Jones v Armas Nominees Pty Ltd

[1994] IRCA 151

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 1245 of 1994

B E T W E E N :

NARELLE JONES
Applicant

AND

ARMAS NOMINEES PTY LTD
T/AS NETWORK RENT A CAR

REASONS FOR JUDGMENT

Before:       Judicial Registrar Millane
Place:         Melbourne
Date:          22 December 1994

By an application made on 21 July 1994 the Applicant seeks the following relief under s.170EA of the Industrial Relations Act 1988 (“the Act”):

1(a)An order declaring that the termination by the Respondent of the employment of the employee has contravened Division 3 of Part VIA of the Industrial Relations Act 1988;

(b)An order requiring the Respondent to reinstate the employee in employment;

and

(c)An order that the Respondent pay compensation to the employee.

2.Such other orders as will put the employee in the same position (as nearly as can be done) as if the employment of the employee by the Respondent had not been terminated: see section 170EE of the Act.

The following witnesses were called to give evidence:

(i)     by the Applicant -
         - The Applicant
         - Lisa Rowena Cubitt, counsellor

(ii)     by the Respondent -
         - Robert Jenkins, manager, Network Rent A Car
         - Frank Amato, director of the Respondent company
         - Pedda Lee Amato, assistant manager, Network Rent A Car

At the commencement of the proceedings the parties sought and were granted the following consent orders:-

1.That pursuant to Order 6 Rule 9 of the Industrial Relations Court Rules Bob Jenkins cease to be a party to the proceeding.

2.That pursuant to Order 10 Rule 11 of the Industrial Relations Court Rules Armas Nominees Pty Ltd (ACN 004 703 208) (trading as Network Rent A Car) be substituted for the second named Respondent Network Rent A Car.

3.That the title of the proceeding be amended to refer to the Respondent as Armas Nominees Pty Ltd ACN 004 703 208 (trading as Network Rent A Car).

The solicitor on the record for the original Respondents undertook and pursuant to such undertaking did file on the same day a notice of appearance on behalf of the substituted Respondent.

The application

The Applicant is a young woman and mother of two children aged 2 1/2 years and 5 years respectively.  She is and in July this year was, separated from her husband and attempting to pay off her own home.

After obtaining her HSC certificate the Applicant was employed in a variety of jobs over a period of six years, which jobs variously included clerical and accounts work, typing, customer relations and the operation of her own business as a florist in Romsey.  The Applicant has completed an Australian Floral Art Course, a computer course and a small business management course.

In July 1994 the Applicant was seeking permanent part-time employment and on or about 4 July 1994 she applied for and subsequently obtained employment from 11 July 1994 with Network Rent A Car at Mt Alexander Road, Ascot Vale as a rental clerk. This employment ceased on 25 July 1994. It is alleged by the Applicant that her employment was unlawfully terminated in that it was brought to an end by the Respondent’s manager, Robert Jenkins (“Jenkins”) telling her that “things weren’t working out”, with no specific reason or reasons being advanced at the time of termination. Further it is alleged that the reason or one of the reasons for her termination was that she had been sexually harassed by Jenkins during the course of her employment. She took steps to stop this harassment and because of this had her employment terminated. She received no payment in lieu of notice in accordance with Section 170DC although she was paid up to the date of the termination for the hours worked. Essentially, her case was that there was no valid reason for the termination of her employment and if there was found to be a valid reason such termination was harsh, unjust and unreasonable. Further, that the reason or one of the reasons for her termination contravened Section 170DF(1)(f) because she was terminated by reason of her sex.

The Respondent argued a number of positions. The first was that the Applicant had been employed for a probationary period of two weeks from 11 July 1994 to 25 July 1994. Alternatively, the Applicant was a casual employee engaged for a short period. On either of the preceding bases the Respondent alleged the Applicant was, by reason of Regulation 30B of the Industrial Relations Regulations, excluded from the operation of subdivisions B, C, D and E of Division 3 of Part VIA of the Act.

Even if the Respondent was unsuccessful in the abovementioned arguments it further argued there were valid reasons relating to the Applicant’s work performance for terminating her employment and such termination, despite the lack of compensation in lieu of notice and any precise identification of the reasons for termination at the relevant time, was not harsh, unjust or unreasonable. The allegations of sexual harassment were denied and, in particular, the Respondent argued that, even if such allegations were found to be true, the Applicant’s allegation of sexual harassment was not a reason or one of the reasons for termination of the Applicant’s employment. Moreover the provisions of Section 170DF(1)(f) could not be relied on in this case because any termination of employment generated by the Applicant’s response to sexual harassment by an employee of the Respondent was not a termination the reason for which was the Applicant’s “sex”.

The contract of employment
It is not contested that shortly prior to 4 July 1994 the Respondent through it’s manager Jenkins placed with the Niddrie office of the CES a notice of job vacancy for a rental clerk (Exhibit A4).  The pertinent information in that notice was -

“A CAR RENTAL COMPANY REQUIRES A RENTAL CLERK.  DUTIES INCLUDE PHONE ANSWERING AND QUOTATIONS, DELIVERY, PICK UP AND CLEANING OF VEHICLES AND GENERAL OFFICE DUTIES.  POSITION IS PERM P/TIME  MAY LEAD TO PERM FULL TIME.

SHIFTS BW 8.00 - 6.00 (30-34 HRS).  SOME W/E

$ AWARD.

23+ START DATE ASAP TRANSPORT OWN AND LICENCE

EXPERIENCE IN SIMILAR WORK WOULD BE AN ADVANTAGE.  MUST BE WELL PRESENTED.  OFFICE AND TYPING SKILLS AN ADVANTAGE.  LIC. ESSENT.  MUST SRW ENGLISH WELL FOR CUSTOMER CONTACT.  D. LIC. ESSENT...” 

The CES office arranged an interview between the Applicant and Jenkins at 4.30pm on 4 July 1994 at the premises of Network Rent A Car in Ascot Vale.
Dealing only with the facts alleged to give rise to the contract of employment and the terms of that contract it is alleged by the Applicant that when she attended the first interview she was informed by the Jenkins as follows:-

(a)the Respondent wanted someone for permanent part-time employment and someone he, Jenkins, could get along well with;

(b)the position was long term.  This was because the last employee Hermann was not satisfactory and the remaining employee, Pedda Amato, was the boss’s daughter.  “Things” were not working out with Pedda and he wanted “a right hand woman to work alongside”.

There was a second interview arranged by telephone for approximately 7 or 8 July 1994 at which interview the Applicant alleges she and Jenkins went through the job particulars such as the job requiring her to pick up clients at the Melbourne Airport and drop them at various destinations around Melbourne, answer telephones and wash cars.  The Applicant could not recall discussing how much she would be paid but she did recall a great deal of discussion about the hours she would be required to attend her employment if she was employed.  It was the Applicant’s evidence that because of her domestic commitments she needed to know the hours she would be required to work to make arrangements for her children with the creche.  The Applicant recalled Jenkins telling her that the hours would be between 20 and 30 hours per week and he wanted her to be flexible.  By the time the Applicant left the second interview she had been offered employment from 11 July 1994.  She denied any reference in either interview to any probationary period of employment or any agreement that she would be engaged as a casual employee.

In his evidence in chief Jenkins alleged that at both interviews the hours of employment were discussed including the need to be flexible.  Further, casual rates of pay were discussed as well as a two week trial period to enable each party to assess the other.  Jenkins had only been employed by the company at its Ascot Vale office for some months prior to him interviewing the Applicant.  The lastmentioned office comprised three employees.  Jenkins referred to the company having a policy of a trial period of employment for new employees, which policy was applied to his employment when he joined the company.  A director of the Respondent company, Frank Amato (“Amato”) confirmed this policy claiming that such policy had been in place some 10 years or more.  However, despite the lengthy period of its implementation, no corporate documents were produced at hearing evidencing such policy.

In cross examination Jenkins conceded that he had asked the Applicant if she was looking for permanent part-time employment and, further, asked her whether she was going to be a long term employee.  Moreover, he agreed that he “may have used the words: it is a permanent part-time position” and that he had indicated to the Applicant there was a possibility the position would be full-time.  When pressed, Jenkins alleged he had not used the word “probationary” at interview, rather he had used the word “trial”.  In re-examination he claimed the words used were “There is a two week trial period”.

On balance, the contents of the notice placed by Jenkins with the CES office, the concessions made in cross examination and the lack of consistency in his evidence lead me to the conclusion that a probationary period of employment was not the subject of discussion at either interview or on any occasion prior to the Applicant accepting the offer of employment and commencing her employment with the Respondent.

The Respondent further relied on evidence that during the two weeks the Applicant was employed she received payment at the hourly rate of $10.52, a rate of pay paid to casual employees.  The Respondent pointed to the flexible hours of employment and the employment of Pedda Amato, the other rental clerk, as a casual employee.  At the date of giving her evidence Pedda Amato had been promoted to the position of assistant manager some two weeks prior to the hearing of this proceeding.  Her hourly rate of pay had been reduced to reflect the change from casual rates to permanent rates.  On one view of the circumstances of this case this position as assistant manager resembles the permanent part-time position offered to the Applicant as Jenkins’ “right hand woman”.

Whilst the Respondent conceded that within a day or so of the Applicant commencing her employment, and at the Applicant’s request, Jenkins prepared a roster for all three employees at the Ascot Vale office, it was alleged that the Respondent and its employees did not adhere to that roster because the work available very much depended on the demands of the rental clientele.  The irregular hours were said to be indicative of casual employment.

In determining whether, on the balance of probabilities, Jenkins did indeed tell the Applicant that the position was one for a casual employee, I am struck by the contradiction between the CES job notice for a permanent part-time employee with the prospect of full-time employment, the reiteration of these matters during interview with the Applicant and Jenkins present claim that in interview he effectively offered the Applicant a completely different contract of service as a casual employee.  On the evidence the Applicant, because of her domestic and financial needs, was more likely than not seeking permanent part-time employment.  Both the Applicant and Jenkins agreed that before and after she commenced her employment the Applicant pressed Jenkins on a number of occasions for details of the hours she would be required to work, which behaviour is consistent with a belief that her employment was permanent part-time employment.  From these matters I conclude that the Applicant was looking for continuity of employment, albeit in a part-time capacity, and that the CES job notice and the representations made by Jenkins in interview led her to expect continuity of employment.  It follows from this I am not satisfied that any reference was made to the employment being casual employment prior to the Applicant entering into the contract of service with the Respondent.

The sexual harassment allegations

Turning away from the nature of contract of service and any period of probation, it is alleged by the Applicant that the reason or one of the reasons for termination of her employment was because she took steps to stop Jenkins from sexually harassing her.

The sexual harassment was said to have occurred both in the interview period leading up to employment and during the currency of the employment.

The Applicant attended the first interview on 4 July 1994 on short notice.  Because of this and with the consent of Jenkins obtained through the CES representative the Applicant attended that interview casually dressed in jeans.  At that interview the Applicant alleges Jenkins took her into the kitchen whilst talking to her and made a cup of coffee.  According to the Applicant there was no need to close the kitchen door on this occasion because access to coffee and cups et cetera could be had without closing the kitchen door.  On the other hand Jenkins asserts that because of the design of the kitchen the access to the coffee and cups in the cupboards is gained by closing the entry door in order to open the cupboard doors.

Jenkins arranged the second interview by telephone and it is not contested that he told the Applicant that she should attend that interview and “dress to impress”.  Jenkins in evidence in chief recalled that he followed this last comment with the explanation “as if you were going to meet a client at the airport or pick up or drop off a client at the motel”.  This explanatory statement was not put to the Applicant in cross examination.  Jenkins told the court that the Applicant had been inappropriately attired at the first interview because she had come from the CES office and he was attempting “to stress the point that it was a more dress-type position”.  At no stage did Jenkins concede that the use of such a phrase may have caused disquiet or offence and that the Applicant might interpret the phrase as meaning that Jenkins required her to impress him.

The Applicant recalled that at the second interview when she greeted Jenkins “he looked me up and down and said that I had come up all right”.  She also testified to feeling a bit uncomfortable at that interview.  Jenkins conceded that he made the comment alleged but believed it to be a harmless comment.

Between the date of the second interview and commencing work on 11 July 1994 the Applicant was telephoned by Jenkins who asked her to come into his office to go over a few particulars.  She queried the particulars he was referring to and Jenkins was unable to answer her.  There is some suggestion that he “muffled the phone over again and put me on hold”, which prompted the Applicant to ask him what was going on because at that stage he had still been unable to tell her precisely what her hours were going to be to enable her to organise her children.  She demanded to know why he wanted her to come to his office and why he could not tell her the reason by telephone.  Jenkins response was that he needed some references.  Because of that last request the Applicant agreed to attend the office.  However, Jenkins then asked her for some prior work details and said “that’s fine, come in and start Monday”.  Although the Applicant attended the earlier interviews armed with references Jenkins did not ask to look at these and by the date of the telephone conversation had already offered the Applicant the job; such offer being accepted by the Applicant at the second interview.

In cross examination Jenkins agreed he telephone the Applicant on or about 7 July 1994 and complained that he had not been able to contact her and that he asked her to attend his office to “go over a few particulars”.  This he said was done to satisfy himself that “the doubts I had about her aggressive and pushy attitude shown at the interviews could be worked out and that we could in fact form a good relationship at work”.  Jenkins agreed he did not elaborate on what matters he wished to discuss with the Applicant and he could not remember if she made the statement “well, you can’t set me my hours and now you are requesting to see me but can’t say why”.  He did however agree that they discussed her hours of work again “because we again got into a heated discussion”.

Both sides agree that during the interviews and, indeed, on subsequent occasions when the issue was raised the Applicant pressed Jenkins to clarify precisely what hours she was to work.  On each occasion, the Applicant states, Jenkins became angry with her and was unable to tell her what those hours would be.  The pressure applied by the Applicant in interview and on the occasions when the subject of her hours was raised with Jenkins was variously described by Jenkins in his evidence as being indicative of the Applicant’s “aggressive and pushy attitude”.

As a result of the exchange during the telephone conversation Jenkins withdrew the offer of employment and hung up.  Subsequently, the Applicant rang Jenkins and asked him if “they could work out the problem”.  Jenkins recollection was that the Applicant was almost crying, pleading for the position because it really was the job she needed.  He then offered her the job again.

Given Jenkins’ assessment of the Applicant’s attitude prior to her commencing employment it seems very strange indeed that he offered the job to her at all.  On the other hand, the Applicant’s need to have some certainty about the hours she worked and her economic need to have a permanent part-time position are consistent with her desire to keep the job despite Jenkins’ behaviour.

Counsel for the Respondent, Mr O’Grady, submitted that the events pre-dating the commencement of the contract of employment are not relevant to the question of whether the Applicant was the subject of sexual harassment in the course of her employment.  In my view such evidence is at the very least relevant to determining the attitude of Jenkins and to establishing a course of conduct carrying over into the period of employment.

After commencing her employment the Applicant alleges that on the first day Jenkins arranged by telephone for her to collect clients from the Southern Cross Hotel.  She recalls hearing him speaking on the telephone and whilst doing so he was “looking me up and down and telling them that I wasn’t bad”.  Jenkins could not really recall the client booking and denied making the statement attributed to him.

On the first day the Applicant alleges Jenkins “couldn’t stop touching me and making body contact at every opportunity”.  The Applicant describes the physical contact in the following ways “he touched my shoulders and made out it was in a friendly manner”, “he put his arms around my shoulders one time and told me I was going to be fine, just, sort of, squeeze me, he just couldn’t stop making body contact with me the whole day”.  He did not use her first name  and addressed her as “love, darling and my dear”.

In cross examination Jenkins agreed “I may have put my hand on her shoulder to show her something”.  Otherwise he denied any other physical contact.  He agreed that from when the Applicant first applied for the job he referred her as “love, darl or dear”.  Jenkins explained this by saying “....I am not saying it is right, but yes, its a common term to refer to woman as love or dear...it would only be used frequently to those that I would be working with whether they were young or old”.  Interestingly enough, Pedda Amato’s evidence suggests that he was not in the habit of calling her “love” or “dear” but had only done so on occasions during the course of her employment.

Some of the exchange in cross examination between the Applicant’s counsel, Mr Flowers, and Jenkins is as follows and reflects Jenkins’ attitude:-

“On that second day, Narelle complained to you about that behaviour, did not she? - - - I am not sure that it was the second day, but certainly she did complain to me.

What was your response to that? - - - I consider that yes, I had been calling her love or deary, et cetera and that as she had expressed that she didn’t like that, I would endeavour to stop doing so.

Yes, but you got annoyed at her insistence in that regard, did not you? - - -At the way she forcibly walked to the desk and confronted me with it, I think that it could’ve been put another way.  Again, it was part of her aggressive nature.

So at all times towards you, during these first two days, she is always aggressive, is she? - - No, not necessarily aggressive towards me individually.

She is always aggressive in demeanour, is she? - - - She was aggressive in general.

At all stages you attempted to deal with that aggression in a calm and rational manner, did you? - - - I don’t know that I attempted to deal with it at all.

So when she asked that she be called by her name you were annoyed at that, were not you? - - - The way in which I was asked, yes.

You said to her there were a lot of things you do not like? - - I may well have, yes.

Do you recall her saying in response to that statement; I would like to have a professional working relationship with you, and I would like you to treat me with respect.  Do you recall her asking you to treat her - - - ? - - -.  Not the exact words, but to that effect, yes.

Yes, she asked you to treat her with respect, that is the case is not it? - - - I don’t remember the exact words, but words to that effect, yes.

...Did you modify your behaviour after that day, after that request? - - - I endeavoured not to call her love or deary.

Frequently you did, did not you? - - - I believe I did slip up on occasions, yes.”

There were other incidents on the first day including an altercation between Jenkins and some irate customers resulting in the female customer calling him “a fucking sexist pig”.  Jenkins did not recall this phrase but did recall being referred to as an “effing so and so”.

It is also alleged by the Applicant that a woman came into the showroom to speak to Jenkins and when she left “Bob told me that she plays with herself”.  The Applicant’s interpretation of this comment was “it seemed like he wanted to get me to joke around with him sexually, I don’t know but I felt very uncomfortable about it and just ignored the comment”.  The lastmentioned incident was denied by Jenkins.

The Applicant broached the subject of her hours on the first day and alleges that, again, this subject annoyed Jenkins who took “...his glasses off, sat down and made a big deal out of it, telling me you didn’t think things - he asked me - “how do you think things are going to work out”, threatening me with my position there”.  According to the Applicant this exchange led to Jenkins drafting the work roster (Exhibit A1) for the next day, covering the first two weeks of employment.

On the second day of her employment the Applicant wore a longer dress because she says she was feeling uncomfortable with Jenkins looking at her all the time.  His reaction was to say “Wow...do you think you would be able to clean cars?”  Jenkins could only recall the comment relating to the cleaning of cars.

Another incident early in the Applicant’s employment involved the Applicant telling Jenkins that he “must be crazy” after he declined to deliver a vehicle to a customer for a one day rental.

Jenkins’ response was “He started swearing at me.  He just went right off the handle at me”.  The Applicant alleges that she again asked Jenkins to treat her with respect and not to swear at her.  He responded by saying “There are a lot of things you don’t like”.

In cross examination Jenkins somewhat surprisingly denied that he believed the Applicant’s behaviour on this occasion was impertinent.  After being pressed he conceded he had become angry with the Applicant and told her “you must be thick”.  However, he denied swearing at her.

In the Applicant’s view Jenkins used every opportunity to lean over and touch her and “sit really close” to her while she was being taught by him to complete rental documents.  She did concede that most of the physical contact occurred in the first day and thereafter she dealt with it by moving away from Jenkins, although on one occasion he put his arm around her and she “was pretty scared, I didn’t know what he was going to do next”.

The Applicant gave evidence that during the course of her employment and leading up to the termination of that employment she was “quite distressed”, “having palpitations” and was “hyperventilating”.  She sought and obtained counselling at Abercare Family Services in Niddrie.  She attended for 2 months and went to the centre sometimes 3 days per week “when this was happening”.  The counsellor was Lisa Cubitt (“Cubitt”) who was called by and gave evidence on behalf of the Applicant.

Cubitt is a counsellor who holds a Bachelor of Social Work.  She gave evidence that the Applicant saw her over the July/August period for “personal reasons”, not in relation to the Applicant’s divorce.  The Applicant’s counsel, Mr. Flower, informed the court that the only basis upon which he sought to have Cubitt give evidence was on the question of damages.  This approach was accepted by the Respondent’s counsel, Mr O’Grady so long as there was no attempt to rely on this witness’ evidence as being proof of the sexual harassment allegations.

Within the abovementioned limitations Cubitt informed the court that she had been telephoned by the Applicant who was “fairly distressed” and had complained of sexual harassment at work.  She describes the Applicant as feeling “... humiliated, very vulnerable, needed to dress in a different way because of feeling vulnerable at work.  In a letter dated 20 September 1994 Cubitt recorded her observations as to the Applicant’s state of health.  The letter was tendered in evidence without objection save for the last paragraph which was not tendered (Exhibit A 3).  The letter refers to “... distress, sleepless nights, humiliation, loss of employment and income”.

In cross examination Cubitt was unable to specify the date of the telephone call in which the Applicant first complained of sexual harassment.  She did however, elaborate on the complaints made to her which included “... Leering, feeling very unsafe, not wanting to - there was a back room that Narelle talked about and mentioned that she didn’t feel safe being in there on her own because there was nowhere else for her to go if he came in.  There were a lot of comments he made to her... she had to change her dress - the way she dressed at work.  She did mention it to her boss’s boss and no action was taken...”.

The Applicant gave evidence that in approximately the first week of her employment she met Amato who was Jenkins’ superior.  Amato was located at Footscray and it would be fair to say had little direct involvement in the day to day running of the Ascot Vale operation.  The first meeting involved a brief conversation however there was a second meeting in about the same week when the Applicant and Amato dropped one car off in the city and returned to Ascot Vale together in a second vehicle.  During this journey the Applicant alleges she told Amato that she “... was not happy with the way that Bob was treating me.  I told him that he is not calling me by my name or, you know calling me “love” and “my dear”.  In cross examination she went further to say that she told Amato “... I didn’t like the way that Bob was treating me by touching me.  He couldn’t keep his hands off me”.  In response to her complaint the Applicant alleges Amato became defensive and told her that “... Bob was my boss and I had to answer to him”.

In his evidence in chief Amato’s recollection of the conversation during that meeting was somewhat different.  He recalled the Applicant stating that she was happy with the job but not with the management; that is to say, the way the business was run.  She referred to Jenkins’ manner and the way he treated customers and stated that, in her view, he mistreated the customers.  If she was in charge she would not let that sort of thing happen.  She asked Amato if she could report directly to him.  He told her that Jenkins had employed her and was her immediate supervisor.  Amato said that there was no complaint of sexual harassment made to him.  Indeed, he had not had any complaints about Jenkins of a sexual nature or about the way Jenkins treated any of his employees.  A great deal of emphasis was placed on evidence that Pedda Amato, Amato’s 19 year old daughter, was employed with Jenkins at the Ascot Vale office and made no complaint of sexual harassment.  Amato recalled that the first complaint of sexual harassment from the Applicant was when she telephoned him at Footscray at about 6.30pm or 6.45pm on the day her employment was terminated by Jenkins and asked Amato if he knew that Jenkins had dismissed her.  He alleges he responded in the negative but added that he was not surprised because of her manner.  Apparently he had discussed her manner with Jenkins prior to the termination.  However, this discussion was not alluded to by Jenkins in his evidence.

Amato recalls the Applicant stating “do you know that he has been sexually harassing me?”.  Amato was surprised by this allegation and  asked her what she meant by that.  She then told him that at interview Jenkins could not keep his hands off her and that she had to keep her hands folded to stop him.  Amato’s response was to tell her that he did not believe that it was “in Jenkins’ nature” to do this.  In making this remark he took into account the time he had known Jenkins and the type of positions Jenkins held prior to him commencing his employment with the Respondent.  He also mentioned that he did not think it suited Jenkins’ character.  The Applicant responded by saying “well that’s right you would take his side anyway”.  Amato alleges that the Applicant wanted him to reinstate her, otherwise she threatened to take the matter further.  He in some way interpreted her approach as amounting to blackmail and refused to, as he put it “bend with her”.

In cross examination it was put to Amato that during the conversation in the motor vehicle the Applicant mentioned that she was not happy with being called “love, dear or darl or words to that effect?”.  Given his evidence in chief I was surprised to hear Amato agree that this complaint was made, that he agreed to speak to Jenkins about this complaint “if it upset” the Applicant and he spoke to Jenkins on this subject.  Jenkins’ evidence was that he desisted on his own initiative.  There was no suggestion that at any stage he had been spoken to by his employer about, at the very least, the use of the abovementioned words to address a female employee.

The thrust of the evidence given by both Jenkins and Amato was that the Applicant in approaching Amato and asking to report to him directly was being “pushy” and assertive because she was suggesting that she could manage the business better than Jenkins.  It was not, in their view, because she had difficulties arising out of the treatment she was receiving from her immediate superior.
As at July 1994 the company had no policy in place to train or counsel employees on matters of sexual harassment.  Even though he eventually conceded that the Applicant had, at the very least complained about the way in which Jenkins addressed her and asked to report to him directly, Amato clearly could not understand that the complaint of itself might amount to a complaint of sexual harassment or discriminatory behaviour on the part of the Manager.  There is no evidence that he investigated her complaint or treated it with any seriousness.  On the contrary he appears to have accepted Jenkins view that the Applicant’s  “manner” was the problem.  By this I took him to mean her “pushy” and “aggressive” attitude.  At the date of termination rather than investigate the further and specific complaint of sexual harassment he automatically defended Jenkins without initiating any enquiry or giving the Applicant the opportunity to establish the truth of her claim and retain her employment.  It is also worth noting that at no stage did he suggest to the Applicant that her employment could be terminated because it was probationary and casual employment.

On her last day of employment, after collecting customers from the airport, the Applicant asked Jenkins if there was much happening on the next morning and on receiving a negative response asked if Jenkins needed her at 8.00am.  His reply was “no actually I won’t be needing you anymore”.  The Applicant thought he was joking and said so.  He said “no, I am not joking things aren’t working out”.  Jenkins refused to give her wages until she returned an office manual.  Because she felt uncomfortable returning to the Respondent’s office she arranged to leave the manual at the Moonee Ponds police station and her wages were, in turn, delivered to the police station for collection by her.

Essentially Jenkins did not dispute the Applicant’s account of the termination of her employment on 25 July 1994.  He alleges that he already made a decision to terminate her at the end of the two week period of probation.  After receiving a telephone call from Amato on the same evening Jenkins alleges he telephoned the Applicant and tried to tell her the reasons for her dismissal.  These reasons included allegations that she was not getting along with other staff including Jenkins, that there were customer complaints and the Applicant was not completing her duties.  Jenkins recalls that the Applicant insisted these were not the real reasons and that Jenkins knew what real reasons were.  In passing I note there was no suggestion by Jenkins that he told the Applicant either before he terminated her employment, or during the telephone conversation with her later that evening, that her employment was probationary and casual employment and could be determined by the Respondent at will or within the two week period of probation.

In cross examination Jenkins agreed that in the telephone conversation on the evening of the termination of the Applicant’s employment Jenkins expressed his annoyance and anger because the Applicant had “gone over his head” to Amato.  In that telephone conversation he claimed the Applicant made no mention to him of sexual harassment.  In contrast, the Applicant recalled that during the telephone conversation Jenkins identified the reason for her dismissal as being that she had not changed the oil and water in a motor vehicle.  She, in response said, that “the reason was “sexual harassment” and she would take the matter further.  Jenkins replied “Sexual harassment - that’s what you are doing to me”.

I find it more probable than not, given the telephone call from Amato to Jenkins after Amato received from the Applicant a direct complaint of sexual harassment, that, in the ensuing telephone call between the Applicant and Jenkins, the allegation of sexual harassment was a central feature of their exchange.  Jenkins’ demeanour in the witness box, his improbable response to matters such as that raised by the last telephone conversation and, more importantly, his refusal to acknowledge that at any stage his behaviour, even where that behaviour was admitted, could or did cause any offence to a female employee lead me to the view, that where there is conflict between the evidence of the Applicant and Jenkins, the former’s evidence should be preferred.

I was not addressed by the Applicant’s counsel on the meaning of the phrase “sexual harassment” or what test or tests I should apply in determining whether the incidents complained of by the Applicant could be construed as evidence of sexual harassment in the workplace.  On the other hand, the Respondent’s counsel, Mr O’Grady, did make reference to the State and Commonwealth Legislation on this subject and was anxious to point out that there was no explicit request for sexual favours and no intention, according to Jenkins’ evidence, to offend the Applicant.

In a recent defamation proceeding Pezzimenti v Seamer & others, (County Court of Victoria, 30 September 1994 No. MC922854 unreported) Judge Ostrowski was required to determine the truth of words published of and concerning the Plaintiff where it had been said that the Plaintiff intimidated and harassed female patrons of a leisure centre.  In determining the truth of the statements made His Honour was obliged to decide what the words complained of conveyed to the ordinary reasonable member of the community.  He said at page 9 of his judgment:-

“To “harass” is not an unusual verb either. It connotes the worrying or troubling of someone by repeated unwelcome behaviour. The essential element behind the verb to “harass” seems to be the repetition of the troubling behaviour. In the words complained of, the two verbs intimidated and harassed are used in conjunction with the word “female”. As I understand the use of language by the Victorian community generally, I believe that the use of the word “harassed” in conjunction with the word “female” draws the listener’s or reader’s attention to a specific area of behaviour which has been gaining prominence as a social evil over the past 20 years or so. In 1984 the Equal Opportunity Act 1977 was repealed by the Equal Opportunity Act 1984. The latter Act contained a heading to its Division 2 of Part III, (being Sections 19 and 20): “Sexual Harassment”. That phrase was not defined in the Act but Section 20, in making unlawful the behaviour therein described, made it moderately clear what Parliament considered sexual harassment. It spoke of a person being put into the situation in which that person was induced to “accept.... sexual advances.... tolerate persistent sexual suggestions or innuendo...”. The Act being an Equal Opportunity Act, spoke of persons. However I have little doubt in my mind that the evil at which the Act was aimed with respect to its sections 19 and 20 was an evil which was seen to have been suffered for a very long time by women. The social evil called harassment, which was a type of behaviour of men towards women was well understood by 1991, not only in Victoria but in England (see Khorasandjian v Bush (1993) 3 All England Reports 669.)  In the January 1993 edition of the “Harvard Law Review” (Vol. 106, p. 517) Professor Cynthia Bowman, in an article entitled “Street Harassment and the Informal Ghettoization of Women”, says: “until relatively recently, for example, no term even existed to describe what is now universally called sexual harassment “although the phenomenon itself was well known to women.” (p. 518).  However, later in the article she points out that in 1981 an anthropologist had offered a working definition of street harassment: “Through looks, words, or gestures, the man asserts his right to intrude on the woman’s attention, defining her as a sexual object, and forcing her to interact with him” (p. 524).  The definition is of “Street Harassment” i.e. activity in public places.  I consider however, that that part of the definition which I have quoted is a good working definition of what the average Victorian understands harassment to be, though he may have difficulty in verbalising it.  It will be noted that in that definition nothing is said about repeated activity.”

On the evidence before him His Honour ultimately concluded that the words used were true, that there was harassment of women at the centre and, further, that it was not relevant what the plaintiff intended and understood his conduct to be.

The Commonwealth Sex Discrimination Act 1984 goes further than the Victorian Act in providing a definition of “sexual harassment” as follows:-

28A(1) [Sexual harassment defined] 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.

28A(2) [Interpretation] 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.

In a seminar paper delivered to the recent International Bar Association Conference in Melbourne Professor Phillip Tahmindjis examined the difference between the State and Commonwealth legislation (see seminar paper entitled “Sexual Harassment - Its Nature and Resolution Processes under Australian Anti-Discrimination Law”, Joint International Bar Association Law/Institute of Victoria seminar Thursday 13 October 1994).  An inconsistency referred to by the Professor was in the notion of reasonableness in sexual harassment law.  At page 6 of his paper he observes that the Commonwealth legislation:-

“requires that a person sexually harasses another person where the circumstances are such that a reasonable person (in the shoes of the harasser) would have anticipated that the victim would have been offended, humiliated, or intimidated. On the other hand, the legislation in Victoria, South Australia, Western Australia and in the ACT approach this issue from the point of view of the reasonableness of the victims reaction to the offending actions”.

In summary “sexual harassment” is both sexual and unwelcome, may be constituted by many or a single act and, broadly speaking, the intention of  harasser is not relevant.  Applying either legislative test it is arguable that a reasonable person in Jenkins’ position would have anticipated that the Applicant would be offended by his behaviour where that behaviour amounted to conduct of a sexual nature.  Further, it is arguable, that the Applicant’s reaction to Jenkins’ behaviour was reasonable and certainly not disproportionate.  She tried to avoid physical proximity, dressed differently and asked to report directly to Amato.  The definition of “sexual harassment” adopted by Judge Ostrowski in the Pezzimenti case may also be relevant to the facts of this case because through looks, words and gestures, Jenkins intruded on the Applicant’s attention thereby defining her as a sexual object and forcing her to interact with him.

In Aldridge v Booth(1988) EOC 92-222 there was a complaint of sexual harassment against an employer. Spender J. found that Aldridge
would not have been harassed had she not been a woman.  Clearly, sexual harassment is but one form of sex discrimination.

Section 170DF(1) of the Act says:-

“An employer must not terminate an employee’s employment for any one or more of the following reasons, or for reasons including any one or more of the following reasons:

(f)     race, colour, sex, sexual preference, age, physical or mental           disability, marital status, family responsibilities, pregnancy,                 political opinion, national extraction or social origin.

It would not be difficult to determine that  a termination by reason of an employee’s sex; that is to say her gender, offends against the prohibition contained in the abovementioned section.

Mr O’Grady argued on behalf of the Respondent that termination of the Applicant’s employment because of her response to Jenkins’ behaviour was not a termination by reason of the Applicant’s “sex” for the purposes of Section 170DF (1)(f). Mr O’Grady submitted that, that part of the section was intended to apply to, for example, a homosexual whose homosexuality is revealed to his employer, resulting in the termination of his employment. In my view the reference to “sexual preference” in Section 170DF(1)(f) is designed to meet the lastmentioned situation. In effect, Mr O’Grady’s submission was that Section 170DF(1)(f) insofar as it refers to “sex” has a very narrow operation. I cannot agree with this proposition. One of the objects of the section is to prohibit the termination of employment based on an employee’s sex; that is to say it is a prohibition against sex discrimination in the termination of employment. That discrimination may take the form of “sexual harassment” or behaviour an employee is subjected to because of the employee’s sex.

The Respondent carries the burden of showing that the Applicant’s employment was not terminated by reason of or for reasons which included her sex (S.170EDA(2)).

On the evidence it is open to the Court to find, and I do so find, that the Applicant would not have been subjected to the harassment she experienced (or stating it in a less emotive way, the behaviour she experienced) had she not been a woman.  Jenkins behaved towards the Applicant in the manner described because of her sex.

It is alleged by the Applicant that the Respondent’s reason, or one of the reasons for terminating her employment, was because of her reaction to the sexual harassment. If that was the case the prohibition contained in Section 170DF(1)(f) applies because the termination of the Applicant’s employment is causally related to her sex. Notwithstanding the position adopted by the Applicant in characterising all of Jenkins’ behaviour as “sexual harassment”, it seems to me that the Applicant does not have to go this far to obtain the benefit of the prohibition contained in the Act. The behaviour whether or not it was of a sexual nature was behaviour she was subjected to because of her sex. For instance, Jenkins’ evidence was that he called her “love” “darl” or “deary” because he addressed female employees in this way.

The Respondent’s allegations of poor work performance as valid reason for termination

For a complete picture of what occurred during the Applicant’s employment it is also necessary to consider the reasons advanced by the Respondent as valid reasons for terminating the Applicant’s employment on 25 July 1994. In view of my finding that the employment was neither probationary nor casual employment, if S170DF(1)(f) of the Act does not apply to this case the Respondent must still prove that there was a contemporaneous and valid reason for the termination of the Applicant’s employment. I have already noted above that Jenkins in his evidence in chief offered three reasons for the termination, after he had terminated the Applicant and on the same date as he terminated her employment. He thought that she was not getting along with other staff including himself, there were customer complaints and the Applicant was not completing her duties.

At hearing it was alleged by Jenkins that over a period of time it became obvious that the Applicant was not and did not appear to fit into the job.  The reasons given included -

(a)The Applicant was off-hand and showed little interest.  “There was almost an aggressive attitude which was not only towards myself but towards other members of the staff and even customers would ask what was wrong - you know she didn’t talk, she doesn’t talk - just general comments of this nature about a personality problem I believe”.  There was no evidence of any counselling of or discussion with the Applicant concerning her alleged personality problem; nor evidence that Jenkins drew her attention to any customer complaints about her manner;

(b)The Applicant had a haphazard approach to the washing and cleaning of vehicles.  She did not empty ashtrays, she was not washing the outside of the vehicles properly and she did not check the oil, water and other fluid levels of the vehicle.

Jenkins alleges he explained all these things to the Applicant at the commencement of her employment and when he pointed these shortcomings out there was an off hand reply to the effect “well I’ll do better next time”.  Despite his efforts to train her according to Jenkins the performance of the Applicant did not improve.  The Applicant denied having been instructed to put oil in the motor vehicles.  I note from the CES job description (Exhibit A4) there is no reference to that employment duty.  There is a reference to the cleaning of vehicles.  The Applicant denies any complaints concerning the cleaning of cars other than one occasion when Amato asked her to empty an ashtray she had forgotten to empty.

(c)The Applicant took longer than other staff members to do banking; that is to say normally it would take 20 to 30 minutes and she took 40 to 45 minutes with no “legitimate” explanation as to why it took so long.  According to Jenkins this occurred on two or three occasions.  In her evidence the Applicant alleged she did the banking every day, it took her 10 to 15 minutes, it had never taken 40 to 45 minutes.  She received no complaint about this task and there is certainly no evidence that she was ever counselled or warned of any threat to her employment.

(d)There was also an alleged incident where customers complained that the Applicant was not at the airport to collect them as arranged.  This incident the Applicant explained by indicating that she and the customers had missed meeting one another.  She eventually found them as they were telephoning Jenkins.  Apart from this allegation there were no other specific incidents alluded to by Jenkins to identify customer complaints.

(e)Jenkins complained that the Applicant did not complete rental forms correctly.  This was an important exercise because the forms were the basis of the agreement between the Respondent and the customers.  Three forms were tendered in evidence by the Respondent (Exhibit R1).  Apart from corrections on the forms the most significant omission on one form was where the customer had not signed the non-waiverable excess section of the form thereby placing the Respondent at risk on the excess payable following any collision.  Jenkins also complained about the Applicant not initialling alterations.  In cross examination three other rental agreements were tendered (Exhibit A2) which agreements Jenkins agreed he had completed as to part without initialling alterations.  It is important to keep in mind that the Applicant was completing a period of training under Jenkins’ supervision.  She claimed that because of his behaviour towards her she was experiencing difficulty in the teaching arrangement generally.  The complaint regarding the completion of the rental agreements was not advanced as a reason for termination at the date of termination or during the subsequent telephone discussion with the Applicant.  Therefore, it cannot amount to a contemporaneous valid reason for termination.  Not surprisingly, there is no evidence of counselling or warnings generally on this issue;

(f)On one occasion the Applicant accidentally took the keys from a motor vehicle home with her.  This clearly caused some inconvenience and necessitated other keys being cut by the Respondent.  Ultimately Jenkins declined to pay her for one hour’s work on a Saturday morning in compensation for the cost of having an additional set of keys cut.  There was no suggestion at the time that this event could lead to termination of her employment, nor was she was counselled or warned because of it.  In any event, this omission was not advanced as a reason for the termination on 25 July 1994.

I am not satisfied that any of the abovementioned examples of poor performance were indeed valid and contemporaneous reasons for terminating the Applicant’s employment.

Apart from the lack of any real substance to the allegations of poor performance, in reaching my conclusions I have taken into account the fact that the reasons for termination were given only after the Applicant telephoned Amato on the date of her termination of her employment and in effect alleged that “sexual harassment” was the reason for her termination.

Even if the reasons given are construed to be valid reasons the process by which the employment was terminated was harsh, unjust and unreasonable inasmuch as no reasons were given at the time of the termination, no opportunity was made available to the Applicant to explain her performance or improve that performance and there were no warnings.  The manner in which she was terminated was high handed and lacked the dignity of any explanation for bringing her employment to an end.  Such explanation as was offered came about after the Applicant complained to Amato of sexual harassment.  He, in turn, chose to ignore the complaint made, thereby compounding the injustice this woman experienced in the termination process. 

The evidence of Jenkins’ superior, Amato, was that he, Amato, was expecting the Applicant’s employment to be terminated because of her “manner”.

Whether Jenkins’ unwelcome behaviour is characterised as being “sexual harassment” or not, I find, on the evidence that one of the reasons for the termination of the Applicant’s employment was her sex.  She reacted adversely to his unwelcome behaviour (behaviour directed at her because of her sex) and Jenkins and the Respondent chose to interpret her reaction as being “pushy and aggressive”, thereby justifying summary termination of her employment.  It follows from this that the prohibition contained in S170Df(1)(f) was breached by the Respondent, there being a causal nexus between the termination of the Applicant’s employment and her sex.

Remedy

Neither party sought reinstatement as a remedy.  I am satisfied that such a remedy is impracticable because of the size of the office environment, only three employees, and the necessity for the Applicant to work in close proximity with Jenkins if she returned to the Respondent’s employ.  Amato gave evidence that there were no other positions available in any other division of the company.  In any event the Applicant has, since approximately the end of August 1994, been employed as a bookkeeper earning $190.00 per week.  The CES job description referred to a 30-34 hour per week job with the Respondent.  Notwithstanding this, the Applicant agrees she was told at interview that her hours would be between 20 and 30 hours per week; although in the two weeks she worked for the Respondent she did not reach the maximum of 30 hours per week.

In calculating the Applicant’s entitlement to remuneration I have adopted 25 hours per week as a reasonable average giving a gross earning of $263.00 per week. I have allowed damages of one week’s wages for the breach of Section 170DB(1) of the Act. I have also allowed a further three week’s wages by way of compensation for lost remuneration under Section 170EE(3); namely $789.00.

Relying on the Applicant’s evidence and the evidence of Cubitt the Applicant’s counsellor I accept that the Applicant was very distressed by the manner in which she was treated during the course of her employment and by the circumstances surrounding the termination of that employment. The Act, whilst it requires this court to have regard to the remuneration the Applicant would have received, does not attempt to limit the matters which may be considered in awarding compensation.

There was passing reference to award provisions applying to this employee and on that basis the maximum sum available to her would be $6838.00 gross for a six month period.

Given the problems between Jenkins and the Applicant and the rather short period of her employment it could hardly be said that she had any real  job security with the Respondent.  Taking this into account, as well as the loss of remuneration of $789.00 and the distress suffered by the Applicant arising out of the termination I have assessed the total compensation payable in the sum of $3,000.00.

MINUTES OF ORDERS

THE COURT ORDERS AND DECLARES:

1.That pursuant to Order 6 Rule 9 of the Industrial Relations Court Rules Bob Jenkins cease to be a party to the proceeding.

2.That pursuant to Order 10 Rule 11 of the Industrial Relations Court Rules Armas Nominees Pty Ltd (ACN 004 703 208) (trading as Network Rent A Car) be substituted for the second named Respondent, Network Rent A Car.

3.That the title of the proceeding be amended to refer to the Respondent as Armas Nominees Pty Ltd ACN 004 703 208 (trading as Network Rent A Car).

4.That the termination of the employee’s employment contravened Division 3 of Part V1A of the Industrial Relations Act 1988.

5.That pursuant to S170EE(5) of the Industrial Relations Act the Respondent pay to the Applicant damages in the sum of $263.00.

6.That pursuant to S170EE(3) of the Industrial Relations Act 1988 the Respondent pay to the Applicant compensation in the sum of $3000.00.

NOTE:  Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.

I certify that this and the preceding thirty-eight (38) pages are a true copy of the reasons for judgment of Judicial Registrar Millane.

Associate:            
Dated:  22 December 1994

Solicitors for the Applicant:    Messrs Mason Sier Turnbull
Counsel for the Applicant:     Mr Andrew Flower

Solicitors for the Respondent: Messrs Wainwright Ryan
Counsel for the Respondent:   Mr Chris O’Grady

Date of hearing:  24 & 25 November 1994
Date of judgment:                   22 December 1994

C A T C H W O R D S

INDUSTRIAL LAW - Termination of Employment - Sexual harassment as reason for termination of employment - meaning of the prohibition in s.170DF(1)(f) against termination by reason of “sex” - meaning of phrase “sexual harassment” - probationary employment - casual employment.

Industrial Relations Act 1988 ss.170DB, 170DF(1)(f), 170EDA(2)
Industrial Relations Regulations - Regulation 30B
Sex Discrimination Act 1984 (Cth)

CASES:Pezzimenti v Seamer & Others (unreported, Judge Ostrowski, County Court of Victoria, 30 September, 1994)

Aldridge v Booth (1988) EOC 92-222

Professor Phillip Tahmindjis - Seminar paper “Sexual Harassment - Its Nature and Resolution Processes under Australian Anti-Discrimination Law”, (Joint International Bar Association/Law Institute of Victoria Seminar, Thursday 13 October 1994).

NARELLE JONES -v- ARMAS NOMINEES PTY LTD T/as NETWORK RENT A CAR

No. VI 1245/94

Before:  Judicial Registrar Millane
Place:  Melbourne
Date:  22 December 1994

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 1245/94

B E T W E E N :

NARELLE JONES
         Applicant

AND

ARMAS NOMINEES PTY LTD
T/as NETWORK RENT A CAR
Respondent

MINUTES OF ORDERS

Judicial Registrar Millane       22 December 1994

THE COURT ORDERS AND DECLARES:

1.That pursuant to Order 6 Rule 9 of the Industrial Relations Court Rules Bob Jenkins cease to be a party to the proceeding.

2.That pursuant to Order 10 Rule 11 of the Industrial Relations Court Rules Armas Nominees Pty Ltd (ACN 004 703 208) (trading as Network Rent A Car) be substituted for the second named Respondent, Network Rent A Car.

3.That the title of the proceeding be amended to refer to the Respondent as Armas Nominees Pty Ltd ACN 004 703 208 (trading as Network Rent A Car).

4.That the termination of the employee’s employment contravened Division 3 of Part V1A of the Industrial Relations Act 1988.

5.That pursuant to S170EE(5) of the Industrial Relations Act the Respondent pay to the Applicant damages in the sum of $263.00.

6.That pursuant to S170EE(3) of the Industrial Relations Act 1988 the Respondent pay to the Applicant compensation in the sum of $3000.00.

NOTE:  Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.