Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA	1
QUEENSLAND DISTRICT REGISTRY	1  No. G79 of 1991
GENERAL DIVISION	1

BETWEEN: HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

Applicant

AND: RUSSELL GORDON HAIG MATHEWS

First Respondent

AND: AAH-REM PTY LTD

Second Respondent

CORAM:	Spender J.
PLACE :	Brisbane
DATE :	21 April 1993

REASONS FOR JUDGMENT

This is an application by the Human Rights and Equal Opportunity Commission ('the Commission') pursuant to the then provisions of S. 82(1) of the Sex Discrimination Act 1984

( 'the Act') to enforce a determination of the Commission made

on 24 January 1991 that Russell Gordon Haig Mathews and AAH-
REM Pty Ltd pay to one Jo-Anne Baker ('the complainantr)

damages by way of compensation in the sum of $6000.00 in

relation to the "stress, humiliation, embarrassment and	financial loss" caused to her, together with interest thereon
in such sum as the court allows, as well as an order for the costs of and incidental to the application in the Federal Court.

The Commission was established by the Act.

In a letter dated 25 July 1989 MS Barker lodged a

complaint under the Act with the Commission's Queensland

Regional Office in Brisbane. The first paragraph o f that

handwritten letter stated:

" I was employed by R u s s e l l Mathews who i s a

Director o f AAH-REM P t y L t d t r a d i n g a s TIPS for

Tax , 554 Lutwyche Road, Lutwyche . I f e l t I had

t o l e a v e m y employment w i t h h i m a s I f e l t

s e x u a l l y h a r a s s e d . I would l i ke the Commission

t o i n v e s t i g a t e m y c l a i m . "

The Act was substantially amended by the Sex

Discrimination and Other Leaislation Amendment Act 1992. These proceedings are concerned with the position prior to those amendments.

Section 5 of the Act provides:

" ( 1 ) F o r the p u r p o s e s o f this A c t , a per son ( i n

t h i s s u b s e c t i o n r e f e r r e d to a s the

' d i s c r i m i n a t o r ' ) d i s c r i n l i n a tes a g a i n s t a n o t h e r

p e r s o n	( i n	t h i s	subsection	r e f e r r e d	t o a s	the
' a g g r i e v e d p e r s o n ' )	on	the	ground	o f	the sex	o f
the	a g g r i e v e d	p e r s o n	i f ,	by	r e a s o n	o f :

( a ) the sex o f the a g g r i e v e d person;

(b) a c h a r a c t e r i s t i c t h a t a p p e r t a i n s g e n e r a l l y

t o p e r s o n s o f the sex o f the a g g r i e v e d

p e r s o n ; or

( c ) a c h a r a c t e r i s t i c t h a t i s g e n e r a l l y impu ted

t o p e r s o n s	o f	the	sex	o f	the	a g g r i e v e d
p e r s o n ;

the	d i s c r i m i n a t o r	t r e a t s	the	a g g r i e v e d	p e r s o n
less	f a v o u r a b l y	t h a n ,	i n c i r c u m s t a n c e s	t h a t	a r e
the	same	or	a r e not	m a t e r i a l l y d i f f e r e n t ,	the

d i s c r i m i n a t o r t r e a t s or would t r e a t a per son o f

the o p p o s i t e sex.

( 2 ) F o r the p u r p o s e s o f t h i s A c t , a per son ( i n

this s u b s e c t i o n r e f e r r e d to a s the

' d i s c r i m i n a t o r ' ) d i s c r i m i n a t e s a g a i n s t a n o t h e r

p e r s o n ( i n th is s u b s e c t i o n r e f e r r e d t o a s the

'aggrieved person') on the ground o f the sex o f the aggrieved person i f the discriminator requires the aggrieved person t o comply with a requirement or condition :

( a )	with which a substantially higher proportion o f persons o f the opposite sex t o the aggrieved person comply or are able t o comply;
(b)	which is not reasonable having regard to the circumstances o f the case: and
(c)	with which the aggrieved person does not
or i s not able t o comply. "

Section 28 relevantly provided:

" ( 1 ) I t i s unlawful for a person t o harass

sexually:

( a )	an employee o f that person;
(b)	an employee of a person by whom the first- mentioned person i s employed; or
. . .

( 2 ) I t i s unlawful for a person t o harass

sexually:

(a) a commission agent or contract worker of

that person;

(b) a commission agent or contract worker of a

person o f whom the first-mentioned person

i s a conunission agent or contract worker;

or

( C ) a person who i s seeking t o become a

commission agent or contract worker o f the first-mentioned person or o f a person o f whom the first-mentioned person i s a

commission agent or contract worker.

(3) A person shall , for the purposes o f t h i s section, be taken t o harass sexually another person i f the first-mentioned person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, t o the other person, or engages i n other unwelcome conduct o f a sexual nature i n relation t o the other person, and:

(a) the other person has reasonable grounds for believing that a rejection o f the advance, a refusal o f the request or the taking o f objection t o the conduct would disadvantage the other person i n any way i n connection with the other person's

employment or work or possible employment

or possible work; or

(b) a s a resul t of the other person's

rejection o f the advance, refusal of the request or taking o f objection t o the conduct, the other person i s disadvantaged i n any way i n connection with the other person's employment or work or possible employment or possible work.

( 4 ) A reference i n subsection ( 3 ) to conduct o f a sexual nature i n relation to a person includes a reference t o the'making, to , or i n the presence o f , a person, o f a statement o f a

sexual nature concerning that person, whether	"
the statement i s made oral ly or i n writing.

Section 52 provides for the Sex Discrimination Commissioner to inquire into matters and endeavour by conciliation to effect a settlement.

After unsuccessful attempts to conciliate the complaint, the Sex Discrimination Commissioner referred the complaint to the Commission in July 1990, as provided for by section 57.

Pursuant to S. 60 of the Act, the President of the Commission, Sir Ronald Wilson, appointed Commissioner Kevin

O'Connor as hearing commissioner for the inquiry.

On 20 September 1990 the Registrar of the Commission wrote to "The Managing Directors, AAH-REM Pty L t d , 14 Deodar

Court, Mapleton Qld 4560". While the address referred to in

that letter had been the registered office of the company from September 1985 to September 1987, there had been two further changes in the registered office of the company after that

period. At the time of the letter the registered office was Level 2, Cnr. Hamilton Road and Corrie Street, Chermside. As at the date of the letter, the three directors of the company were Mr Mathews and his parents, Mr R. G. H. Mathews Snr. and Mrs V. A. Mathews. Mr Mathews, the first respondent, resigned as a director on 21 November 1990. The letter contained directions by the Commissioner 'arising from the matters contained in the statement of issues, as well as making directions as to statements and affidavits of witnesses intended to be called. The letter stated:

" At this stage the date and venue for the Inquiry have not been finalised. You will be advised of presiding immediately they are known. " these details and the name of the persods

On 28 September Mr Mathews wrote to the Commission at its Sydney address and the letter commenced:

" Your note on this matter has a heading with two respondents, namely: myself and AAH-REM PTY LTD. The registered address for the company AAH-REM PTY LTD is the same address as that to which you have sent the correspondence to me. Please

ensure that all material for AAH-REM PTY LTD is	addressed to this address: Level 2, Cnr Hamilton
Rd and Corrie St, Chermside Q 4032. "

On 15 October 1990 the Commission wrote to Mr Mathews at that address, raising a number of matters and the letter said in part:

" Correspondence was also sent to you at your Chermside address and to the other directors,

Mr and M2-S R and V Mathews, care of their home

address, as the Commission was not confident correspondence would reach the company through

its 'registered address'. Indeed, the letter sent to the registered office was returned to us marked 'Left address...return to sender'.

I am pleased that I now have a reliable address for the company. In accordance with your advice all further correspondence for AM-REM Pty Ltd will be forwarded to Level 2, Cnr Hamilton Road and Corrie Street, Chermside, Queensland 4032. "

Notwithstanding the representation in the last

quoted paragraph, no further correspondence of any sort was

sent to AAH-REM ~ t y ~ t d .

The Registrar on 20 December 1990 wrote to Mr Mathews advising the dates and place for hearing. The indicated dates were not convenient to Mathews and on 14 January 1991 the Registrar advised Mr Mathews that the matter had been set down for hearing on 24 January 1991, the place of the hearing, and that the person who was to conduct the hearing of the public inquiry would be Commissioner

0 'Connor.

Both the letter of 20 December 1990 and that of 14 January 1991 were addressed to Mr Mathews personally. The parents, Mr and Mrs Mathews, are in their seventies and the evidence establishes that they had no direct or personal involvement in the operation of the company or in any of the matters the subject of complaint and inquiry. The company had a paid-up capital of $3.00 and the evidence indicates that at all material times it had substantial liabilities. A sequestration order was made against Mr Mathews on 22 November

1990 on the petition of Beneficial Finance Limited. There is

room in those circumstances to question the utility of the Commission initiating and pursuing the proceedings in the Federal Court.

On 24 January 1991 Commissioner O'Connor conducted

an inquiry into the complaint of Jo-Anne Barker. Oral

evidence was called by the complainant and her parents, and Mr

Mathews cross-examined the complainant.

The Commission made the following findings:

" I find the complaint substantiated.

Vicarious Liabilitv of Em~lover

I am not satisfied that the secondnamed respondent, AAH-REM Pty Ltd, has discharged its responsibilities under s.106(2) of the Act as

the e~nployer of the complainant .

Accordingly pursuant to S. 106(l) (b) of the Act, AAH-REM Pty Ltd should also be held liable for the actions of the firstnamed respondent.

Declaration

Pursuant to section 81 (l) (b) (ii) of the Sex

Discrimination Act I declare that the respondents Mr Mathews and AAH-REM Pty. Ltd. should refrain from any further contact or communication with the complainant and with the family of the complainant and any employers of her or her husband.

Pursuant to section 81 (l) (b) (iv) of the Act _I declare that the respondents, M r Mathews and AAH-REM Pty. Ltd. should pay to the complainant damages by way of compensation in the sun1 of $6,000 in relation to the stress, humiliation, embarrassment and financial loss caused to the complainant. "

In relation to what is said to be the first declaration, there was evidence put before the Commission of post-employment conduct on the part of Mr Mathews. The Commissioner acknowledged:

..

" That conduct i s not conduct that I can deal

with under S . 28 o f the Act. "

He said, however, that there were "provisions i n the Act which are relevant t o the matter. One i s the Commission's

power t o make a declaration t o re frain from continuing conduct and the other i s the victimisation offence which i s contained

i n Section 94 o f the Act. "

In my view, I doubt whether the making of a declaration in the tenor of the first declaration was within the powers of the Commission in the then S. 81. The Commissioner then indicated that he proposed to refer material to the Director of Public Prosecutions and the Federal Police, in relation to the offence of victimisation. He referred

material to the relevant industrial awards body in Queensland	for examination in respect of compliance with awards and
suggested that the conduct of the first respondent ought to be made known to the Commonwealth Employment Service ('C.E.S.') with a view to it considering what future relationship it should have with any business under his management.

While these a c t i o n s no d o u b t were m o t i v a t e d b y

concern for the i n t e r e s t s o f the c o m p l a i n a n t and o t h e r s , they

w e r e n o t p a r t o f h i s s t a t u t o r y f u n c t i o n .

S e c t i o n 8 1 o f the A c t r e l e v a n t l y p r o v i d e d :

"	( l )	A f t e r h o l d i n g a n	i n q u i r y ,	the	Commission
may:

( a )	d i s m i s s	the	c o m p l a i n t	the	s u b j e c t	o f	the
i n q u i r y ;	or

( b ) f i n d the c o m p l a i n t s u b s t a n t i a t e d and make

a d e t e r m i n a t i o n , wh ich m a y i n c l u d e a n y one

o r more o f the f o l l o w i n g :

( i ) a d e c l a r a t i o n t h a t the r e s p o n d e n t

h a s engaged i n c o n d u c t r e n d e r e d

u n l a w f u l by t h i s Act and s h o u l d not

r e p e a t	or	c o n t i n u e	s u c h	u n l a w f u l
c o n d u c t ;

(ii) a d e c l a r a t i o n t h a t the r e s p o n d e n t

s h o u l d p e r f o r m a n y r e a s o n a b l e a c t

or c o u r s e o f c o n d u c t t o r e d r e s s a n y

loss or damage	s u f f e r e d by	the
c o m p l a i n a n t ;

...

( i v ) .... a d e c l a r a t i o n t h a t the

r e s p o n d e n t	s h o u l d	p a y	t o	the
c o m p l a i n a n t	damages	by	way	o f
c o m p e n s a t i o n	for	a n y loss	or	damage

s u f f e r e d by r e a s o n o f the c o n d u c t

o f the r e s p o n d e n t ;

. . .

(2 ) A d e t e r m i n a t i o n o f the Comn~is s ion under

s u b s e c t i o n	( 1 )	i s	not	b i n d i n g	or	c o n c l u s i v e
b e t w e e n	a n y	o f	the	p a r t i e s	t o	the

d e t e r m i n a t i o n .

(3) The Commission may, i n the m a k i n g o f a

d e t e r m i n a t i o n u n d e r s u b s e c t i o n ( l ) , s t a t e a n y

f i n d i n g s	o f	f a c t	upon	w h i c h	the	d e t e r m i n a t i o n
i s b a s e d .

( 4 ) The damage r e f e r r e d t o i n paragraph ( I ) (b)

i n c l u d e s i n j u r y t o the c o n ~ p l a i n a n t ' s f e e l i n g s

or h u m i l i a t i o n s u f f e r e d by the c o m p l a i n a n t .

Section 82 of the Act provided:

" ( 1 ) The Commission or c o m p l a i n a n t m a y

i n s t i t u t e a p r o c e e d i n g i n the Federa l C o u r t for

an o r d e r t o enforce a d e t e r m i n a t i o n made

p u r s u a n t t o s u b s e c t i o n 8011) or 8 1 ( 1 ) .

( 2 )	Where	the	F e d e r a l	C o u r t	i s s a t i s f i e d	t h a t
the	r e s p o n d e n t	h a s	engaged	i n	c o n d u c t	or

commi t t ed	an	a c t	t h a t	i s	u n l a w f u l	u n d e r	this
A c t ,	the	F e d e r a l	C o u r t	m a y	make	such	o r d e r s

( i n c l u d i n g a d e c l a r a t i o n o f r i g h t ) a s the

Federa l C o u r t thinks f it .

( 3 ) O r d e r s made by the Federa l C o u r t under

s u b s e c t i o n ( 2 ) m a y g i v e e f f ec t t o a

d e t e r m i n a t i o n o f the Commission. "

The written reasons of the Commission were dated 7 March 1991 and on 25 March 1991 Mr Mathews filed an application pursuant to the Administrative Decisions (Judicial Review) Act 1977 to have, inter alia, that decision reviewed.

On 6 June 1991 the Commission filed the present application. As I indicated in Aldridae v. Booth (1988) 80 A.L.R. 1 and as noted by Wilcox S. in Mavnard v. Neilson (unreported judgment, 27 May 1988), the course adopted by the

Act, of making the Commission's determination not binding upon	the parties, was no doubt ordained by the constitutional need
to avoid conferring upon a non-judicial body a part of the judicial power of the Commonwealth. It was thus necessary, in the absence of agreement between the parties, for this Court to hear evidence as to the merits of the complaint in order to determine whether it should " e n f o r c e " the determination made by the Commission on 7 March 1991.

In these proceedings oral evidence was given by the complainant and each of her parents and by two persons who were concerned with the processing of the complainant's original complaint to the Commission. Mr Mathews appeared on his own behalf, cxoss-examined those witnesses and gave evidence.

These proceedings really have two central issues. The first is one of fact as to what occurred during the complainant's employment, which depends on an assessment of the principal witnesses' credit and the second is the characterisation of those facts or findings.

I accept, generally, the evidence of the

complainant.

She commenced employment for AAH-REM Pty Ltd trading
as 'TIPS for Tax' at 554 Lutwyche Road, Lutwyche on 28

December 1988. She was then nineteen years of age and lived

at home with her parents in Ferny Hills. Before that time she	had whilst at school had two weeks work experience at a
reception desk at a hotel. She had worked part time at a local grocery store as a check-out operator on Thursday evenings and Saturday mornings for about a year whilst a student and between December 1987 and June 1988 as part of her Diploma of Business and Hospitality Services course conducted at the Queensland Agricultural College at Gatton worked as a waitress at Kooralbyn Valley Resort for between 3-60 hours a week. She graduated from Gatton in November 1988, having spent the two years of her diploma course living at the college or at the Kooralbyn Valley Resort.
Prior to 23 December 1988 she had attended the C.E.S. office to seek employment on several occasions after completing her course in November 1988. Through the C.E.S. office she saw an advertisement for office manager at 'TIPS for Tax'. She was encouraged to reply to the advertisement because of the statements "No experience necessary" and
"Training will be provided".
On 23 December 1988 she attended an interview at the premises of the second respondent and was interviewed by Mr Russell Mathews. The interview took about three hours. During the interview she completed an intelligence test and a number of forms including a form relating to tax file number were filled in. In the course of the interview, Mr Mathews asked the complainant to call him "Russell". He asked
questions about her family and many personal questions.
I am satisfied that in the course of the interview he asked her about whether she had a boyfriend, asked whether she and her boyfriend had any plans for the future, asked about what movies she liked to see and complimented her on her appearance.

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A t the c o n c l u s i o n o f the i n t e r v i e w he gave t o M S

Barker an employment agreement w h i c h was p a r t l y h a n d w r i t t e n

and p a r t l y t y p e d , and w h i c h was i n the f o l l o w i n g form:

AGREEMENT FOR EMPLOYMENT

I JO-AhWE BARKER.. . . . . . agree w i t h AM-REM PTY

LTD t r a d i n g a s T.I .P.S. a n d / o r nominee a s a

c o n d i t i o n o f employment t o u n d e r t a k e the

f o l l o w i n g c o u r s e s

2 ) Touch T y p i n g t r a i n i n g p r o v i d e d by AAH-REM

P t y L t d a n d / o r nominee f o r 20 h o u r s

t r a i n i n g .

3 ) Word P r o c e s s i n g t r a i n i n g p r o v i d e d by AdH-

REM P t y L t d a n d / o r nominee f o r 24 t o 40

h o u r s t r a i n i n g A t t a c h e V e r 3.10 a l l six

m o d u l e s and A t t a c h e t r a i n i n g @ 14 d a y s

t r a i n i n g i n t o t a l .

T o t a l cost o f t y p i n g , word p r o c e s s i n g &

a t t a c h e t r a i n i n g t o be $1,250-.

S i g n e d :	J .	B a r k e r
Date:	23.12.88	"

I n the c o u r s e o f making the h a n d w r i t t e n changes t o

the form he spoke o f ' A t t a c h e ' w h i c h i s a bookkeep ing computer

program.

I a c c e p t t h a t the c o m p l a i n a n t was t o l d by M r

Mathews :

" W h i l e y o u ' r e s t i l l p a y i n g me b a c k the $1250.00

which you owe me f o r the t r a i n i n g , I w i l l p a y

you on c a s u a l r a t e s so t h a t you w i l l s t i l l be

p a i d the same amount o f money t h a t you would

e a r n on normal wages. When you h a v e pa id b a c k

a l l the money I ' l l p u t you on permanent wages. "

She commenced employment on 28 December 1988 and worked from 8 o'clock in the morning until 5 o'clock in the afternoon with an hour's break for lunch.

In the front of the office was a long desk high counter with a return behind which was a small desk and chair for the complainant's use. There was a photocopier and a filing cabinet. The desk occupied by M r Mathews was petitioned off from the rest of office and was screened by a smoky glass panel facing the desk of the complainant. Directly behind Mr Mathews' office was a further area partitioned off from the main office. This area had a sink on the far wall and an 'Esky' on the floor beside it. I am satisfied that it also contained an inflatable mattress which was inflated on the first day of the complainant's attendance. There was no other sleeping accommodation visible in this room.

M r Mathews admitted in evidence that he lived in

these premises for approximately four nights a week. During

the period he stayed at the office he did not shower but

washed from a plastic bucket. He obtained hot water by boiling water in an electric jug. He admitted that he would wash his hair in the sink and he would shave in the sink. He said he had two suitcases in that room, one which contained sheets and pillows and a blanket and the other had clothes and a plastic bag for dirty clothes. These he said he would take to his parents' home at Mapleton at weekends and wash them there and bring them back.

At the rear of the building in which the office was located was a pair of toilets, one labelled 'Mens' or 'Gents' and the other labelled 'Ladiesr. He admits that while the complain~nt was working at the office he would occasionally use the ladies' toilet. He says that he had received objections from women as to his using the ladies' lavatory. He said that he preferred to use the ladies' lavatory when he did because it was cleaner.

In the first three days of the complainant's employment, (as indeed was the case for the whole of it), there was very little for her to do. She rearranged the stationery at her desk or in Mr Mathews' office while he talked. She became engaged to be married on 1 January 1989 and the position of the office routine was similar to that of the previous week. She commenced a training program on 6

January, which continued on the following days and in the	following week.
For part of the period during which the complainant was at the office, Mr Mathews was absent in Townsville. After his return and at his dictation, she wrote a statement:

" Any t r a i n i n g undertaken d u r i n g usual working

hours w i l l be made up a t a f u t u r e d a t e . Pay

r e c e i v e d o v e r and above payment f o r hours

worked i s an advance payment	f o r f u t u r e hours
worked. "

The dictated agreement concerning training times happened after the complainant had shown him a computer record of her training times. On his return from Townsville his behaviour towards her grew more personal and intimidating.

Towards the end of her employment, probably on 24 February 1989, she was invited by him to attend with him to the Police Complaints Tribunal. I am satisfied that in connection with that visit Mr Mathews told the complainant that it would demonstrate what happens to people who do the wrong thing to him. The proceedings in the Police Complaints Tribunal concerned a complaint made by Mr Mathews against certain policemen. At about that time she was also invited to accompany him to a penthouse suite where Mr Mathews said he was going to open his office. I am satisfied that he said "There's plenty of room", "There's a room for you and a room for me. You can stay in this room when you have to stay late or if you have to stay back to study".

I am also satisfied that on that day at about 5.30 p.m. when they were the only people in the building, Mr Mathews knelt in front of her and took her by the hand and said, "I want you to marry me. You must not discuss this with your parents. People would not understand. You niust keep it
to purse1	f. "

I accept that the complainant became very upset as a consequence of this conduct in the light of what had been the atmosphere of her employment during the preceding eight weeks. She spoke to her fiance that evening, and on the following Monday morning, 27 February, told her parents about the events

of the Friday. She was frightened of Mx Mathews, and did not

want to confront him. On her father's advice, she returned to the office at a time before it was expected that Mr Mathews would be there. Her father advised her to return anything which Mr Mathews had given to her. She returned a briefcase. She took her own personal possessions from the office and left the keys to the office with a resignation note on the table before she left. The papers which she said she took from the office related to her enrolment at a course at QTAC, her record of times worked on the computer and the photocopy of the Agreement for Employment which she had previously made.

On 27 February she received a series of telephone

calls from Mr Mathews which upset her considerably. In the

course of those conversations I am satisfied that Mr Mathews	told her she would have to come back to work because she owed
him money, and that before commencing work at Kingaroy on 20 March 1989 she had filled in forms with the office of the Department of Social Security and had described the reason for
leaving her employment as "sexual harassment " .
Shortly after the telephone conversations subsequent to her ceasing employment, on 2 March 1990 Mr Mathews sent two dozen red roses to her with a letter which said:

" Dear Jo-Anne:

I hope these roses help you feel bet ter .	You
deserve t o be happy.

I t i s pointless and destructive t o worry about that which you cannot change. Believe me, I do know exactly what i s worrying you and compared t o a l l the wonderful poss ib i l i t ies i n your

future it rea l ly i s so insianif icant .

C a l l me, talk to me. We both know you w i l l

feel so much bet ter .	Don't we?
Russell . "

The essence of the complainant's case, which I accept, is that throughout her employment she was subjected to continual questioning by Mr Mathews as to her personal life, that the questioning and conversation was heavy with sexual implications, and with assertions that she ought not to marry her fiance but that she would have a better future with the

losing her job, which was her first permanent employment. first respondent. She tolerated this behaviour for fear of

During the job interview prior to commencing employment, personal matters quite extraneous to the proposed employment were raised by Mr Mathews, including questions relating to her boyfriend and whether she would attend the movies with him. I am satisfied that during the course of her employment Mr Mathews would discuss personal matters with her ad nauseam, including her appearance, comments on her intelligence, whether social outings could be undertaken. During this period he frequently denigrated her fiance and offered her to take her on trips and social outings. I am satisfied that she was required to prepare coffee for him in the rear partition of the building where Mr Mathews had slept and where personal items were on view. M r Mathews admitted that on occasions when the complainant went into the staff room to make coffee he would come and stand in the doorway of the staff room and talk to her of personal matters. The complainant says she found this quite disturbing.

I am satisfied that Mr Mathews requested the complainant to braid his hair, a request which MS Barker refused to do. I find the request extraordinary and one which would engender disquiet in a nineteen-year-old employee who had to spend the whole working day in the company of Mr Mathews (and nobody else). Mr Mathews was considerably older than the complainant.

I am satisfied that there was never at any time any express request for sexual favours. I am also satisfied that at no time during the eights weeks of her employment did MS Barker make any direct or express complaint about any aspect of Mr Mathewsr conduct. I accept the complainant's evidence which appears in the following passage in the evidence before the court:

" Now, I will put it to you that just does not coalesce that a fellow would get down - you know, a fellow who is supposedly intimidating you would get down on one knee, grab you by the hand I think are your words, and say he loves you and wants you to marry him; right. Now---

?--- I was frightened that day. I was very

frightened.

Now, this is all fabrication?---No, it is not.

Well, you can---?---You had me several times around the back with your washing hanging, wit11 your hair in the sink, with your mattress sitting there saying that that was for any lady friends that wanted to stay the night and if I had to work back--- "

In April or May 1989 Mr Mathews made a complaint to the police that the complainant had stolen documents from the office. In response to that complaint the complainant gave a

lengthy record of interview to police on 23 June 1989 at

Kingaroy in the presence of a solicitor. Subsequent to that record of interview, the police took no action against the complainant. The complainant paid the solicitor for his services.

Mr Mathews says that he did not sexually harass the complainant at all. He submitted that the first time that the

complainant had mentioned sexual harassment was in the record of interview with the police. In fact, she had earlier given to the Commonwealth Employment Office "sexual harassment'' as the reason for ceasing her employment with the second respondent. Mr Mathews claimed that sexual harassment was relied on by the complainant to justify her taking possession of the documents which she took from the office on the morning of 27 February. He says that they were company records and

2 1

that she in fact stole those documents. This, he says, crucially affects her credibility. He submitted that her motive in taking the documents was to escape what she believed was an indebtedness to the company. She did not leave because she felt sexually harassed.

The complainant admits that in one respect she made a false statement to the Commission, in that she told them that she had been directed by Mr Mathews to put her training times on to the computer and that that now is not her recollection.

However, speaking generally, I accept her account of what occurred during the period of her employment. I am quite satisfied that she was the subject of repeated instances of unwelcome conduct, much the greater time of her employment was occupied in personal conversation between Mr Mathews and herself and during those conversations he would comment on her attractiveness and discuss sharing social activities. He

comparisons between what he would be able to offer her. The	frequently discussed her fiance, denigrating him and making
preparation of coffee required her to go into his living quarters and prepare coffee at the sink at which he used to wash his hair and shave, and in a room in which his sleeping accommodation was contained. I am satisfied that on occasions he would put his arm around her shoulders and comment on her attractiveness or the attractiveness of her clothes and
attempt to modify his conduct by saying "I don't want you t o
t a k e th is the wrong way: I h a v e no sinister i n t e n t i o n s " , and
comments of that sort. Subject to that and to the extraordinary request to braid his hair, which I am satisfied was made notwithstanding Mr Mathews ' denial, there were no actual attempts of physical intimidation or physical interaction. The conduct of repeated conversations about personal matters occurred in a context where hi's living accommodation was a significant part of the working environment and in the context where he would on occasions use the ladies' lavatory. I find that there was repeated conduct which was unwelcome and was of a sexual nature, and I further find that the complainant had reasonable ground for believing that the taking of objection would disadvantage her in connection with her employment. The conduct was not merely insensitive or offensive.

Wilcox J. in v. Sheiban Ptv Ltd (1989) 20

F.C.R. 217 said at 252-253:

" Conduct i s c a p a b l e o f b e i n g r e g a r d e d a s

'unwelcome c o n d u c t o f a s e x u a l n a t u r e '

n o t w i t h s t a n d i n g t h a t it c o n s i s t s o f the m a k i n g

o f absurd p r o m i s e s or d e c l a r a t i o n s o f love. I t

m i g h t	be	d i s t r e s s i n g	t o a	f emale	employee	t o
h a v e	the	a r d o u r	o f her	m a l e	employer	c o n s t a n t l y
p r e s s e d	upon	her,	i n	c i r c u m s t a n c e s	where	she

r e a s o n a b l y apprehends t h a t a n y p r o t e s t w i l l

j e o p a r d i s e her c o n t i n u e d employment . "

I am satisfied that the conduct of Mr Mathews did constitute sexual harassment within the meaning of the Act. There is no express statement or threat of disadvantage but the circumstances were that of a nineteen year old in her

2 3

first job, very conscious of the labour market difficulties. She was asked questions concerning the employment agreement by Mr Mathews, and confirmed that she had agreed to do fourteen days' training.

In cross-examination of the complainant by Mr Mathews, the following exchange occurred:

" I f I wanted a job I had t o d o the t r a i n i n g ,

yes. I c o u l d n o t s a y , no, I d i d not want t o do

the	t r a i n i n g .	I	d i d not	want	t o p a y for	the
t r a i n i n g .	I f I	wanted	t h a t job,	I	had	t o d o

the	t r a i n i n g .
And	p a y for i t?---Ye% "

I accept the evidence of the complainant and that of her mother that the working conditions caused her to be upset. In particular, and I think it is significant, prior to commencing employment for the second respondent she was happy and relaxed, but that during the eight weeks during which she had contact with Mr Mathews in the circumstances I have accepted, her weight fell from 45 kilograms to 37 kilograms

and she also suffered during that period from an upset	stomach. I am satisfied, in other words, that there was not
only an emotional toll exacted but that the stress of her employment circumstances had a physical effect on her.
As to the orders the court should make pursuant to the then S. 82 of the Act, I do not think that an award can compensate the complainant for distress caused by any post- employment conduct of M r Mathews. That conduct does have some evidentiary value as to what happened prior to the cessation of employment.
The employment with the second respondent was the first full-time employment in which the complainant engaged. A period of approximately four weeks elapsed before she was able to secure other employment. I accept that she was subject to emotional stress which affected her physical well- being. I am satisfied that she felt cornered, with little avenue of escape until in desperation she broke down and sought her parents' help on the morning of 27 February.
My assessment of the damages that I would award are not significantly different from the amount referred to in the determination of the Commission. In all the circumstances, I order that the first respondent pay to the complainant the sum of $6,000.00. I order the first respondent to pay the costs of the application, including reserved costs, to be taxed if not agreed. I have earlier referred to the probable futility
in any practical sense of the making of those orders.

So far as the second respondent is concerned,

Lockhart J. in the Sheiban Case (supra) said at 244:

" What e n l i v e n s t h e Federal Cour t ' s j u r i s d i c t i o n

under S . 82 i s a d e c l a r a t i o n o f t h e Commission

capab le o f enforcement i n some measure. "

I would for myself have difficulty in regarding a declaration made in respect of a party to whom no proper notice had been given of the inquiry, when assurances made to that party that it would be notified of the time and place of the inquiry, as other than a nullity. Independently of that circumstance, however, having regard to the financial circumstances of the second respondent; the fact that the first respondent was in fact responsible for the entirety of the. conduct; the fact that his aged parents had no in£ luence or meaningful control in relation to the company's operation; and having regard to the terms of the then S . 8 2 ( 2 ) of the Act, I will not make any order against the second respondent.

I certify that this and the

preceding twenty-four ( 2 4 ) pages

/

Counsel for the applicant:  Mi-S P. M. WO 1 fe

instructed by:	Human Rights Comnlission
The first respondent appeared in person.
Dates of Hearing:	22-24 April 1992 27, 2 8 April 1992