Johanson v Michael Blackledge Meats
[2001] FMCA 6
•1 March 2001
FEDERAL MAGISTRATES COURT OF AUSTRALIA
Sarah Johanson v Michael Blackledge Meats [2001] FMCA 6
HUMAN RIGHTS – sexual harassment and sex discrimination in the provision of goods – animal bone shaped to resemble a penis – whether the accidental sale of an offensive object can amount to unlawful sexual harassment – vicarious liability – whether employers took all reasonable steps to prevent harassment of customer by employees –
DAMAGES – considerations relevant to the assessment of non economic loss
Federal Magistrates Act 1999, ss.76, 77
Human Rights and Equal Opportunity Commission Act 1986 (Cth), s.46PO
Sex Discrimination Act 1984 (Cth), ss.5, 9, 22, 28A, 28G, 105, 106
CASES CONSIDERED
Aldridge v Booth (1988) EOC ¶92-222;
Shiels v James and Lipman Pty Ltd [2000] FMC 2;
CASES CITED
Bebbington v Dove (1993) EOC ¶92-545;
Bennett v Everitt (1988) EOC ¶92-244;
Boehringer v Reddrop (1984) EOC ¶92-108;
Boyle v Ishan Ozden(1986) EOC ¶92-165;
Director General of Education v Green (1984) EOC ¶92-015;
Djokic v Sinclair (1994) EOC ¶92-643;
Doyle v Riley (1995) EOC ¶92-748;
Freeshore v Kozma (1989) EOC ¶92-249 ;
G v R & Department of Health and Community Services (unreported, HREOC, 17 September 1993);
Gwenda Evans v David Lee and Commonwealth Bank (1996) EOC ¶92-822;
Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217;
Hawkins v Malnet Pty Ltd (1995) EOC ¶92-767;
Henderson v Electrolytic Zinc Co (1994) EOC ¶92-616;
Hill v Water Resources Commission (1985) EOC ¶92-127 ;
Hooper v Mt Isa Mines (1997) EOC ¶92-879;
Horne v Press Clough Joint Venture (1994) EOC ¶92-556;
Kiel v Weeks (1989) EOC ¶92-245;
Leslie v Graham (unreported, HREOC, 21 July 2000);
Q v John Defelice (unreported, HREOC, 24 December 1999);
State Electricity Commission of Victoria v Equal Opportunity Board & Others (1989) EOC ¶92-259;
V v Australian Red Cross (unreported, HREOC, 18 February 1999).
CASES REFERRED TO
G v R and the Department of Health, Housing and Community Services (unreported, HREOC, 23 August 1993);
Gilroy v Angelov [2000] FCA 1775;
Greenhalgh v National Australia Bank (1997) EOC ¶92-884;
Horne & McIntosh v Press Clough Joint Venture (1994) EOC ¶92-591;
Jamal v Secretary of Department of Health (1988) EOC ¶92-234;
Shiels v James and Lipman Pty Ltd [2000] FMC 2.
ApplicantSarah Johanson
Respondents: Richard Blackledge and
Lucimar Blackledge trading as Michael Blackledge Meats
File No:SZ97 of 2000
Delivered on: 1 March 2001
Delivered at: Sydney
Hearing Dates: 15 and 16 February 2001
Judgment of: Driver FM
REPRESENTATION:
Counsel for the Applicant: Ms K Eastman
Solicitors for the Applicant: Ms R Fahey
Marsdens the Attorneys
Counsel for the Respondent: Miss C A Needham, SC
Solicitors for the Respondent: Mr R Duic
Russell C Byrnes, solicitors
ORDERS:
The Court declares that, by reason of the conduct of employees of the respondents, the applicant has been the victim of unlawful sexual harassment and that the respondents are vicariously liable for that unlawful harassment.
The respondents are to pay damages of $4,500 to the applicant as compensation for the unlawful sexual harassment.
The respondents are to pay the applicant’s costs of these proceedings which, if not agreed, are to be taxed in accordance with the Federal Court Rules.
IN THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
SYDNEY REGISTRY
No SZ97 of 2000
Sarah Johanson
Applicant
And
Richard Blackledge Meats
Lucimar Blackledge trading as Michael Blackledge Meats
Respondents
REASONS FOR DECISION
INTRODUCTION
This case concerns a dog bone. But not any ordinary dog bone. It concerns a dog bone which had been prepared in the shape of a penis and sold to the applicant. The object in question was presented in Court and I inspected it. It comprised two parts, the main shaft being about 20 centimetres long with a knuckle bone at the end resembling testicles. The top of the bone had been cut and another bone, shaped to resemble the head of a penis, had been placed on top and secured with a skewer through the centre of the bone. The applicant sought to tender the object but as it was perishable this presented some inconvenience. I did not accept the tender but accepted instead a colour photograph of the object which I am satisfied is a true representation of it. The Court has retained an electronic scanned copy of the photograph, which may be made available upon request to a person having a genuine need to see it, in association with these reasons.
THE APPLICATION
The application before the Court is brought by Ms Sarah Johanson against Richard Blackledge and Lucimar Blackledge trading as Michael Blackledge Meats. The application was originally filed in the Federal Court on 11 July 2000. An amended application was filed on 14 September 2000 and a further amended application naming the present respondents was filed in this Court on 20 December 2000 pursuant to leave granted by me on 1 December 2000. The proceedings had earlier been transferred from the Federal Court to this Court pursuant to orders by his Honour Tamberlin J on 3 November 2000.
The application is brought pursuant to s.46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth)(the HREOC Act) alleging that the applicant was the subject of sexual harassment contrary to sections 28A and 28G of the Sex Discrimination Act 1984 (Cth) (the SDA).
The applicant also alleged discrimination under sections 5 and 22 of the SDA and the application also seeks relief against the respondents pursuant to sections 105 and 106 of the SDA.
The application was heard over two days on 15 and 16 February 2001 in Sydney. On the first day of trial it became clear that the application alleging discrimination pursuant to sections 5 and 22 of the SDA had been included not as a separate cause of action but only to support the claim under sections 28A and 28G (so as to demonstrate that the alleged harassment was itself a form of discrimination). In addition, the claim under s.105 of the SDA was not pressed and the applicant ultimately relied upon s.106.
The application sought an apology from the respondent and compensation which was detailed in an attachment. At trial, this was modified as a private apology had already been proffered by the respondents and had been accepted by the applicant. Initially, the applicant pressed her claim for a public apology but this was withdrawn on the second day of trial. Ultimately, the applicant only sought a declaration as to the unlawful conduct and compensation as particularised.
The respondents opposed the application. Both parties were represented by solicitors and counsel. Prior to the application, the applicant had made a complaint to HREOC under now repealed provisions of the HREOC Act. That complaint had been terminated by HREOC. The Commission terminated the complaint as it was not able to resolve the matter by conciliation.
THE APPLICANT’S CASE
The applicant presents her case as a straightforward complaint of sexual harassment in the provision of goods. Her case is, essentially, that in late February or early March 1999 the applicant purchased a bone from Michael Blackledge Meats, a butcher shop owned and operated by the respondents in Redfern. The bone was shaped to resemble a large penis. Ms Johanson says that she was shocked and sickened when she saw the bone. She alleges that she complained to the manager of the butcher’s shop, but was laughed at. She reported the incident to the police.
Ms Johanson alleges that, as a result of the incident, she has developed a severe anxiety reaction. She claims this contributed to her being forced to leave her employment with a florist shop trading at the same shopping centre as the butcher’s shop. She seeks compensation from the respondents for the losses she claims that she has incurred and for the humiliation and suffering allegedly caused by the incident.
In support of her application the applicant relies on affidavits made on 10 July 2000 by herself and an affidavit made on 19 December 2000 by Colleen Anne Schofield. In addition, the applicant relies upon a psychologist’s report prepared by consulting psychologist Mark Anns on 23 August 2000. The applicant and Mr Anns were cross‑examined on their affidavit and report respectively. By agreement, Ms Schofield was not cross-examined.
THE RESPONDENTS’ CASE
On 16 November 2000 the respondents filed a defence to the application in which they stated that neither were present in the shop on the day of the alleged incident and that neither participated in the incident or had any prior knowledge that it would occur. Further, the respondents say that neither of them had any reason to expect that one of their employees would conduct himself as alleged and at no time have either of the respondents encouraged, approved or condoned such conduct in their shop or towards their customers or at all. They say that such conduct had never occurred in their shop so far as they were aware prior to this alleged incident. At that time, the respondents did not admit that the incident alleged by the applicant in fact occurred and said that if it did occur it was not done by one of their employees.
The respondents also said that if the incident occurred it was not done in connection with the employment of the employee whose conduct is complained of so as to render the respondents vicariously liable for his conduct under the SDA. Alternatively, they say that they took all reasonable steps to prevent their employee engaging in the conduct complained of by running their shop in accordance with good business practices and courteous service to customers and so allege that they discharged any onus upon them under s.106(2) of the Act.
Further or alternatively the respondents say that as a matter of law the conduct complained of does not constitute discrimination on the ground of the applicant’s sex within the meaning of sections 5 and 22 of the SDA and that, as a matter of law, the conduct complained of does not constitute sexual harassment within the meaning of sections 28A and 28G of the SDA. Finally, the respondents say that the alleged conduct complained of did not cause the applicant to change her employment and that the applicant was not rendered unable to shop near her home, nor has she developed anxiety as a result of the incident. The respondents also allege that the applicant has in fact substantially improved her salary by changing jobs.
The respondents’ position had changed somewhat by the time this matter reached trial. In particular, the respondents now admit that the object in question was sold to the applicant but they deny that they had any prior knowledge that an object shaped as it was was to be sold to her. They now say that they did not become aware until August 2000 that the incident had occurred in their shop and that, after becoming aware that it had occurred they did not condone it. They maintain that they were not present in the shop on the day of the incident and that they neither participated in it or had any prior knowledge that it would occur.
Further, the respondents say that the employees concerned had no intention that the applicant would receive the object in question. They say that the incident occurred because of a chain of events initiated by the conduct of a junior shop assistant who had made the bone for an unrelated purpose. They say that it was erroneously given to the applicant. In other respects the earlier defence is in essence confirmed.
The respondents rely upon an affidavit made by Richard Blackledge on 7 February 2001, an affidavit made on 7 February 2001 by Christopher Finlay and a medical report prepared by Doctor Robert D Lewin on 22 January 2001.
The respondents sought to rely upon a further affidavit made on 6 February 2001 by Nicholas John Zafir who operated the shop at which the applicant worked at the relevant time. This was objected to wholly by the applicant. I overruled that objection but did allow the applicant’s objections to certain parts of the affidavit. As matters transpired, Mr Zafir was only available by telephone to be cross-examined and the respondents ultimately decided not to rely upon his affidavit. Mr Blackledge and Mr Finlay were both cross-examined upon their affidavits. There was no cross-examination of Doctor Lewin.
There were objections made by both parties to parts of the affidavits which were relied upon. These objections occupied some considerable time on the first day at trial. My approach was to accept almost all of the evidence provisionally (some small parts were deleted on grounds of relevance) and, ultimately, I rejected most of the objections to this material.
OTHER MATERIAL
The Court was presented with written submissions by both parties and further written submissions were submitted by leave following trial. The further written submissions by the applicant annexed a code of practice on sexual harassment prepared by HREOC. This was objected to by the respondents on the basis that the document was not evidence and neither did it have legal authority. I indicated at trial, however, that I would have regard to the code by way of background and as an indication from an authoritative source as to what steps the operators of a small business might take to properly discharge their obligations pursuant to s.106 of the SDA. I deal with this issue in more detail later in these reasons.
THE LEGISLATION
As noted above this application is brought under sections 5, 22, 28A, 28G, 105 and 106 of the SDA. Section 5 defines sex discrimination. The section provides that, for the purposes of the Act, a person discriminates against another on the ground of sex of the aggrieved person if, by reason of:
(a)the sex of the aggrieved person;
(b)a characteristic that pertains generally to persons of the sex of the aggrieved person; or
(c)a characteristic that is generally imputed to persons of the sex of the aggrieved person; the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of the opposite sex.
Section 22 of the SDA relevantly provides that it is unlawful for a person who, whether for payment of not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person’s sex, marital status, pregnancy or potential pregnancy:
…(c) in the manner in which the first mentioned person provides the other person with those goods or services or makes those facilities available to the other person.
Section 28A defines sexual harassment. The section provides as follows:
(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.
Section 28G of the SDA provides that it is unlawful for a person to sexually harass another person in the course of providing, or offering to provide, goods, services or facilities to that other person.
Section 105 of the SDA deals with the liability of persons involved in unlawful acts. The section provides that a person who causes, instructs, induces, aids or permits another person to do an act that is unlawful under division 1 or 2 of Part II shall, for the purposes of this Act, be taken also to have done the act. Section 106 deals with vicarious liability. That section provides that:
(1) Subject to subsection (2), where an employee or agent of a person does, in connection with the employment of the employee or with the duties of the agent as an agent:
(a) an act that would, if it were done by the person, be unlawful under Division 1 or 2 of Part II (whether or not the act done by the employee or agent is unlawful under Division 1 or 2 of Part II); or
(b) an act that is unlawful under Division 3 of Part II;
this Act applies in relation to that person as if that person had also done the act.
(2) Subsection (1) does not apply in relation to an act of a kind referred to in paragraph (1)(a) or (b) done by an employee or agent of a person if it is established that the person took all reasonable steps to prevent the employee or agent from doing acts of the kind referred to in that paragraph.
THE EVIDENCE
The affidavit made by the applicant, Ms Johanson, on 10 July 2000 is quite straightforward. She deposed that:
·In or around late February 1999 she went to the butcher’s shop, Michael’s Meats in Surry Hills Shopping Centre, next door to her then place of work, “Fruitique”, to buy a dog bone;
·The butcher who served her was aware that she worked next door and said words to the effect that; “You can pick it up just before you go home”. She thought nothing of this and replied that she could do so;
·She went back to Michael’s Meats around 4.00pm on the same day to pick up the dog bone and all the employees were “sniggering” as she purchased the bone they had prepared for her. She did not think much of this at the time, and paid approximately $2 for the bone;
·She then returned to work at Fruitique, and thought that something must be wrong with the bone, but was too busy to open the bag in which it was contained;
·When she returned home, she opened the bag to find a “disgusting” bone shaped like a penis;
·The bone had fat deposits placed on the top of it to simulate a penis ejaculating;
·As soon as she saw the bone, and the shape it had been moulded into she felt sick in her stomach;
·A few days later, she returned to Michael’s Meats in order to confront the “manager” and obtain an apology. He said words to the effect that, “I didn’t serve you”, and laughed at her;
·She expresses the opinion that she was sexual harassed as a result of her sexuality, and therefore felt as though she had been discriminated against;
·As a result of the incident she found it impossible to continue with her employment at Fruitique. She left Fruitique “soon after this incident” in early March 1999. She subsequently found employment but it was necessary for her to travel 56 kilometres a day from her residence as a result of the change;
·She feels as though she cannot return to Michael’s Meats, the butcher’s shop she quite often frequented. She also feels as though she can no longer shop at Surry Hills Shopping Centre. The incident has made her more wary with respect to her shopping experiences.
Under cross-examination Ms Johanson was an impressive witness. She answered questions calmly and carefully. At no stage did she become flustered or upset. She resisted attacks upon her credibility calmly but forcefully. I regard her as a witness of truth. That is not to say that her recollections were necessarily wholly accurate or complete. Recollections are notoriously unreliable. In addition, witnesses seldom volunteer information adverse to their interests.
Under cross-examination Ms Johanson conceded that she was not happy at Fruitique. She left in March 1999 on bad terms with the owner. Ms Johanson conceded that she was the victim of sustained harassment and/or discrimination at Fruitique and that she had made a complaint to HREOC about that discrimination and harassment. A copy of a letter from HREOC to the owner of Fruitique dated 15 February 2000 relating to that complaint was tendered on behalf of the respondents. Attached to that letter was a copy of Ms Johanson’s handwritten complaint. This detailed serious allegations concerning salacious statements by male employees to Ms Johanson, pornographic magazines being left about where Ms Johanson would see them; and a campaign of intimidation against her after she made complaints to the management. It appears that the complaint to HREOC has not been resolved but has not yet been terminated.
Ms Johanson also conceded under cross-examination that her hours of work at Fruitique had been reduced from 40 to 10 early in 1999 after she had made complaints about her treatment at Fruitique. She also conceded that she earned approximately $800 per week after tax at “Floriade” the flower shop she took employment at later in 1999 and that subsequently, her earnings increased by about $200 per week. She purchased the shop in November 2000.
Ms Johanson also conceded that prior to commencing employment at Floriade she obtained employment at a florist at the Warringah Mall and that there was no gap in her employment. At the Warringah Mall she earned between $450 and $500 a week after tax. At the time she left Fruitique, because of her reduction in hours, Ms Johanson was earning only $150 per week.
Ms Johanson was tested on her evidence concerning her complaint to the “manager” of the butcher’s shop after the purchase of the dog bone. She admitted speaking to a Mr Zafir, the owner of Fruitique, the day after the incident but denied a suggestion that she had joked about the incident. She admitted not being certain how long after the incident it was that she confronted the “manager” of the butcher’s shop and she had admitted being mistaken in her affidavit as to the place at which she spoke to the manager. Ms Johanson now believes that it was the owner of the shop, Mr Blackledge, whom she spoke to and that she spoke to him some days after the incident at the rear of Fruitique. At my prompting, Ms Johanson identified Mr Blackledge in court as the person who she spoke to.
Ms Johanson was also challenged on her reasons for seeking a written apology in the Sydney Star Observer newspaper. She conceded that this is a paper circulating widely in Sydney and read by the gay and lesbian community. She admitted that she is a lesbian and stated that she regarded both the events at Fruitique and the bone incident as part of a campaign against her based upon her sexuality. She denied wanting to punish the respondents over the sale of the dog bone but stated that she wished to have a public acknowledgment of their wrong doing. This aspect ceased to have much relevance to the case once the applicant withdrew her claim to a public apology.
Ms Johanson was also questioned about her interview with the psychologist, Mr Anns. She conceded that she did not volunteer information to Mr Anns concerning the harassment she experienced at Fruitique. She explained this by noting that she was not asked about it. She conceded that perhaps she should have told Mr Anns about those events. She conceded that she had not until very recently undertaken therapy recommended by Mr Anns and explained this on the basis that she had been “too busy”.
At the conclusion of the cross-examination of Ms Johanson her letter dated 16 March 1999 to Mr Zafir detailing her complaints about her employment there was tendered on her behalf. In this letter Ms Johanson set out complaints relating to:
·Mr Zafir’s denial of her full time employment status;
·His failure to prevent her being harassed in the workplace;
·Tax and superannuation issues;
·A dispute over bonuses relating to flowers provided for weddings.
The psychologist Mr Anns was also cross-examined. In his report dated 23 August 2000 Mr Anns stated that, on the basis of the history provided to him and his examination of Ms Johanson, he concluded that Ms Johanson was experiencing a severe anxiety reaction directly linked to the bone incident in “1998” [sic]. He found the severe anxiety reaction to be genuine and found the incident to be the cause of her leaving her employment at Fruitique. Mr Anns’ prognosis was that Ms Johanson’s ongoing anxiety reaction was unlikely to self correct for some further time. He informed Ms Johanson of medical and therapeutic interventions that were available to her that would assist with the elimination of her anxiety state.
Mr Anns’ evidence suffered somewhat under cross-examination. He admitted that he could not recall being told about the series of incidents at Fruitique and admitted that it would be surprising if he had been told about them and had made no mention of them in his report. There was no mention of them in his report. He was extremely wary in providing answers to questions posed by Miss Needham and appeared to take the view that it was necessary for him to defend the position he had adopted in his report, even if it had been based upon inadequate material. He admitted that early therapeutic intervention might have helped to resolve Ms Johanson’s condition earlier but could not recall referring her to anyone in particular. He believed that an apology made earlier could have settled the matter altogether but that other stressors (such as the events at Fruitique) might have exacerbated the problem or rendered her more susceptible to damage from the bone incident.
Mr Anns said that Ms Johanson indicated to him that she would undertake counselling and conceded that people sometimes do not undertake counselling that would assist them so as not to dissipate their symptoms prior to court proceedings. Mr Anns said that Ms Johanson was distressed during her interview with him. He conceded that there was no suggestion that Ms Johanson could not work. He recommended between six to eight sessions of therapy as being desirable. He conceded that if there had been early intervention three sessions might have been sufficient. His current diagnosis is that Ms Johanson is suffering from an anxiety disorder, not otherwise specified. This is one step higher than a mild adjustment disorder which is the minimum level of a recognised psychological disturbance.
In her affidavit made on 19 December 2000 Ms Schofield deposed that:
·She was involved in a relationship with Ms Johanson for approximately four years from February 1996 to March 2000 and that they lived together from approximately May 1996 to April 2000;
·The incident which is the subject of these proceedings occurred in or around February 1999 at the time Ms Johanson was employed at Fruitique;
·On a day in or around February 1999, Ms Schofield received a telephone call at work from Ms Johanson, who sounded “very distressed” and recited her recollection of the incident;
·When she returned home from work that day she found Ms Johanson “very upset and distressed”. Ms Johanson showed her the bone and she verified its appearance. She was “concerned and distressed” herself that the bone had been given to Ms Johanson;
·Ms Schofield expressed opinions as to Ms Johanson’s emotional state at the time and opinions about the reasons why Ms Johanson left Fruitique, as well as opinions about her continuing state of mind. She deposed that since the incident she had noticed that Ms Johanson was reluctant to go into butcher shops or into the Surry Hills Shopping Centre. She deposes that during the time of their relationship the incident had caused inconvenience and tension between them as they had always done their shopping at Surry Hills Shopping Centre.
Ms Schofield was not cross-examined and Miss Needham objected to parts of the affidavit, in particular those parts in which Ms Schofield expressed opinions about Ms Johanson’s state of mind and her alleged reluctance to go back to work at Fruitique. I overruled those objections on the basis that those parts of the affidavit were of some relevance but indicated that I would give those parts of the affidavit appropriate weight.
Apart from the colour photograph of the bone identified earlier, the applicant tendered a series of correspondence between the solicitors for the parties concerning requests for particulars and answers provided.
The evidence for the respondents commenced with the affidavit of Richard Blackledge. In this affidavit, made on 7 February 2001, Mr Blackledge deposed that he and his wife are the proprietors of Michael Blackledge Meats and conduct a butcher’s shop in the Surry Hills Shopping Village at Redfern. In or about February 1999 the business employed four full time male butchers as well as a male junior full time shop assistant named Ben Lithgow. In addition, the respondents employed three casual butchers who worked mainly on weekends. Mr Blackledge worked in the shop as well but was not always there and he did not work regular hours. Lucimar Blackledge also worked part time in the shop serving customers.
Mr Blackledge deposed that on the day of the incident neither he nor his wife were working in the shop and they were not aware of what happened. He said he did not find out what happened until late 2000. Mr Blackledge asserted that he does not discriminate between customers and employees and that he has never done so. He prides himself on being a person who does not discriminate between people on the ground of race, religion, gender, sexual preference or “whatever”. Mr Blackledge said that he is part Aboriginal himself. The other butchers working in the shop at the relevant time were of diverse cultures and backgrounds. Because of its location, the shop enjoys patronage from a high proportion of homosexual customers.
Mr Blackledge deposed that in February 1999 (and now) he had taken all the steps that he believed he could take to ensure that his employees treated all of his customers with courtesy and politeness, regardless of whether those customers were drawn from the gay community or not. He led by example and by that of his wife and by choosing to employ only persons who, as best as he could tell, were the type of person who would not behave inappropriately to customers. Mr Blackledge deposed that, prior to the bone incident, he had not witnessed any incident of discrimination in his shop.
Mr Blackledge deposed that he became aware of the facts leading up to the complaint by Ms Johanson only in August 2000, after the present proceedings had been commenced in the Federal Court and he and his wife had engaged a solicitor to act for them. Since then Mr Blackledge has become aware that the junior shop assistant, Ben Lithgow, was involved in the incident. Mr Blackledge deposed that Ben came looking for work a few months before February 1999. He is a young man from Gulgong who came to Sydney looking for work. Ben indicated some relevant experience, though not in a butcher’s shop, and a couple of weeks later Mr Blackledge offered to employ Ben as a junior with a view to an apprenticeship. Ben did not in fact start the apprenticeship.
When Ben started work at the butcher’s shop Mr Blackledge had a conversation with him about his duties and said words to the effect that he must be neat and well attired and polite to customers and, “just listen to what the butchers in the shop ask of you”. Ben indicated assent. Mr Blackledge regarded Ben as a pleasant, happy and personable young man and observed that he was unfailingly polite and courteous to customers. Mr Blackledge deposed that he took care to alert Ben to the fact that the shop had homosexual customers and told him that he must do the “right thing” by all the customers. Ben indicated assent. Mr Blackledge deposed that the reason he particularly pointed this out to Ben was that he was a young man just arrived in Sydney from the country and that he would not have had prior experience of a substantial gay community. Mr Blackledge deposed that “on the day in February 1999 to which the complaint relates” Ben Lithgow, Ted Brown, Christopher Finlay, Manuel Demoras and Michael Pappas were all working in the shop. He and his wife were not there. Manuel and Michael were working in the front of the shop serving customers. The others were working in the back of the shop doing jobs such as breaking down carcasses and processing meat.
Several days after the incident Mr Blackledge went to the shop and was told by Christopher Finlay that the police had visited the shop and spoken to Michael Pappas and Manuel Demoras. Manuel told Mr Blackledge that the police were investigating a complaint from “the woman next door” who had reported obtaining a marrow bone shaped like a “cock” from the shop. Mr Blackledge deposed that at this point he made the assumption that the bone must have come from his shop and he asked Manuel, “Who did it?”. Manuel denied knowing anything about it. So did Michael Pappas. Mr Blackledge deposed that he believed them. Mr Blackledge deposed that he did not speak to Ben Lithgow or Ted Brown because the police had not questioned them. Nevertheless, he deposed that they were within earshot when he spoke to Chris, Manuel and Michael and that neither of them came forward to say anything.
Mr Blackledge deposed that he worked in the shop over the next few weeks and that he was available to talk to Ms Johanson if she had come into his shop to complain. He said that he often went into Fruitique next door because he was friendly with Mr Zafir who owned that shop. At the time, Mr Blackledge knew who Ms Johanson was but did not know her by name. He did know that she was the person who had made the complaint to the police. Mr Blackledge deposed that Ms Johanson did not speak to him at any time about her complaint and that he was not the “manager” referred to by Ms Johanson in her affidavit. He added that:
“However if I am that person, I deny that we had any conversation as set out in that paragraph.”
Mr Blackledge deposed that he heard nothing from Ms Johanson about the incident until he received a letter from HREOC informing him that a complaint had been made against him and his wife. Mr Blackledge responded to the Commission himself. The applicant tendered as an exhibit a letter dated 15 February 2000 to Mr Blackledge and a handwritten reply from Mr Blackledge dated 24 May 2000.
Mr Blackledge deposed that at the time he received notice of the complaint to HREOC Ms Johanson had stopped working at Fruitique but that he discussed the complaint with Mr Zafir. He deposed that he also discussed the complaint with the “manager” of Fruitique and with another employee of that business. The “manager” made certain derogatory comments about Ms Johanson and referred to her threat to complain to HREOC about her treatment at Fruitique. Mr Zafir told Mr Blackledge that he had had difficulties with Ms Johanson as well and that she had left his employment because of those difficulties.
Mr Blackledge deposed that he participated in efforts by HREOC to conciliate the dispute but that he refused to provide an apology because he did not think that he had done anything wrong. He deposed that at that time, “I had no reason to think that anything had occurred in our shop about which Ms Johanson could make a complaint and I did not believe that I should have to apologise”.
However, Mr Blackledge deposed that his attitude changed on 15 August 2000 when he saw the bone at the premises of the applicant’s solicitors. He says that it was at that time he realised that the complaint was serious because it related to an object that had been specially made to resemble a penis and that it was not a bone which appeared naturally to resemble a penis, which he thought might have been an explanation for the complaint.
Mr Blackledge made further inquiries of his employees. These proved fruitless. However, as a result of Ben Lithgow overhearing telephone calls made by Mr Blackledge Ben Lithgow (who had been off work for some time because of an injury) confessed that he had arranged for Ted Brown to make the object as a practical joke he had intended to play on a male acquaintance. Mr Blackledge deposed that Ben told him that having shown the bone to his acquaintance he put it in a bag in the cool room with the intention of taking it home so that he could “use it again”. He deposed that Ben told him that he did not know how a customer got it and that the bone was gone when he went to retrieve it.
Mr Blackledge deposed that in February 1999 (and now) marrow bones were kept in the cool room at the back of the shop. Each marrow bone is individually placed in a plastic bag which is made of white opaque plastic. The tie ends of the bag are knotted and then the bag is hung in the cool room. When a customer buys a marrow bone, the person who is serving the customer takes one of the knotted bags out of the cool room and gives it to the customer. The marrow bones cost between $1.50 and $2. It is not possible to see through the plastic bags containing the marrow bones. Mr Blackledge deposed that in his view it would not have been apparent from looking at the bag that the bone inside the bag had been tampered with in the way this bone had been.
Mr Blackledge deposed that at no time prior to the incident did he have any cause to believe that any of his employees might misconduct themselves with a customer. He says:
“I am concerned this happened, even by accident or oversight, which has caused her distress and has the potential to bring our business into disrepute.”
Mr Blackledge expressed regret that he has been unable to resolve the complaint out of court but said that he is unwilling to pay Ms Johanson the “large sum of money” that she is claiming as compensation when he did nothing to encourage what happened and knew nothing about it until recently. Mr Blackledge expressed confidence that no similar incident will occur in the future.
Under cross-examination Mr Blackledge presented as a basically honest and forthright man who was concerned to protect his reputation and that of his business. His answers to questions were not always to the point and at some stages he appeared argumentative. On several occasions Ms Eastman appealed to me to direct the witness to answer questions put to him, to wait until the question had been asked and to not engage in argument. On two occasions I counselled Mr Blackledge. I did not regard Mr Blackledge as an untruthful witness but I did regard him as a witness whose evidence could be affected by a desire to protect his interests.
Under cross-examination Mr Blackledge was not shaken from the essential elements of his evidence contained in his affidavit. He noted that his shop is a successful business with about 3,000 customers per week. At the relevant time he had five full time and three part time staff as well as Ben Lithgow.
Mr Blackledge made the following material admissions:
·He is responsible for the general running of the shop;
·He made no inquiry of the police about their investigation;
·He made no attempt to speak to Ms Johanson about the complaint;
·In his response to the letter from HREOC he provided an inaccurate statement in that he said that he had at that time interviewed all past and present employees about the incident;
·He spoke to Ben Lithgow about giving evidence in these proceedings and understood that Ben had been interviewed with a view to him making an affidavit – but no affidavit was relied upon or presented in these proceedings;
·He cannot recall counselling Ben about his actions when he made his confession;
·He took no disciplinary action against Ben (or it appears Ted) – he dismissed Ben some short time afterwards for the reason that Ben had become involved with drug dealers who had entered his shop threatening to kill Ben;
·He was shocked to see the bone and conceded that it was a shocking object.
·The bone was made by Ted at the shop during working hours on shop equipment.
Christopher Finlay, in his affidavit made on 7 February 2001, deposed that in February 1999 he was working as a butcher employed by Richard Blackledge and his wife at their butcher shop at the Surry Hills Shopping Mall. He deposed that prior to the incident he knew the applicant by sight but not by name and he “probably” knew that she was working next door at Fruitique but he was not sure until about one week or so before the incident. He deposed that he had served her several times, mostly in the evening. Ms Johanson ordered bones for her dog and occasionally diet mince.
Mr Finlay deposed that he believes he was the person who served Ms Johanson on the day she received the bone. On that day his recollection is that Mr Blackledge was not there. Mr Finlay deposed that he recalls that Michael was in charge and that at the relevant time he was in the cool room. Manuel called out for him to get a marrow bone and he took the first bag within reach and came outside. Manuel indicated the bone was for Ms Johanson and he gave it to her and charged her $1.50. The bag was tied and was white plastic. Mr Finlay wrapped it in paper. He saw nothing unusual about the bag or the bone inside it.
Mr Finlay deposed that the next day he was in the shop and he saw Ms Johanson when he came in. He said hello and she said hello back. He deposed that Ms Johanson seemed her usual self.
Mr Finlay deposed that the first time he knew about the complaint was when Mr Blackledge “showed me the complaint”. He says that he did not find out what happened until August 2000 when he heard Ben Lithgow speak to Mr Blackledge about the incident. Mr Finlay deposed that he then spoke to Mr Blackledge and indicated that he thought it must have been the bone he produced from the cool room and sold to Ms Johanson.
Mr Finlay deposed that he cannot recall any customer making a complaint about any sort of harassment and that Mr Blackledge is not a person who discriminates. He deposed that Ms Johanson did not return to the shop and make a complaint as far as he knew.
Mr Finlay appeared on cross-examination to be an open and frank witness. He was tested on his recollection of the events in question and did not shift from the essential details. He recalls being interviewed twice by Mr Blackledge about the incident and denied any knowledge of it prior to August 2000. He specifically denies that there was any sniggering or laughing at the time he sold the bone to Ms Johanson. He exhibited a very clear and specific recollection of Ms Johanson visiting the shop to buy diet mince but did not have a vivid recollection of her attendance at the shop to buy the bone at the time of the incident. Given the uncertainty about the precise day on which Ms Johanson purchased the bone, I place no weight on his evidence that she came into the shop the following day and appeared normal.
Mr Finlay stated under cross-examination that Mr Blackledge provided simple oral instructions concerning discrimination and he conceded that at the relevant time there were no written instructions. He stated that there is now a set of written instructions displayed at the shop. He also conceded that he was upset when he saw the photograph of the bone and that he would not want such an object to be given to his wife.
In an answer to a request for particulars dated 26 October 2000 the solicitors for the applicant stated that the applicant did not know the name of the person who served her in the butcher’s shop, their position or the manner in which they were employed, whether agent or employee. They said that the individual who served the applicant is described by the applicant to be male, who is relatively tall with a fair complexion, slim build with a slightly receding hairline. As it did not appear to me that Mr Finlay fitted this description I asked him whether he regarded himself as having a receding hairline. He said that he would not have so regarded himself. I asked him if anybody in the shop had a receding hairline and he said that Michael Pappas had a receding hairline. However, under re‑examination by Miss Needham, Mr Finlay agreed with her that Michael Pappas has a swarthy or olive skinned complexion. There is no evidence as to his build or height.
The report of Doctor Lewin was far more comprehensive than that of Mr Anns. First, the history provided to Doctor Lewin was more comprehensive and, it appears, more accurate. For example, Ms Johanson told Doctor Lewin that she spoke to the owner of the butcher’s shop in the rear of the fruit shop. She also told him about her treatment at Fruitique. Doctor Lewin saw a photograph of the bone and examined the applicant’s written complaint to HREOC. Doctor Lewin also reviewed the report prepared by Mr Anns.
The history given by Ms Johanson to Doctor Lewin was in large measure confirmatory of her recitation of events elsewhere. However, there were some significant variations. Apart from her correction of the details as to who she spoke to about the incident and where, she reported to Doctor Lewin that at the time she purchased the bone the man who served her was smiling at her. She noted that the bone was wrapped in paper within a plastic bag. She felt that everyone in the store was staring at her. There was no reference, however, to sniggering or laughing. She told Doctor Lewin that following her complaint to the police she was given a report by the police of the result of their investigation. I note that a subpoena was directed by the applicant to the police but nothing has been put in evidence concerning what might have been obtained on that subpoena.
Doctor Lewin reviewed in detail Ms Johanson’s psychiatric history. He reviewed both the incident of the purchase of the bone and its aftermath and the dispute between Ms Johanson and the owner of Fruitique. Ms Johanson told Doctor Lewin that she was branded as a troublemaker by Mr Zafir after she complained to the owner of the butcher’s shop and after she went to the gay liaison officer at the police.
Ms Johanson described to Doctor Lewin her physical and psychological symptoms derived from these events. These indicated a clear degree of upset and preoccupation after the events but Ms Johanson described her current symptoms as having improved markedly. She did not report any avoidance behaviours apart from avoiding some butcher shops.
The background history provided by Ms Johanson indicates that she had a difficult childhood with an alcoholic mother. She has worked since the age of 12. It seems she was raised substantially by her siblings. Her mother died in March 1999 after a long illness.
Doctor Lewin reported that at the examination Ms Johanson gave clear, concise and detailed answers describing her experiences. She interacted warmly. She spoke of the events concerning the bone with evident revulsion but without undue distress. She did become distressed when telling Doctor Lewin about the process of litigation and the manner in which Mr Zafir had responded to her perception of threat and menace. She reported that she was coping well in recent times. She did not report current post traumatic symptoms of anxiety.
Doctor Lewin provided a summary diagnosis and opinion. He said that Ms Johanson describes a range of symptoms of disgust as well as low grade reactive symptoms of anxiety and depression over the first few months following the incident concerning the bone. He said she also reported some degree of enduring distress which appears to have been rekindled by the current legal proceedings.
Doctor Lewin found no evidence of impairment of functioning at the time of his report. He ventured the opinion that Ms Johanson was either intensely distressed by the incident or that she experienced a mild adjustment disorder. Adjustment disorder is the most mild degree of psychiatric disturbance, on the border between common human unhappiness on the one hand and a mild anxiety/depression reaction on the other. Doctor Lewin found no evidence of an enduring psychiatric disturbance. He opined that the history suggests that Ms Johanson did not suffer from a more severe condition, such as post traumatic stress disorder. He added that an event of this nature could not give rise to such a condition, based upon conventional diagnostic criteria. He concluded that Ms Johanson is not suffering from any psychiatric illness at the time of his report. He felt that it was possible that Ms Johanson might have benefited from a brief intervention at the time of the incident, however her condition settled. She had reported some enduring feelings of distress but Doctor Lewin found no evidence of any psychiatric disturbance at the time of his report. He found no evidence of current impairment with regard to work or leisure. He felt that Ms Johanson might benefit from a focused course of supportive counselling with a psychologist limited to two or three sessions, on an outpatient basis, with the overall aim of encouraging Ms Johanson to move on to the next phase of her life. He felt that more prolonged treatment was unlikely to be helpful and might inadvertently encourage regression.
CONSIDERATION OF THE ISSUES
It is not disputed that in or around late February 1999 Ms Johanson attended the butcher’s shop owned and operated by the respondents and purchased a dog bone. It is not disputed that this was the dog bone which had been carved into the shape of a penis. It is not disputed that Ms Johanson did not seek such an object and that the object was in its nature shocking. It is not disputed that Ms Johanson could reasonably have been expected to have been shocked by receiving such an object.
On the other hand, Ms Johanson has no evidence available to her to contradict the evidence for the respondents that the bone in question was provided to her in error. The uncontradicted evidence is that the bone had been intended for another purpose and was accidentally provided to Ms Johanson.
There is a contest of evidence as to precisely what happened on the day when Ms Johanson attended the butcher’s shop and shortly afterwards when she spoke to Mr Zafir about it and when she spoke to the person described in her affidavit as the “manager” but who she now says was Mr Blackledge.
The respondents’ evidence is that, essentially, Mr Blackledge regarded the simple instructions given to his employees as sufficient to deal with any issue of discrimination in the workplace or against customers. The respondents concede that there were no written instructions to staff at the time and it is clear from their evidence that the instructions that were given said nothing about sexual harassment. The respondents concede that they made no effort to speak to Ms Johanson about the incident after they were aware that she had made a complaint to the police. It is apparent from the evidence of Mr Blackledge that he did not regard the matter as serious until he saw the bone in August 2000.
It is a matter of speculation whether the explanations given to Mr Blackledge about how the incident occurred were accurate. I am satisfied that he gave an accurate account to the Court of what he had been told by Ben Lithgow and Mr Finlay. Other staff provided denials of any knowledge. Whether those denials were truthful and whether the explanation proffered by Ben Lithgow was accurate or complete I do not know. However, there is no evidence to contradict Mr Blackledge’s account. Ben Lithgow was available as a witness and he was not called. I draw the inference that his evidence would not have assisted the respondents. Whether that means, however, that Ben Lithgow was not telling the truth, or whether he would simply have been an unimpressive witness, I do not know.
While I have some reason for doubt I conclude that the bone was provided to Ms Johanson as described by Mr Blackledge. In other words, I conclude that Ben Lithgow and Ted Brown made the object on the premises of the butcher’s shop and that Ben Lithgow used it for its intended purpose, as a practical joke to share with a friend. Ben Lithgow placed the bone in the cool room with all of the other bones stored in the cool room in such a way that it could not be readily distinguished from any other bone. Ben Lithgow did not intend that the bone would be given to a customer but it was. It was innocently selected (probably by Christopher Finlay or possibly by Michael Pappas) from the cool room and sold to Ms Johanson.
I find that Ms Johanson took the bone home and that, on opening the parcel, she was revolted by it. She shared her sense of revulsion with her partner Colleen Schofield.
Given the series of incidents that had occurred at Fruitique which had concerned Ms Johanson she surmised that there might be some connection between her treatment at Fruitique and the bone incident. She spoke to Mr Zafir about it and he regarded it as amusing. There is no reliable evidence that Ms Johanson found it amusing. Neither, however, is there any reliable evidence that the staff at the butcher’s shop found the incident amusing at the time the bone was sold to Ms Johanson. The fact that Ms Johanson felt everyone was staring at her establishes nothing of significance. The fact that she recalls sniggering does not indicate that any of the staff in the butcher’s shop were necessarily aware of what she was being sold. Given her apparent treatment at Fruitique it is no surprise that Ms Johanson felt highly sensitive to what others might be thinking about her. I make no conclusions about the character of the treatment Ms Johanson received at Fruitique. Neither should I do so as her complaint has not been determined by HREOC. On the basis of the evidence before me, however, I am satisfied that Ms Johanson felt herself the object of a virtual campaign of harassment at Fruitique and she considered herself an outsider in a somewhat hostile environment. In her mind, this campaign of harassment was related to her sexuality and it is no surprise that she connected the bone incident to this campaign.
Under the SDA, sexuality is not a characteristic or attribute which is protected. Discrimination on the ground of sex is proscribed under the Commonwealth Act but discrimination on the ground of sexuality is not. The issue before me, however, is whether Ms Johanson has been the victim of unlawful harassment. This involves consideration of the provisions of the SDA dealing with sexual harassment and discrimination on the grounds of sex.
The SDA provides that one person sexually harasses another if:
·he or she makes an unwelcome sexual advance or unwelcome request for sexual favours to the person harassed or engages in other unwelcome conduct of a sexual nature in relation to the person harassed; and
·in the situation a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimidated.
I accept the applicant’s submission that the relevant elements for the purposes of s.28A are:
·conduct of a sexual nature;
·the conduct must be unwelcome;
·the person harassed is or would be offended, humiliated or intimidated by the conduct; and
·having regard to all the circumstances, a reasonable person would have anticipated that the person harassed would have felt this way.
Clearly, the sale of an ordinary dog bone is not conduct of a sexual nature. However, the provision of a dog bone shaped so as to resemble a human penis is conduct of a sexual nature. The test here is objective and it does not matter whether the perpetrator intended to act in a sexual way or, indeed, was aware that he or she was acting in a sexual way. The type of conduct that has been held to be conduct of a sexual nature includes exposure to sexually explicit material and sexually suggestive jokes: Bennett v Everitt (1988) EOC ¶92-244; Kiel v Weeks (1989) EOC ¶92-245; Horne v Press Clough Joint Venture (1994) EOC ¶92-556; Hooper v Mt Isa Mines (1997) EOC ¶92-879; Doyle v Riley (1995) EOC ¶92-748; Bebbington v Dove (1993) EOC ¶92-545; Hawkins v Malnet Pty Ltd (1995) EOC ¶92-767; G v R & Department of Health and Community Services (unreported, HREOC, 17 September 1993); Djokic v Sinclair (1994) EOC ¶92-643; Hill v Water Resources Commission (1985) EOC ¶92-127 and Freeshore v Kozma (1989) EOC ¶92-249
It is also clear that sexual harassment constituted by conduct of a sexual nature can be the result of a single act or single incident: Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217; and Leslie v Graham (unreported, HREOC, 21 July 2000). I was referred Miss Needham to the decision in Bennett v Everitt (op cit) where it was pointed out that the question whether a single action or statement can constitute sexual harassment depends on the nature or quality of the action or statement. Some conduct may be so troublesome or vexing to be of such a nature as to cause offence sufficient to constitute sexual harassment. On the other hand, other conduct would not. I accept that submission. On the other hand, I accept the applicant’s submission that there is no reasonableness test in relation to the nature of the complainant’s reaction to the relevant conduct. The test is whether a reasonable person would have anticipated that a complainant would be offended, et cetera: Kiel v Weeks (op cit).
In the present case the respondents conceded that the object was of its nature a shocking object. There is evidence, which I accept, from the applicant that she was offended, humiliated or intimidated by the provision of the bone. While I do not place great weight on the evidence of Ms Schofield it provides corroboration. Both Mr Blackledge and Mr Finlay expressed feeling shock on seeing the bone or a picture of it. Having regard to the evidence, and on my own inspection of the object, I am satisfied that a reasonable person would have anticipated that the applicant would feel offended, humiliated or intimidated as a result of receiving the bone.
There is no real issue as to whether the conduct was or was not unwelcome. It is clear that the applicant sought an ordinary dog bone. She in no way sought or invited the provision of the dog bone shaped like a penis.
It is apparent then that, prima facie, the essential elements of the claim of sexual harassment as defined by s.28A of the SDA have been made out. In the present case the conduct arose in the provision of a good which, prima facie, is rendered unlawful by virtue of s.28G of the SDA. There have been very few cases of sexual harassment in the course of the provision of goods or services. At trial, I was only referred to one such case by the applicant: Gwenda Evans v David Lee and Commonwealth Bank (1996) EOC ¶92-822. Following trial I have found two other cases: V v Australian Red Cross (unreported, HREOC, 18 February 1999) and Q v John Defelice (unreported, HREOC, 24 December 1999). All of those cases concerned overt sexual advances made by a provider of goods or services or their employees to the complainant. This is the only case of which I am aware concerning sexual harassment allegedly arising from the sale of a sexually explicit good.
The respondents say that the conduct complained of does not constitute sexual harassment within the meaning of s.28A of the Act. While a number of submissions were made in support of that proposition the immediately relevant aspects are that the sale of the bone was inadvertent and that it was a matter of pure chance that the bone was sold to the applicant. Having regard to the necessary elements establishing harassment for the purposes of s.28A and s.28G, I do not accept the submission that an accidental act cannot constitute sexual harassment. It is clear that there have been instances where employers have been found liable for harassment of employees in circumstances where offensive posters or other offensive material have been left around the workplace and seen by the complainant. In some instances this material was on display prior to the arrival of the complainant in the workplace. In G v R and the Department of Health, Housing and Community Services (unreported, HREOC, 23 August 1993) a toy in form of a jack-in-the-box with a penis substituted for the normal figure was put on the desk of the complainant’s husband. Other employees passed comments about the toy but these were not directed at the complainant. The complaint failed for other reasons but Sir Ronald Wilson found that the conduct complained of could constitute sexual harassment of the complainant even though she was not the target. Clearly, it is not necessary that the complainant be the conscious target of the offensive conduct. Sexual harassment can occur where the conduct is directed at a limited class of people (eg employees). I see no material difference in the case of conduct directed at customers or potential customers. Once a person chooses to engage in conduct of a sexual nature in which another person, whether the intended target or not, who has not sought or invited the conduct, experiences offence, humiliation or intimidation and, in the circumstances, a reasonable person would have anticipated that reaction, the elements of sexual harassment are made out.
An additional factor here is that the person who sold the bone, Mr Finlay, did not intend to sell anything other than an ordinary bone. But Mr Finlay was not the only employee involved and the act of sale of the bone was not the only relevant act that occurred in the shop. Ben Lithgow intentionally created a phallic object on the premises with the assistance of Ted Brown. After showing the object to his friend, Ben Lithgow placed it in the cool room with all of the other bones in such a way as it could not be readily distinguished from ordinary bones. It follows that while the sale of an offensive object was not a conscious act by the respondents or their employees the creation of the object and its retention on the premises in circumstances that gave rise to a reasonable likelihood of such sale were deliberate acts of an employee. When one examines all of the circumstances it is clear that a course of conduct was engaged in which exposed Ms Johanson to the risk of obtaining from the shop an offensive object that she did not want and which caused her serious offence. I conclude, therefore, that the elements of harassment for the purposes of s.28A and s.28G have been made out.
But that is not the end of the matter. The applicant submits that as well as constituting sexual harassment the conduct for which the respondents are allegedly responsible also constitutes sex discrimination for the purposes of sections 5 and 22 of the SDA. This claim was not pressed as a separate cause of action but for the purposes of demonstrating that the sexual harassment constituted discrimination on the grounds of sex under the SDA. The reason why this approach was taken is apparent from a perusal of s.9 of the SDA. The provisions of the SDA dealing with sexual harassment have limited operation, having regard to the terms of s.9(4) of the SDA. Only the following situations are covered:
·Sexual harassment of Commonwealth employees in connection with their employment as such and of persons seeking to become Commonwealth employees.
·The acts of a person in connection with the exercise of power conferred by a Commonwealth or Territory law, by or on behalf of (a) the Commonwealth or the Administration of a Territory, or (b) a body or authority established for a public purpose by a law of the Commonwealth or a Territory.
·The acts of a Commonwealth employee in connection with that person’s duties as such.
·Discrimination by an authority or body in the exercise of power under a Commonwealth law to confer, renew, extend, revoke or withdraw a qualification or authorisation. (This area of application applies only in relation to the prohibition against sexual harassment by a member of a qualifying body (see s.28C).)
·The acts of a member of staff of an educational institution established by a law of the Commonwealth or a Territory in connection with that person’s duties as a member of staff.
·The acts of an officer or employee of a foreign corporation, or of a trading or financial corporation formed within the Commonwealth, in connection with that person’s duties as such an officer.
·Without limiting the above, the acts of an officer or employee of a trading or financial corporation formed within the Commonwealth, in connection with that person’s duties that relate to the trading activities of the trading corporation or the financial activities of the financial corporation.
·Acts done in relation to the carrying on of the business of banking, other than State banking not extending beyond the limits of a particular State.
·Acts done in relation to carrying on the insurance business, other than State insurance not extending beyond the limits of a particular State.
·Acts done in relation to trade or commerce:
(i)between Australia and a place outside Australia;
(ii)among the States;
(iii)between a State and a Territory; or
(iv)between two Territories.
·Acts done within Australia involving persons or things, or matters arising, outside Australia.
·Acts done within a Territory.
Section 9(10) of the Act also provides that if the Convention on the Elimination of all Forms of Discrimination Against Women is in force in Australia (which it is), the sexual harassment provisions have effect in relation to discrimination against women, to the extent that those provisions give effect to the Convention. This provision extends the operation of the Act in relation to discrimination against women. The Convention deals with discrimination against women in general terms. Discrimination is defined to mean “any distinction, exclusion or restriction made on the basis of sex” which impairs or nullifies the “enjoyment or exercise by women … on a basis of equality of men and women, of human rights and fundamental freedoms” (Article 1).
It was held by Spender J, sitting as a single judge in the Federal Court, in Aldridge v Booth (1988) EOC ¶92-222 that sexual harassment amounted to discrimination under the Convention. The decision established that s.28 (which, before its repeal, contained the prohibition against sexual harassment), inter alia, of the Act gave effect to a principle of the Convention and that the enactment of that section was a valid exercise of the Commonwealth’s powers under s.51(xxix) of the Constitution to legislate with respect to external affairs. Even though the new provisions of Part II Division 3, which now proscribe sexual harassment, are wider, there is no reason to suppose that they do not give effect to the Convention.
In the present case, as in Aldridge v Booth (op cit) no corporation is involved nor is there any other connection with Commonwealth legislative power except that referred to in s.9(10), which relies upon the application of the Convention. Accordingly, the conduct of the respondents is not unlawful harassment under the SDA unless it also constitutes discrimination against women. In order to constitute discrimination, for the purposes of s.5, the conduct must involve the respondents treating the applicant less favourably than persons of the opposite sex, by reason of her sex or a characteristic that appertains generally to the applicant’s sex or a characteristic that is generally imputed to the applicant’s sex. In the context of the SDA, the applicant relies upon the decisions in Aldridge v Booth, Hall v Sheiban and Evans v Lee and Commonwealth Bank which have previously been referred to. However, all of those cases involved a complainant who was the conscious target of the conduct complained of and it was easy for the Court or HREOC to conclude that the complainant had been discriminated against by reason of her sex. That conclusion is harder here where the applicant was not the conscious target of the conduct complained of; indeed, it was, in effect, a lottery as to who would obtain the dog bone in question and, as a necessary consequence, what the sex of that person would be. The factual situation posed something of a dilemma for me. How could I conclude that the applicant was treated less favourably by reason of her sex or a characteristic pertaining to her sex when she had no greater chance of obtaining the bone than a man?
I was referred by Miss Needham to several cases in which it has been held that particular conduct did not constitute discrimination on the grounds of sex. In particular, I was referred to Boehringer v Reddrop (1984) EOC ¶92-108. In addition, I was referred by Miss Needham to the decision of the New South Wales Court of Appeal in Jamal v Secretary of Department of Health (1988) EOC ¶92-234 where Samuels JA held that conduct which may amount to discrimination must be deliberate. His Honour noted that the legislation there in issue did not concern itself with motive and neither did discrimination depend upon proof of some deliberate intention to injure. Nevertheless, his Honour found that the act which constitutes the discrimination must be advertent. That was a case of refusal to employ a doctor with, but not because of, a visual disability. The same view was adopted in Henderson v Electrolytic Zinc Co (1994) EOC ¶92-616 and in Director General of Education v Green (1984) EOC ¶92-015.
I find that reasoning persuasive. I have accordingly concluded that in order to constitute discrimination within the meaning of sections 5 and 22 of the SDA, and hence to constitute unlawful sexual harassment within the purview of the SDA by reason of s.9(10) of the SDA, the respondents must have engaged in some conduct which was deliberate and which was referable to the applicant’s sex, or a characteristic of her sex. I have concluded that that test has been satisfied on the evidence. As already noted, Ben Lithgow and Ted Brown deliberately made the object. Ben Lithgow deliberately retained it on the premises in such a way as it would be confused with other bones which were to be sold to customers. Mr Finlay deliberately sold the bone to Ms Johanson, although he was not aware of the characteristics of the bone. However, the question remains whether this conduct can be said to be related to the sex of the applicant, as a woman, in such a way that it can be concluded that the applicant was treated less favourably. It has been established that Ms Johanson reacted adversely to the bone when she unwrapped it. Her reaction was quite severe. It has also been established that a reasonable person would have anticipated that reaction. Mr Blackledge gave evidence as to his feeling of shock when he saw the bone. Mr Finlay gave evidence that he would not have wanted his wife to have received it. There is no evidence that the bone was crafted for the purpose of showing it to a woman. Ben Lithgow and Ted Brown made it for the purpose of Ben showing it to a male friend. The evidence suggests, and common human experience confirms, that the risk of a serious adverse reaction upon seeing such an object is considerably greater in the case of woman than a man. A man might find it amusing. A man might be angered by it which might provoke an aggressive reaction directed at the perpetrator but that exposes the perpetrator to the risk of harm not just the man who viewed the object. There was a serious risk that a woman receiving the bone would have been offended, upset and humiliated. That risk should reasonably have been anticipated and Ben Lithgow should have been aware of it. Nevertheless, Ben Lithgow engaged in a course of conduct which exposed female customers of the business to special risk. I conclude, therefore, that Ms Johanson, by being exposed to this risk, was treated less favourably than male customers were treated and hence that the act of harassment she experienced constituted unlawful sex discrimination within the meaning of s.5 of the SDA which was proscribed by s.22. I conclude, therefore, that Ms Johanson was the victim of unlawful sexual harassment within the purview of s.28A and 28G of the SDA.
VICARIOUS LIABILITY
The only respondents to the present proceedings are Mr and Mrs Blackledge, the owners of the butcher’s shop. They were not directly responsible for the unlawful harassment which occurred. Although the applicant purported to rely upon s.105 of the SDA, this was not pressed. Accordingly, the only basis on which the respondents can be held liable is by reason of the application of s.106 of the SDA, dealing with vicarious liability. Under s.106 of the SDA, an employer is deemed to be liable for the unlawful actions of an employee or agent. Once it is established that unlawful harassment or discrimination was perpetrated by an employee or agent of the person in connection with the employment of the employee or with the duties of the agent as an agent then the employer or principal is rendered liable unless the employer or principal can establish the defence provided by s.106(2). This is a defence which is common to state and territory legislation as well as the SDA, whereby an employer or principal will be able to sever the nexus with the offending employee or agent and thus not be vicariously liable for the sexual harassment which occurred. Such severance occurs when the employer or principal can prove, on the balance of probabilities, that he or she took all reasonable steps to prevent the employee or agent from contravening the legislation. Taking such reasonable steps would include having effective sexual harassment policies in place, together with strategies of counselling and compensation or amelioration for the parties concerned.
The first question, then, is whether the unlawful harassment was committed by employees of the respondents in connection with their employment. I find that it was. As already noted, the harassment occurred as a result of a series of actions committed by Ben Lithgow, Ted Brown and (probably) Christopher Finlay. All of those actions took place at the workplace and using workplace equipment and storage facilities. Although Ben and Ted made the bone for a private purpose I find that they made it in connection with their employment because it was made with the employer’s equipment on his premises during the period of their employment and, I assume, using a bone that was part of the respondents’ stock in trade. The bone was packaged in the same way as other stock available for sale and stored in the cool room with that other stock. The sale of the bone to Ms Johanson by Mr Finlay clearly took place in the course of his employment. In all the circumstances, I find that the necessary elements of s.106(1) have been established. The onus therefore passes to the respondents to establish the defence set out in s.106(2) of the SDA.
The applicant submits that the respondents took no steps to prevent the harassment and discrimination. Further, she submits that they failed to respond to her complaint made to the “manager” of the shop. Ms Eastman referred me to the decision of Greenhalgh v National Australia Bank (1997) EOC ¶92-884 where the failure of the respondent to take all reasonable steps to prevent its employee from sexual harassment in the workplace was brought about by not attending promptly to the allegations of the complainant once they were made known. I was referred to other decisions of similar import. The applicant also says that the respondents’ contention that they were not aware of the conduct or not present is irrelevant: Boyle v Ishan Ozden (1986) EOC ¶92-165. I accept that submission. In addition, it is no excuse to a claim of vicarious liability to argue that an employee was not authorised to sexually harass people (which might otherwise take the action out of the sphere of employment). Authorisation by the employer of the specific acts of harassment does not have to be shown before vicarious liability applies: State Electricity Commission of Victoria v Equal Opportunity Board & Others (1989) EOC ¶92-259.
The respondents submit that they did take all reasonable steps to prevent their employee(s) engaging in the conduct complained of by running their shop in accordance with good business practices and courteous service to customers. In this regard, the respondents rely upon the general oral instructions provided by Mr Blackledge to his employees to avoid acts of discrimination and to be courteous and fair to all customers.
Care needs to be taken when considering the meaning of the expression “taking reasonable steps to prevent the sexual harassment occurring”. The SDA does not distinguish between large and small employers, in terms of the availability of a defence under s.106(2): Gilroy v Angelov [2000] FCA 1775 at paragraph 100. As was apparent in that case, however, it would be unrealistic to expect all employers, regardless of size, to adhere to a common standard of preventative measures. This defence has been interpreted in Australia as requiring the employer or principal to take some steps, the precise nature of which will be different according to the circumstances of the employer. Thus, large corporations will be expected to do more than small businesses in order to be held to have acted reasonably. I note, however, that the reasonableness factor applies to the nature of the steps actually taken and not to determine whether it was reasonable not to have taken steps in the first place.
I was referred by Ms Eastman in further submissions after trial to the Sexual Harassment Code of Practice published by HREOC as a guide to what might be required of a small business. In her further written submissions made after trial Miss Needham submits that I should not have regard to that document because it was not brought to the attention of the respondents, there is no evidence that it formed a part of the Meat Industry Association’s recommendations, it contains suggestions, not prescriptions of law and Mr Blackledge orally informed all employees that sexual harassment would not be tolerated under any circumstances. Of course, cases before this Court as any other court, must be decided on the basis of evidence presented, submissions made and authorities identified. The Code is not evidence and neither does it have any binding legal authority. It is simply guidance offered by the Commonwealth authority having relevant functions under the HREOC Act. It is, nevertheless, an important document which is referred to at some length in the CCH Equal Opportunity Law and Practice service. I indicated to counsel at trial that I proposed to refer to the guide and I have done so. I am satisfied that there is nothing in the Federal Magistrates Act 1999 and nothing in the SDA or HREOC Act which prevents me from having regard to it.
The guide draws a distinction between general principles, strategies recommended for small businesses and strategies recommended for very small businesses. The applicant submits that the respondents’ business should be treated as a small business. In my view, however, the respondents’ business should be treated as a very small business in that fewer than six employees work in the shop at any time and the owners had direct contact with all employees and were responsible for overseeing all aspects of daily operations (notwithstanding that they were not present on the premises at all times). In the circumstances a written policy concerning sexual harassment is not regarded as necessary. This is a rather more generous approach than that taken in Gilroy v Angelov (at paragraph 82) but I am prepared to give the respondents the benefit of it. The strategy recommended by HREOC to very small businesses includes the following elements:
1.Orally inform all employees that sexual harassment will not be tolerated under any circumstances and that disciplinary action will be taken against an employee who sexually harasses a co-worker, client or customer;
2.Provide staff with brochures containing information on sexual harassment;
3.Inform new staff that it is a condition of their employment that they do not sexually harass a co-worker, client or customer;
4.Keep a diary note when staff are informed of the employers’ policy on sexual harassment which can then be used as evidence to show that the employer took steps to prevent sexual harassment if a complaint is later made to an external agency;
5.Have a recommended form of complaint handling procedure in place; and
6.Attend relevant seminars or training sessions and obtain any available resources on discrimination, harassment and their legal responsibilities from employer organisations, et cetera.
While Miss Needham submits that Mr Blackledge orally informed employees that sexual harassment would not be tolerated under any circumstances this is not supported by the evidence. The evidence given was that Mr Blackledge gave more general instructions to staff concerning their avoidance of discrimination and the appropriate ways of dealing with customers. There is no evidence that the respondents informed employees that disciplinary action would be taken against them should they engage in sexual harassment. No brochures were made available and there is no evidence that the respondents advised new staff that it was a condition of their employment that they should not sexually harass a customer or co-worker. It is telling that Mr Blackledge took no disciplinary action against either Ben Lithgow or Ted Brown when he became aware of their actions. He did dismiss Ben Lithgow but this was as a result of him becoming involved with drug dealers who entered the shop threatening Ben’s life. It is not enough to have a policy. One has to apply it. I find that the instructions given by Mr Blackledge to his employees were not specifically targeted at sexual harassment and were manifestly ineffective in their application.
I also find that the respondents did not have an effective complaint handling procedure in place to deal with complaints of harassment. I find that Ms Johanson did speak to either Mr Blackledge or one of his employees (and probably Mr Blackledge) some days after the incident. Whatever was said did not cause Mr Blackledge to take any action. Mr Blackledge knew, or should have known, that the incident was serious when he became aware of the involvement of the police. Still, however, he took no action apart from speaking to a few of his employees who he thought were most likely to have been involved. He did not make any effort to speak to Ms Johanson or to attempt to resolve the matter. He appears to have assumed that the complaint was frivolous until such time as he saw the bone.
It was, of course, open to Ms Johanson to bring the bone back to the shop and to complain directly about it in that fashion. However, it is understandable that Ms Johanson, being revolted by the object, did not want to carry it about with her, and having regard to what she saw as a campaign of intimidation against her, it is understandable that she did not wish to “make a scene” in the butcher’s shop. It should not be up to a customer to continue to complain to a point where the shop keeper realises the seriousness of the complaint. I find that a complaint was made which came (or should have come) to the attention of Mr Blackledge in two ways – first, as a result of Ms Johanson speaking to him or one of his employees and secondly by reason of her complaint to the police. That should have been sufficient for Mr Blackledge to have activated some form of complaint handling process. He did not because there was no, or not effective, process in place.
Accordingly, I find that the respondents have not established that they have a defence under s.106(2) and they are vicariously liable for the conduct of their employees.
ASSESSMENT OF LOSS
The applicant seeks compensation for the cost of remedial counselling, and the damage she has sustained as a result of the discrimination and harassment. The damages claim is based upon a claim for special damages and general damages. The special damages claimed comprise $4,800 for reduction in income, $2,730 for additional expenses involved in travelling to work and travelling to shop and $1,872 for 12 psychological attendances at an approximate value of $156 each. The applicant seeks general damages for depression and stress relating to her relocation of employment and the deterioration and eventual breakdown of her relationship with her partner and pain and suffering over the incident which could have been dealt with with a prompt apology.
I accept the applicant’s submission that damages should be assessed on a torts placed principle on placing the applicant in the situation she would have been in had the discrimination and harassment not occurred: Gilroy v Angelov (op cit) and Shiels v James and Lipman Pty Ltd [2000] FMC 2.
On the other hand, I also accept the respondents’ submissions concerning a lack of established causation of any loss related to the change in the applicant’s employment. I find that the incident of the bone was not a significant factor in causing the applicant to change her employment. She changed jobs because of dissatisfaction with her employment at Fruitique.
In addition, the evidence shows that the applicant is financially significantly better off in her new employment than she was at Fruitique.
As to the cost of psychological counselling, I prefer the evidence of Doctor Lewin to that of Mr Anns. I regard the report of Mr Anns as unreliable because of the inadequate history from which it was prepared. Doctor Lewin found that Ms Johanson suffered from a mild adjustment disorder as a result of the incident. He considered that her condition had substantially resolved by the time of his examination of Ms Johanson and there were no outward signs of any problems at the time Ms Johanson gave evidence in Court. Ms Johanson had taken no steps until very recently to avail herself of the counselling which was suggested to her and the value of that counselling has, on the evidence, substantially reduced. At its highest, three counselling sessions may now be of assistance. The cost of each session was only given as an approximate figure. Accordingly, I allow $500 for the cost of that counselling.
There is no other allowable claim for special damages.
As to general damages I accept the respondent’s submission that damages for injury to feelings should be restrained in quantum though not minimal. On the other hand, I also accept the applicant’s submission that awards compensating for injured feelings should not be so low as to diminish the respect for the public policy of the legislation: Horne & McIntosh v Press Clough Joint Venture (1994) EOC ¶92-591 at p77, 179. The applicant seeks aggravated damages in this case on the basis that the respondents’ approach to the complaint exacerbated the applicant’s sense of humiliation and indignity. It is true that the respondents were slow to recognise the seriousness of the complaint and that they probably could have resolved the matter quickly and cheaply if they had in place an appropriate complaints handling procedure and followed it. It is probable than an apology offered promptly would have resolved the matter. However, the respondents did not through any positive actions aggravate the matter. I find no evidence that the respondents were in any way involved in the events at Fruitique which were a continuing aggravation to the applicant. The respondents would have been better advised to act promptly and effectively to resolve the matter but the cost of their tardiness is this litigation and the costs and damages that they will have to pay. The applicant has herself potentially aggravated her condition, or at least extended its duration, by not promptly seeking counselling. I do not consider that this is an appropriate case for an award of aggravated damages.
This case concerns a single incident. It concerns an incident which was accidental. There were no overt sexual advances to the applicant and neither was there any history of harassing events for which the respondents bear responsibility apart from the sale of the bone.
I also find that the sale of the bone to the applicant did not cause her to terminate her relationship with her then partner. No persuasive evidence has been provided to establish such a link.
The respondents submit that the range of compensation that might be awarded for injury to feelings in a case such as the present would be in the range of $200 to $5,000 and that this case stands at the lower end of that range. There is some historical support for that position but in recent times there has been a tendency for damages awards for non economic loss to increase. In Shiels v James (op cit) Raphael FM reviewed a number of cases and found that the current range for damages for hurt and humiliation is between $7,500 and $20,000. He was, however, looking at cases dealing with overt and sustained sexual harassment. In the higher range of those judgments the activities complained of constituted either more physical action or more substantial physical sequelae. In that case, Mr Raphael awarded $13,000. That case concerned a series of events constituting harassment by an employer which caused the complainant to leave her employment. This case is substantially less serious, being a single event which was accidental and which did not cause the applicant either to leave her employment or to terminate the relationship with her partner. Accordingly, the award of damages for non economic loss should be at least at the lower end of the scale.
The applicant was shocked and revolted when she first saw the bone. Doctor Lewin found that she was either intensely distressed by the incident or in consequence of it the applicant experienced a mild adjustment disorder. This was severe enough to prevent the applicant returning to the respondents’ shop. The applicant’s reaction was severe enough to cause her to complaint to the police. In the applicant’s mind, the bone incident was related to events at Fruitique and was part of a campaign of harassment because of her sexuality. The applicant’s state of mind would not have been assisted by the fact that her mother was in the final stage of a terminal illness. That is not the respondent’s fault, but the perpetrator must take his victim as he finds them. The incident caused the applicant at least severe short term distress and some enduring feelings of distress which moderated over time, and which had largely dissipated by the time of the trial of this application. The hurt and suffering experienced by the applicant was initially substantial and has taken some two years to resolve. This calls for an award of damages of some significance, between the range sought by the applicant and that suggested by the respondents.
In all the circumstances, I have decided that an award of $6,000 in general damages is appropriate. I have decided to reduce that amount by one third, in recognition of the voluntary apology made by the respondents. That apology, although made very late in the proceedings, must have a beneficial effect on the applicant’s feelings. Interest will be payable on the award of damages in accordance with s.77 of the Federal Magistrates Act and the Federal Court Rules. There was no application for pre-judgment interest under s.76 of the Federal Magistrates Act.
COSTS
The applicant has succeeded in these proceedings and costs should follow the event. I agree with the views expressed by Raphael FM in Shiels v James at paragraph 80 concerning the general desirability of an award of costs in favour of a successful applicant in human rights proceedings, so as to avoid an award of damages being swallowed up by the cost of litigation.
ORDERS
The Court declares that, be reason of the conduct of employees of the respondents, the applicant has been the victim of unlawful sexual harassment and that the respondents are vicariously liable for that unlawful harassment.
The respondents are to pay damages of $4,500 to the applicant as compensation for the unlawful sexual harassment.
The respondents are to pay the applicant’s costs of these proceedings which, if not agreed, are to be taxed in accordance with the Federal Court Rules.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
I certify that the preceding one hundred and twenty one (121) paragraphs are a true copy of the Reasons for Judgment of Driver FM.
Associate:
Dated 1 March, 2001
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