Kordas v Ruba and Jo Pty Ltd t/a Aztec Hair and Beauty

[2017] NSWCATAD 156

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Kordas v Ruba & Jo Pty Ltd t/a Aztec Hair & Beauty [2017] NSWCATAD 156

Hearing dates:

9 March 2017

Date of orders:

25 May 2017

Decision date:

25 May 2017

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

A Scahill, Senior Member
J Newman, General Member

Decision:

1. The complaint of sexual harassment by Mr Rony in November 2014 is substantiated.

 

2. The Complaint of sexual harassment by Mr Eaton from December 2014 to February 2015 is substantiated.

 

3. The complaint of victimisation against Ruba & Jo Pty Ltd the Respondent is substantiated.

 4. Ruba & Jo Pty Ltd is to pay to Mr Kordas within 21 days the sum of $30,000.

Catchwords:

Sexual harassment; Victimisation

Legislation Cited:

Anti-Discrimination Act 1977
Evidence Act 1995

Cases Cited:

Alexander v Home Office (1988) 2 All ER 119
Borg v Commissioner, Department of Corrective Services & Anor [2002] NSWADT 42
Brown v Richmond Golf Club & Anor [2006] NSWADT 104
Caton v Richmond Club Limited [2003] NSWADT 202.
Commissioner of Police, NSW Police v Mooney (No.3) [2004] NSWADTAP 22
Hall v Sheiban Pty Ltd [1989] FCA 72; (1989) 85 ALR 503 at 531
Hughes v Narrabri Bowling Motel Limited [2012] NSWADT 161
Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20
Richardson v Oracle Corporation Australia Pty Ltd and Tucker [2014] FCAFC 82
Shellharbour Golf Club v Wheeler [1999] NSWSC 224

Category:

Principal judgment

Parties:

Arthur Kordas (Applicant)
Ruba & Jo Pty Ltd t/a Aztec Hair & Beauty (Respondent)

Representation:

Solicitors:
Mr Moore (Applicant)
No Appearance (Respondent)

File Number(s):

2016/00378075

Publication restriction:

N/A

REASON FOR DECISION

Background

1. Mr Arthur Kordas was employed as an apprentice hairdresser at Ruba & Jo Pty Ltd trading as Aztec Hair and Beauty in Tuggerah NSW (Aztec) from approximately 27 November 2014 to 17 February 2015. On 20 March 2015, Mr Kordas lodged a complaint with the President of the Anti-Discrimination ADB (ADB) alleging that he was subjected to sexual harassment and victimisation during his employment with and subsequent termination of employment from Aztec Hair and Beauty. The President accepted Mr Kordas’ complaint for investigation of allegations of conduct said to have occurred during the period 1 December 2014 to 17 February 2015.

2. The Tribunal summarises Mr Kordas’ allegations as follows. Mr Kordas states that he was sexually harassed by his manager Mr Rony and by a work colleague Mr Eaton who was his trainer. Mr Kordas states that he made a complaint to his boss Mr Syeed Rony about the treatment. Mr Kordas told Mr Rony that he wanted change in the workplace. Mr Kordas claims that his employment was terminated after complaining to Mr Rony about the bullying and sexual harassment in the workplace.

Respondent’s response to the allegations

3. The Anti-Discrimination ADB wrote to Aztec Hair and Beauty on 21 May 2015 advising them of Mr Kordas’ allegations and seeking their response to the allegations. The ADB wrote again on 9 July 2015, requesting the Respondent’s response to the allegations. On 6 August 2015, the Respondent replied to the ADB through their legal representative. The Respondent stated that the incidents alleged by Mr Kordas were not raised at any time during his employment. The response stated that Mr Rony, Mr Kordas’ boss, has a zero tolerance to such bullying, harassment or discrimination within his workforce. Mr Rony denied the allegations of sexual harassment and victimisation. Mr Rony said that Mr Kordas’ employment had been terminated for performance reasons.

4. The matter could not be resolved. Mr Kordas requested that the ADB refer his complaint to the New South Wales Civil and Administrative Tribunal for determination on 26 March 2016. The matter was heard by the Tribunal on 9 March 2017.

Decision to proceed in the absence of the Respondent

5. On the day of hearing, there was no appearance from the Respondent. The Tribunal noted that the Respondent had been served notice of the hearing at an address that had been provided by the Respondent at mediation in July 2016. The Tribunal had held three case conferences in the matter. On 29 June 2016, Mr Rony represented the Respondent at the case conference. The matter was listed for mediation at Gosford Court on 19 July 2016. The matter did not resolve at mediation. The matter was listed again for a case conference on 5 October 2016. On this occasion, the solicitors previously representing the Respondent advised that they were no longer acting. The Tribunal was advised that Mr Rony was on leave. The matter was listed for a further case conference on 14 December 2016. On this occasion, there was no appearance again for the Respondent. The matter was listed at that time for hearing on 9 March 2017. The Tribunal was satisfied that in the interim, the Respondent had been advised of the hearing date by the Tribunal by letter sent to the address provided by the Respondent as an address for service. Mr Kordas told the Tribunal that the business was still going on in the same place.

6. The Tribunal determined that it should proceed to hear the matter in the absence of the Respondent. The Tribunal was satisfied that the Respondent had been provided with notification of the hearing and that it had been the Respondent’s choice not to attend.

The Hearing

Documents before the Tribunal

7. The Tribunal had before it:

• the President of the ADB’s report which contained the original complaint and the Respondent’s response dated 6 August 2015;

• the Applicant’s statement of 31 August 2016; and

• a bundle of medical reports provided by the Applicant.

The Applicant’s case

8. There were 2 aspects to the Applicant’s case – complaints of sexual harassment by Mr Eaton and Mr Rony and victimisation by the employer after Mr Kordas complained to Mr Rony about his treatment in the workplace and was later dismissed.

The Evidence in the Sexual Harassment Complaint

9. The Applicant relied on the contents of the President’s report and his own statement dated 31 August 2016. The Applicant also provided medical reports and certificates in support of his case.

10. Mr Kordas gave sworn evidence to the Tribunal. He adopted his statement of 31 August 2016. The Tribunal sets out the contents of Mr Kordas’ statement as follows.

11. Mr Kordas held the position of apprentice hairdresser at Aztec Hair & Beauty, Westfield Tuggerah NSW from approximately 27 November 2014 to 17 February 2015.

12. In or about the latter part of 2013, he was diagnosed with depression and he commenced taking medication. He has continued to take medication from that time. He has continued to consult with a health professional, approximately once a fortnight to the present.

13. From about January 2014, the Applicant undertook fitness training approximately 2-3 times per week. In or about October 2014, he commenced taking karate lessons twice a week.

14. Mr Kordas stated that immediately prior to November 2014, his mental condition felt stable and he felt that he had a healthy sense of self-esteem. He felt confident to start actively seeking employment.

15. In or about early November 2014, Mr Kordas attended upon Contour College, Tuggerah NSW to apply to study a Certificate III in hairdressing. He was referred to an apprenticeship opportunity with Aztec Hair & Beauty, Tuggerah [Aztec].

16. He attended Aztec for a job interview that was conducted by part-owner of Aztec, Mr Sayeed Rony.

17. After the interview, Mr Rony offered Mr Kordas a one-day trial-period at Aztec, which commenced approximately two weeks after the interview had taken place.

18. On or about one week after the one-day trial, Mr Rony offered Mr Kordas an apprenticeship as a part-time hairdresser, working 25 hours per week. Mr Kordas commenced working at Aztec on 27 November 2014. Mr Kordas did not receive any induction or training prior to commencing.

19. On his first day of employment, Mr Kordas worked at Aztec alongside Mr Rony, Mr Eaton, and Jess, supervisor of Aztec at that time.

20. On his first day of employment, Mr Kordas washed hair, swept floors and did mostly cleaning duties.

21. His first week of employment proceeded without any real issues. However Mr Kordas felt uncomfortable on a few occasions when Mr Rony lightly stroked his palm when he would give Mr Kordas money to go and buy some things for the salon, such as washing detergent. Mr Kordas stated:

“The way he touched my hand seemed slightly flirtatious to me. I did not say anything to Mr Rony when he did this on these first couple of occasions because I had not had employment for a 6-year period and really wanted to make a go of the job.”

22. When he commenced working at Aztec, Aztec employed 2 full-time hairdressers, Mr Eaton and Jess, and approximately 6 part-time hairdressers; Lauren, Mika, Michelle, Carley, Sophie and Mr Kordas.

23. There were approximately 8 people working in the salon. It was one big room with a counter. There were stations on the left for hair cutting and stations on the right. At the end of the shop there was a kitchen. There was also a beauty room and a small room.

24. In the first week of employment, Mr Kordas asked Jess for instruction as to how to perform a few tasks. Jess responded by saying aggressively, “Just figure it out!”

25. Approximately a couple of weeks after he had started working at Aztec, Mr Kordas’ friend walked past the front entrance to Aztec. Mr Kordas asked his friend into Aztec to show Mr Eaton how he had cut his friend’s hair. His friend stayed for less than a minute and then left Aztec.

26. As soon as Mr Kordas’ friend had walked out of Aztec, Mr Eaton said to Mr Kordas, in a very aggressive manner, words to the following effect:

"Don't bring your ratty friends into the shop. You're making the shop look bad, and the old ladies won't want you anywhere near them!"

27. This was witnessed by another employee of Aztec, Sophie. About five minutes after Mr Eaton had said this to Mr Kordas, Mr Eaton walked out of earshot and Sophie said to Mr Kordas words to the following effect:

"Whenever stuff like that happens, I just agree with them, and don't answer back. Just take it."

28. Mr Kordas stated that from about his first shift working with another employed hairdresser of Aztec, named Michelle, she began ordering him around the salon in an aggressive and demeaning manner. She would stop him from doing his duties to speak to him disparagingly about how he was doing them.

29. Michelle told him that she had been treated in this manner when she was an apprentice. He could not recall if Mr Rony, or Jess, were in the salon as acting supervisors when this occurred.

30. Generally, either Mr Rony, or Jess, were in the salon on each shift, acting in the capacity of supervisor.

31. After about his first two weeks of employment, Mr Rony designated Mr Eaton to be his hairdressing trainer when he was at work.

32. In or about late December 2014 or very early January 2015, Mr Kordas was blow-drying a client's hair when Mr Eaton told him that he was not doing it correctly. Mr Eaton then took the hair dryer from him, stood behind Mr Kordas and told Mr Kordas to put his hand on top of Mr Eaton’s hand while Mr Eaton held the hair dryer. Mr Kordas demonstrated this in his evidence to the Tribunal. Mr Eaton’s actions brought the 2 men’s bodies very close to each other. This made Mr Kordas feel very uncomfortable. He could see no reason for having to put his hand on top of Mr Eaton’s hand as instructed. He felt embarrassed and humiliated.

33. Approximately one week after that incident, Mr Eaton was instructing Mr Kordas how to blow-dry a client's hair. This time, Mr Kordas did not have his hand on top of Mr Eaton's and was just observing, however Mr Eaton said in a voice loud enough for the clients and employees of Aztec to hear, words to the following effect:

"We're like a gay couple. We argue like a gay couple. We're close."

34. Again, this made Mr Kordas feel extremely embarrassed and humiliated. In reaction to this, Mr Kordas smiled and said nothing as he really wanted to keep his job. Mr Kordas thought that Mr Rony was located at the salon counter, approximately a metre away from where Mr Eaton and Mr Kordas were standing, but Mr Rony did not say anything.

35. Prior to this incident occurring, at no stage had Mr Rony said to Mr Kordas that he should report any issues that he had, or incidents that occurred, to him. Mr Kordas felt that the environment in Aztec was one where he was the apprentice and should just put with anything that occurred.

36. Soon after this incident, in approximately early January 2015, Mr Kordas walked in to commence his shift at Aztec at about 11am. He observed that Mr Eaton was making foils by cutting out aluminium foil with a ruler, behind the salon counter. Mr Rony, and a trainee named Ben, were standing behind the counter of the salon. Mr Kordas leaned over the top of the counter to say hello to them, and Mr Eaton walked around the counter and behind him and slapped Mr Kordas on the bottom with the ruler he had been using. Immediately after doing this, Mr Eaton said words to the effect:

"You should slap me on the bum. I like being slapped on the bum."

37. Again, Mr Kordas felt extremely humiliated and demeaned by Mr Eaton slapping him on the bottom. He smiled it off and pretended that nothing had occurred. Mr Rony had observed Mr Eaton slap Mr Kordas with the ruler, but he did not make any comment to Mr Eaton, or Mr Kordas, about it. To Mr Kordas’ knowledge, the trainee, Ben, observed Mr Eaton slap Mr Kordas with the ruler.

38. In or about mid-January 2015, Mr Eaton was teaching Mr Kordas how to put a cape on a female client and how to get their hair out of the way by using a clip. On one occasion, Mr Kordas did this incorrectly and left the clip in the female's hair. Upon seeing this error, Mr Eaton took the clip from the client's hair and threw it on the floor and said sarcastically to Mr Kordas words to the effect:

"Sorry, I threw the clip on the ground."

39. Mr Kordas picked the clip up and put it back in the drawer and carried on with his duties. Mr Eaton's throwing the clip on the ground made Mr Kordas feel anxious and angry, due to the way he was being treated in the workplace.

40. At or about this same time, in mid-January 2015, Mr Kordas was trying to be positive at work, even after all the things that had happened to him. On this day, Mr Kordas had a conversation with Mr Eaton in words to the following effect:

Mr Kordas:   "We get along well here, don't we Dean?"

Mr Eaton: "That's because you're my bitch."

41. When Mr Eaton said this to Mr Kordas he felt distraught in the workplace.

42. From about that time onwards, Mr Kordas began having nightmares when he slept, usually about past relationships with people, people that he knew. In the nightmares, he would do something wrong by them and feel a sense of guilt.

43. From the approximate time that he started having these nightmares, Mr Kordas was not looking forward to going to Aztec each day. However, he really wanted to make a go of hairdressing as a career, because he loved hairdressing.

44. On or about Australia Day, 26 January 2015, Mr Kordas’ grandmother [Nan] with whom Mr Kordas had a very close relationship, went into a coma and was admitted to hospital. He was upset, but the doctors had informed him she was going to make a recovery.

Evidence of Victimisation

45. In or about early February 2015, Mr Rony approached Mr Kordas in the workplace and pulled him aside, near the front counter, and said that he needed to talk to him. Mr Rony then said words to the following effect:

"You're not smiling anymore. You've lost your passion. Ever since you found out that your Nan was in a coma, you've been different."

46. When Mr Rony said this comment about his Nan, Mr Kordas felt really angry.

47. They then conversed in words to the following effect:

Mr Kordas:   "I'm being underpaid. I've been harassed by Michelle, Mr Eaton, and Jess. I feel like people are trying to sabotage me."

48. Mr Rony: "I will sort everything out, and I will pay you."

49. Later that same day, Mr Rony approached Mr Kordas and said words to the effect:

"I'm sorry about what happened before. Hairdressers are like racehorses. They're all equal, but they need a pat on the bum to go faster."

50. At or about this time, early February 2015, and from then onwards, Mr Kordas felt very depressed and was experiencing anxiety at work.

51. In or about the first week in February 2015, Mr Kordas felt extremely anxious at work and informed Mr Rony that he was not feeling well due to anxiety. Mr Rony told him to go for a walk outside the salon. Mr Kordas went for a fifteen-minute walk. He then returned to the salon and told Mr Rony that he was still not feeling well and asked to go home. Mr Rony agreed that he could. Mr Kordas asked Mr Rony if he was angry with him, and Mr Rony told him he was fine with it.

52. Mr Kordas had met Aveda's Senior Manager, Lenina, at a sales meeting at Aztec in early February 2015. Aveda was a salon products provider.

53. On 11 February 2015, due to the helplessness that he was feeling regarding the harassment he was experiencing at work, Mr Kordas sent email correspondence to Aveda's website to inform Aveda representatives of what was going on at his workplace. In the email correspondence, he informed of being harassed in the workplace at Aztec. He requested assistance to help with his situation.

54. On 11 February 2015, Mr Kordas commenced work at Aztec at about 9am. He was feeling very depressed on that day and worked as well as he could under the circumstances.

55. In or about the afternoon of that day, Mr Kordas was standing in the kitchen area of Aztec when Mr Eaton walked behind him and grabbed him from behind, around his waist with both hands. Mr Eaton did this as Mr Rony looked on, however Mr Rony did not saying anything about it. The space in the kitchen is confined and there was not a lot of room for Mr Eaton to walk past Mr Kordas, however Mr Kordas thought that Mr Eaton could have easily asked Mr Kordas to move aside, rather than grab him around the waist.

56. Approximately one hour after Mr Eaton had done this, Mr Kordas was standing in the same part of the kitchen area, and Mr Rony was instructing him on how to use a blow-dryer, using a doll as a model. Mr Kordas saw Mr Eaton approaching from the salon towards the kitchen and as he entered the kitchen Mr Kordas stepped slightly to the side so that Mr Eaton could move past him. Mr Eaton grabbed him on the waist from behind, in the same manner that he had done only one hour previously. Mr Kordas felt humiliated and devastated when he did this. Mr Kordas had already made a complaint to Mr Rony about this, but Mr Rony said nothing. This made Mr Kordas feel that the incidents of harassment would be ongoing. He felt helpless.

57. About an hour later, Mr Eaton asked Mr Kordas to put a cape on his female client. Mr Kordas tied the client's hair up with a clip, and mistakenly left the clip in the client's hair. As he walked away from the client, he heard the hair clip being thrown to the ground. Mr Kordas turned to Mr Eaton and said words to the following effect:

"You don't have to throw it on the ground."

58. Mr Eaton started laughing when Mr Kordas said this to him.

59. Mr Kordas felt extremely depressed, and tried to continue cleaning duties. He began to feel faint and light-headed. Everything he saw started to appear red and he felt weak at the knees, as if he were about to fall over.

60. Mr Kordas walked out to the back of the kitchen area, feeling very weak, and sat down on a chair. Mr Rony came and saw him and said that he should go for a walk. Mr Kordas went for a walk again, rang his mother and told her that he could not take what was happening in the workplace anymore. He felt like breaking down and crying. After about 15-30 minutes he walked back to Aztec and sat out at the rear of the kitchen area.

61. As he sat in the kitchen, he began crying openly, and experiencing attacks of great anxiety in his chest and head.

58. Mr Rony observed Mr Kordas crying and approached him in the kitchen where he was seated. Mr Kordas said to Mr Rony words to the following effect:

"This sexual harassment has to stop. You've seen it all, and the bullying. I want change."

63. Mr Rony advised him to continue working for the rest of the day and then go and see a doctor.

64. Mr Kordas tried to continue his normal duties. He did not speak with Mr Eaton until almost the end of his shift, just before 5pm, when Mr Eaton tried to converse with him. Mr Kordas said that he was sorry and had to leave.

65. He was very upset when he got home and talked to his mother about how he was feeling. He told his Mum that he wanted to fix his work situation and the way that he was feeling.

66. He was very upset that night and had nightmares throughout the evening.

67. The following morning Mr Kordas consulted with a doctor at The Entrance Medical Centre. The doctor informed him that his illness was situational, and that he was suffering from anxiety and depression. The doctor recommended that he consult with a psychiatrist. Mr Kordas informed the doctor that he was working six days a week at Aztec and did not have the time.

68. The doctor issued him with a doctor's certificate for two days. Mr Kordas text messaged Mr Rony on the following day to inform him that he would take two days off work. Mr Rony made text message reply, acknowledging his text message.

69. On Saturday 14 February 2015, Mr Kordas still felt very depressed and anxious, but he went to work. On that same day, he was experiencing gingivitis, and had blood coming from his gums due to his depression. He had not experienced this condition prior to that time. When he arrived at work that morning, Mr Eaton and Sophie were working at Aztec, but Mr Rony came in and out on a couple of occasions for a short time.

70. Mr Kordas completed his eight-hour shift that day, but struggled through the day, spending approximately an hour at lunchtime talking to his counsellor, about how he was feeling.

71. Mr Kordas’ next scheduled shift was on Tuesday 17 February 2015. He went to work at about 11am. He walked into Aztec and said hello to the staff, and then walked to the rear sitting room to put his backpack in its usual place. Mr Rony then approached him in the rear sitting room, where he was alone. They had a conversation in words to the following effect:

Mr Kordas:   "Is there anyone here to train me today?"

Mr Rony: "No, Arthur. There is nobody here to train you today. You're not supposed to start training until you start your training at Contour College."

Mr Kordas:   "That's fine. I'll go home. I won't be able to make it in tomorrow because of my Nan's funeral."

Mr Rony: "I've spoken with the team, and I'm sorry but I'm going to have to let you go."

Mr Kordas    "I will be taking action against harassment and bullying. You've seen it all.”

Mr Rony: "No, I haven't."

Me:   "Ha, ha. Don't mess with me."

72. Mr Kordas then left the salon. He rang Aveda and asked who he could speak to regarding just being dismissed by Mr Rony.

73. Almost immediately, Aveda's Lenina, telephoned him back and advised him to telephone Fairwork Australia and report everything that had happened at Aztec, including his dismissal. Lenina also informed him of a job opening at Terrigal for a hairdresser.

74. The following day, 18 February 2015, Mr Kordas attended his Nan's funeral, and was feeling very depressed and emotional due to his Nan's death. On 19 February 2015, he telephoned Fairwork Australia and reported everything that had happened.

75. Also on 19 February 2015, he went to the hair salon, Captiva, where Lenina had informed of a job opening, and provided his resume to the staff.

76. Mr Kordas experienced depression and anxiety until early January/February 2016. He had been sleeping late into the mornings after being dismissed from Aztec and did not have motivation to do anything throughout the day.

77. He had been consulting a GP about once a month following his dismissal, and his counsellor, approximately once a month.

78. At the hearing, Mr Kordas told the Tribunal that he had specifically complained to Mr Rony about Mr Eaton calling him his bitch; about Mr Eaton putting his hands around his waist and slapping him on the bum.

79. On questioning from the Tribunal, Mr Kordas said that Mr Eaton’s touching of him when he placed Mr Kordas’ hand on Mr Eaton’s wrist when he was blow drying a client’s hair, felt sexual and that he was trying to humiliate him. He was certain Mr Rony would have seen what occurred as they all worked in one big room. Mr Kordas recalled an occasion when he said to Mr Rony “What’s this about being called the salon bitch?” Mr Rony said to him I used to work in a restaurant. All the boys used to grab me by my boobs. Mr Kordas thought that Mr Rony was justifying the sexual touching when Mr Rony said this.

80. Mr Kordas said he felt intimidated by Mr Eaton because he was the highest earner in the salon and his designated trainer. He thought that Mr Eaton had thrown things on the ground to humiliate him and perhaps to see him bend over. He thought that it was a sexual thing.

81. Mr Kordas said that there was no training in the workplace about sexual harassment. There were no signs or policies displayed.

82. He said the experience had been very difficult for him. Men in hairdressing are in a minority. What had occurred had attacked his sense of masculinity. He would not have felt comfortable if it had been a female saying and doing the same things to him.

83. Mr Kordas’ experience at Aztec had turned him off working in hairdressing salons. Since then he has been working cutting men’s hair. He now has his own business - he sublets a room.

84. He had been paid workers compensation after his workers compensation claim. Mr Kordas was also back paid underpaid wages.

Report of Dr Christopher Bench

85. Dr Bench is a psychiatrist. Dr Bench provided a report dated 7 June 2015, prepared for a work cover claim and addressed to WorkCover. Dr Bench provided a report of the treatment at the Aztec salon as told to him by Mr Kordas. This was consistent with the history that Mr Kordas gave to the Tribunal. The report stated that Mr Kordas had been bullied and harassed at work. In his conclusions, Dr Bench stated that there appeared to be both subjective and objective evidence that the claimant had a significant exacerbation of his depression and anxiety as a consequence of the alleged bullying and harassment that he was subjected to in the workplace. He had experienced difficulties with tearfulness, panic attacks and increased depression. Dr Bench noted that Mr Kordas had an aggravation of his major depressive disorder provoked by the alleged bullying and harassment. On the balance of probabilities, it was Dr Bench’s opinion that Mr Kordas’ work was the main contributing factor to an aggravation of his pre-existing major depressive disorder. Dr Bench commented that the collateral materials given to him were highly in accord with his clinical evaluation. This included that there had been some use of untoward language in the salon, there had been acknowledgement that the claimant had been touched and the claimant had made contemporaneous reports to his employer that he was concerned with sexual harassment and verbal abuse in the workplace. Dr Bench referred to a report from general practitioner, Dr Harris, dated 20 February 2015 which Mr Kordas obtained several days after his dismissal from Aztec. The report states that Mr Kordas had anxiety and depression, relating to a work injury on 11 February 2015.

86. Dr Bench’s opinion was that as at 7 June 2015, Mr Kordas was currently fit to participate in 20 to 24 hours per week of pre-injury duties with an alternate employer. Dr Bench noted that Mr Kordas was actively looking for work at that time.

The Applicant’s submissions

87. The Applicant made the following submissions. The treatment in the salon by Mr Rony and Mr Eaton had been unwanted and unwelcome. The treatment was of a sexual nature including unnecessary touching. This included

• Mr Rony stroking Mr Kordas’ palm when he gave him money to make a purchase;

• Mr Eaton requiring Mr Kordas to hold Mr Eaton’s hand unnecessarily when he was showing him how to blow dry hair;

• Mr Eaton putting his hands around Mr Kordas’ waist;

• Mr Eaton unnecessarily brushing against Mr Kordas;

• Mr Eaton slapping Mr Kordas’ bottom with a ruler.

88. There had also been comments of a sexual nature:

• Mr Eaton referring to Mr Kordas as his bitch; and

• Mr Eaton saying that they were like a gay married couple.

89. Mr Kordas had given evidence about his humiliation and distress which had been an exacerbation of his depression. He had become socially withdrawn. The effect of the behaviour had been to put Mr Kordas out of work for approximately 16 months.

90. After Mr Kordas had complained to his employer Mr Rony about the treatment, specifically naming it as sexual harassment, he was then victimised by being dismissed. This clearly fell within the prohibition against victimisation in section 50 of the Anti-Discrimination Act 1976.

91. The employer had had the opportunity to come before the Tribunal and to put the employer’s view to contradict the evidence before the Tribunal.

92. Mr Kordas’ representative submitted that Mr Kordas had been open and responsive in his evidence before the Tribunal. He had not embellished his allegations. He had been willing to make concessions. The Tribunal should find wherever Mr Kordas’ evidence was contradicted by claims from the Respondent, that Mr Kordas’ evidence should be preferred. Mr Kordas submitted that if weight were to be given to the statements of the Respondent set out in the President’s report, it should not be significant weight as the Respondent had not submitted to giving evidence on oath nor to cross examination. Where ever the Respondent’s statements were inconsistent with Mr Kordas’ statements, Mr Kordas’ statements should be accepted.

93. As a result of his experience with Aztec, Mr Kordas had now chosen to pursue a career as a barber and to work alone, rather than in hairdressing because of his fears about the environment in a hairdressing salon.

94. Mr Kordas did not wish to pursue economic loss. However, Mr Kordas did claim general damages. In assessing these damages, the Tribunal needed to accept Mr Kordas as he was. While the case was not the most serious case of sexual harassment and victimisation, it was clear that the impact on Mr Kordas had been significant. He was humiliated and distressed and out of employment. Mr Kordas had done all the right things. He sought treatment and assistance from his doctors and counsellor. Mr Kordas had been a young man at the beginning of his career. His experience of sexual harassment and victimisation had impacted on the choices he had made. He had decided to become a barber rather than a hairdresser. It had impacted upon his sense of right and wrong and had made him anxious. His employer had been aware that he was taking medication for a condition. The Respondent must then accept the effect that the treatment had on Mr Kordas.

95. The Applicant referred to the matter of Richardson v Oracle Corporation Australia Pty Ltd [2013] FCA 102. In that matter, Ms Richardson was awarded damages against her former employer for sexual harassment by a work colleague. The Federal Court found the employer vicariously liable as it had failed to take reasonable steps to prevent the colleague from sexually harassing Ms Richardson. Similarly, Mr Kordas had the right to be comfortable in the workplace. The employer is obliged to take a person as they found him. Mr Kordas had required a lot of medical assistance both during his employment and after his employment with Aztec.

The Respondent’s case

96. The Respondent did not appear at the hearing. However, the Tribunal had before it the President’s report. This report contained a response to the complaint provided by the Respondent through its solicitors Vanguard lawyers on 6 August 2015. The Tribunal summarises that response as follows.

97. The covering letter from Vanguard Lawyers states:

“Our client advises that these incidents alleged by Mr Kordas were not raised at any time during his employ. Mr Rony manages Aztec Hair and Beauty in a professional manner and has had high regard for zero tolerance to any such bullying, harassment or discrimination within his workforce.”

98. The Tribunal had an unsigned statement of Mr Syeed Kabir Rony dated 6 August 2015. The Tribunal summarises that statement as follows.

99. Mr Rony is director of Ruba and Jo Pty Ltd trading as Aztec Hair and Beauty (Tuggerah).

100. Mr Rony stated that at his interview, Mr Kordas told Mr Rony that he was on medication for depression. Mr Rony gave Mr Kordas a job, as he appreciated Mr Kordas’ openness in advising his medical issues and his criminal history. When Mr Kordas commenced work, Mr Rony gave an induction, including occupational health and safety and zero tolerance for bullying and sexual harassment and backstabbing in the salon. He had told Mr Kordas that he should report any such behaviour to him. Mr Rony was conscious of Mr Kordas’ condition and wanted to make sure the workplace was suitable to him. At no time had Mr Kordas made Mr Rony aware of any instance prior to 7 February 2015. Mr Rony specifically denied stroking Mr Kordas’ hand. He confirmed that Mr Kordas’ duties as described by Mr Kordas were within his job description. Mr Kordas had wished to be trained by Mr Eaton and Mr Rony allowed this. It was expected that a trainer would demonstrate a technique on a client’s hair.

101. Mr Rony had not heard a comment that Dean and Arthur were similar to a gay couple. He denied that Mr Kordas had approached him to discuss any of the issues. He said that there had been monthly team meetings in which they had discussed OH & S, customer care and the culture within the salon. He had not seen Mr Eaton slap Mr Kordas on the bum. He had seen Mr Kordas and Mr Eaton flicking towels at each other. He had told them to stop it, as it was unprofessional. Mr Rony stated that it is not unusual for hairdressers to drop clips, combs and hair trimmers in the fast pace at the salon. Mr Kordas had not raised with him that Mr Eaton had called him a bitch. This would not be tolerated in the salon.

102. On 3 February 2015, he had a discussion with Mr Kordas about his attitude and his performance. Mr Kordas’ girlfriend’s mother had also turned up at the salon crying. Mr Rony stated at the meeting that he had reminded Mr Kordas that there was a chemist downstairs for him to get a prescription repeat. It had been reported to him that Mr Kordas had stopped this medication in the preceding days. He had not seen Mr Eaton grabbing Mr Kordas’ waist, although he noted that the kitchen in the salon is quite confined.

103. On 7 February 2015, Mr Kordas had told him that everybody was talking about him and whispering about him in the salon. He had then told Mr Rony that Mr Eaton had called him his bitch. Mr Rony said he told Mr Kordas people were not talking about him in the salon. He also said that Mr Kordas should have told him straight away that Mr Eaton had called him a bitch. He said he would talk to Mr Eaton. Mr Kordas had not told him any other allegations about behaviour in the salon. Mr Rony discussed the issue with Mr Eaton and Mr Eaton told him that Arthur had called himself Mr Eaton’s bitch.

104. On 17 February 2015 Mr Kordas had come into the salon demanding training. Mr Rony had told Mr Kordas that because of his lack of performance within his role, they were no longer able to offer him a position. Mr Kordas was still in his probationary period. Mr Rony reiterated that he had only been told of sexual harassment in the salon on 7 February 2015 after he had given Mr Kordas a verbal warning about his performance on 3 February 2015.

The Tribunal’s consideration

The Relevant legislation

105. The Tribunal sets out the relevant sections of the ADA with the Tribunal’s bolding, below.

22A Meaning of “sexual harassment”

For the purposes of this Part, a person sexually harasses another person if:

(a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the other person, or

(b) the person engages in other unwelcome conduct of a sexual nature in relation to the other person,

in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated.

22B Harassment of employees, commission agents, contract workers, partners etc.

(1) It is unlawful for an employer to sexually harass:

(a) an employee, or

(b) a person who is seeking employment with the employer.

(2) It is unlawful for an employee to sexually harass a fellow employee or a person who is seeking employment with the same employer.

(3) It is unlawful for a person to sexually harass:

(a) a commission agent or contract worker of the person, or

(b) a person who is seeking to become a commission agent or contract worker of the person.

(4) It is unlawful for a commission agent or contract worker to sexually harass a fellow commission agent or fellow contract worker.

(5) It is unlawful for a partner in a partnership to sexually harass another partner, or a person who is seeking to become a partner, in the same partnership.

(6) It is unlawful for a workplace participant to sexually harass another workplace participant at a place that is a workplace of both those persons……

50 Victimisation

(1) It is unlawful for a person (“the discriminator”) to subject another person (the person victimised”) to any detriment in any circumstances on the ground that the person victimised has:

(a) brought proceedings against the discriminator or any other person under this Act,

(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act,

(c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or

(d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person,

or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.

(2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith.

53 Liability of principals and employers

(1) An act done by a person as the agent or employee of the person’s principal or employer which if done by the principal or employer would be a contravention of this Act is taken to have been done by the principal or employer also unless the principal or employer did not, either before or after the doing of the act, authorise the agent or employee, either expressly or by implication, to do the act.

(2) If both the principal or employer and the agent or employee who did the act are subject to any liability arising under this Act in respect of the doing of the act, they are jointly and severally subject to that liability.

(3) Despite subsection (1), a principal or an employer is not liable under that subsection if the principal or employer took all reasonable steps to prevent the agent or employee from contravening the Act.

(4) For the purposes of subsection (1), the principal or employer of a volunteer or unpaid trainee who contravenes Part 2A is the person or body on whose behalf the volunteer or unpaid trainee provides services.

4A Act done because of unlawful discrimination and for other reasons

If:

(a) an act is done for 2 or more reasons, and

(b) one of the reasons consists of unlawful discrimination under this Act against a person (whether or not it is the dominant or a substantial reason for doing the act),

then, for the purposes of this Act, the act is taken to be done for that reason.

Findings of fact

106. Section 140 of the Evidence Act 1995 sets out the standard of proof by which the Tribunal must be satisfied in making its findings.

140 Civil proceedings: standard of proof

(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:

(a) the nature of the cause of action or defence, and

(b) the nature of the subject-matter of the proceeding, and

(c) the gravity of the matters alleged.

107. The Tribunal notes that the Respondent did not appear at the hearing. Mr Kordas’ sworn evidence was not contradicted at hearing. In addition, the Tribunal found that Mr Kordas was a credible witness. The evidence he gave at hearing was consistent with his previous statements. The Tribunal also noted that there is a history of Mr Kordas having made contemporaneous complaint to his treating practitioners in terms consistent with his evidence before the Tribunal. This is apparent from the report of Dr Bench dated 7 June 2015 and the medical certificate of Dr Harris dated 20 February 2015 - 3 days after the termination of his employment.

108. The Tribunal did consider the unsigned statement of Mr Syeed Rony of 6 August 2015. In the circumstances, wherever Mr Kordas’ and Mr Rony’s statements are inconsistent with each other, the Tribunal has preferred the evidence of Mr Kordas.

109. The Tribunal makes following findings of fact.

110. In Mr Kordas’ first week of employment, on a few occasions, Mr Rony lightly stroked his palm when he would give Mr Kordas money to buy items for the salon.

111. In late December 2014/ early January 2015, Mr Eaton stood behind and close to Mr Kordas. He made Mr Kordas put Mr Kordas’ hand on top of Mr Eaton’s hand to blow-dry a client’s hair.

112. The Tribunal finds as alleged by Mr Kordas that he was subject to aggressive treatment in the work place through disparaging comments made by more senior staff.

113. Mr Kordas was advised by a more senior staff member Sophie: “I just agree with them, and don’t answer back. Just take it.”

114. In early to mid-January 2015, Mr Eaton was instructing Mr Kordas how to blow-dry a client’s hair. Mr Eaton said in a voice loud enough for the client and employees of Aztec to hear, words to the effect of “We are like a gay couple. We argue like a gay couple. We’re close” Mr Rony was located approximately one metre away - within hearing distance.

115. In early January 2015, Mr Eaton walked behind Mr Kordas when Mr Kordas was standing at the counter and slapped him on his bottom with a ruler. Mr Eaton then said “You should slap me on the bum. I like being slapped on the bum.” The Tribunal accepts Mr Kordas’ evidence that Mr Rony was close by.

116. In mid-January 2015, when Mr Kordas had incorrectly left the clip in a female client’s hair, Mr Eaton took the clip and threw it on the floor. Mr Eaton laughed at Mr Kordas when he bent over to pick it up

117. In mid-January 2015, Mr Kordas said to Mr Eaton “We get along well here don’t we Dean? In response, Mr Eaton said to Mr Kordas “That’s because you’re my bitch.”

118. In early February 2015, Mr Kordas complained to Mr Rony that he was being underpaid and he was being harassed by Michelle, Mr Eaton and Jess. Mr Rony later approached Mr Kordas the same day and said “I’m sorry about what happened before. Hairdressers are like racehorses, they’re all equal, but they need a pat on the bum to go faster.”

119. On an occasion, Mr Kordas asked Mr Rony why he was being referred to as the salon bitch. Mr Rony replied to him: “I used to work in a restaurant. All the boys used to grab me by my boobs.”

120. On 11 February 2015, Mr Kordas emailed representatives of salon products supplier Aveda and advised that he was being harassed in the workplace at Aztec. He requested assistance to deal with the situation

121. In the afternoon of 11 February 2015, Mr Eaton put his hands around Mr Kordas’ waist from behind while Mr Kordas was standing in the kitchen as Mr Rony looked on.

122. On the same afternoon, Mr Kordas was with Mr Rony who was instructing Mr Kordas how to use a blow dryer. Mr Eaton again grabbed him around the waist from behind. Mr Rony saw this but said nothing about the issue. Later on that afternoon, Mr Eaton again threw on the floor a clip that Mr Kordas had left in a client’s hair and laughed.

123. Later in the afternoon of 11 February 2015 Mr Kordas was sitting in the kitchen crying. He was approached by Mr Rony. At that time, Mr Kordas said to Mr Rony:

“This sexual harassment has to stop. You’ve seen it all and the bullying. I want change.”

124. On Tuesday 17 February 2015 when Mr Kordas arrived at work, Mr Rony said to him:

“I’ve spoken with the team, and I’m sorry but I’m going to have to let you go.”

125. Mr Kordas said to Mr Rony:

“I will be taking action against harassment and bullying. You’ve seen it all. “

Mr Rony replied: “No I haven’t.”

126. Accordingly, the Tribunal accepts Mr Kordas’ allegations that he was subject to the behaviour complained of while employed at Aztec salon.

Dismissal

127. The Tribunal is satisfied that Mr Kordas’ employment was terminated by Mr Rony on 17 February 2015 in the circumstances described by Mr Kordas. Mr Rony’s unsworn statement sets out that Mr Kordas was told that his performance was the reason for his dismissal. Mr Kordas denies he was told this. The Tribunal does not find that Mr Rony said to Mr Kordas, as set out in Mr Rony’s unsworn statement, that they were no longer able to offer him a position and he was not performing in his role.

FINDINGS: SEXUAL HARASSMENT

128. The test set out in section 22A of the ADA for whether conduct constitutes sexual harassment requires that:

1. the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the other person, or

2. the person engages in other unwelcome conduct of a sexual nature in relation to the other person,

3. in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated.

129. To fall within paragraph (b) it must be established that the conduct was, first, unwelcome conduct of a sexual nature and, second, that a reasonable person, having regard to all the circumstances, would have anticipated that Mr Kordas would have been offended, humiliated or intimidated.

130. Whether conduct is of a sexual nature may depend on the context. The context in this matter was of a workplace in which Mr Kordas was the most junior person in the salon. He had no prior relationship with his boss, Mr Rony or his trainer, Mr Eaton. The words “gay couple, we’re close” are in the Tribunal’s view of a sexual nature.

131. The Tribunal has considered the use of the language “my bitch”. It is commonly understood that a bitch is specifically a female, as opposed to a male dog. The term in canine circles specifically refers to the female dog’s breeding capacity. The Tribunal is satisfied that the term “my bitch” as used by Mr Eaton in the context, implied that Mr Kordas was Mr Eaton’s female sexual partner.

132. Mr Eaton’s requests to be slapped on the bum suggest a request for Mr Kordas to engage in sexual behaviour. The Tribunal is satisfied that Mr Eaton’s references to Mr Kordas and himself being like a gay couple; to Mr Kordas as being his bitch and to his requests to be slapped on the bum were conduct of a sexual nature.

133. Similarly, in this context of referring to Mr Kordas and himself as a gay couple and to Mr Kordas as his bitch, the Tribunal finds that Mr Eaton’s conduct of slapping Mr Kordas on the bottom with a ruler and grabbing Mr Kordas around the waist from behind, was conduct of a sexual nature.

134. It is clear from Mr Kordas’ evidence that the conduct was unwelcome. In Brown v Richmond Golf Club & Anor [2006] NSWADT 104, the Tribunal determined that it is not necessary for a complainant to establish that the perpetrator was aware that their conduct was ‘unwelcome’. It is enough that the victim considered it to be so. In contrast to the second limb of the test this is a subjective rather than objective test.

135. The second limb of the test is not whether the complainant feels the unwelcome conduct is sexual harassment or whether the Respondent intends it to be sexual harassment. The test is an objective one that requires the Tribunal to ask whether a reasonable person would consider that the conduct in question would be likely to offend, humiliate or intimidate: Caton v Richmond Club Limited [2003] NSWADT 202.

136. The circumstances of the behaviour were that Mr Kordas was junior to Mr Eaton. Mr Kordas understood Mr Eaton to be the senior hairdresser in the salon; Mr Kordas was being trained by Mr Eaton and Mr Kordas was an apprentice under probation. Mr Kordas was in a position where he held little, if any, power. Tribunal finds that a reasonable person, having regard to these circumstances, would have anticipated that Mr Kordas would have been humiliated or intimidated by the words and actions of Mr Eaton.

137. The Tribunal finds that Mr Rony’s action in stroking Mr Kordas’ palm when he gave him money to make purchases for the salon, was conduct of a sexual nature. Mr Kordas described the stroking as feeling flirtatious. Mr Kordas told the Tribunal the conduct was unwelcome. Mr Rony as the representative of the employer was in a clear position of power to Mr Kordas. The Tribunal accepts that in these circumstances, Mr Kordas felt intimidated by this action from his “boss”.

Victimisation claim

138. Section 50 of the ADA relevantly defines victimization as follows:

It is unlawful for a person (“the discriminator”) to subject another person (the person victimised”) to any detriment in any circumstances on the ground that the person victimised has:

….. (c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or

(d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person, or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.

(2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith.

139. The Tribunal Appeal Panel held in Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 at [37] that the question to be asked is whether the fact that the Applicant had done " one of the things listed in s 50(1)(a) to (d) was at least one of the 'real', 'genuine' or 'true' reasons for being subjected to a detriment. As for complaints of discrimination, for that to be the case, that reason must have been a reason which, either alone or in combination with other reasons, was the true basis for the treatment."

140. Accordingly, Section 50 of the ADA provides that Mr Kordas’ making a complaint or complaints about sexual harassment need only be one of the reasons for the termination of his employment, for the termination to be found to be victimisation. The Tribunal accepts Mr Kordas’ allegations that his employment was terminated as a result of him complaining to Mr Rony on more than one occasion about the sexually harassing behaviour that he was experiencing in the salon. The reasons for this finding are that this is consistent with:

• the recency of the complaints Mr Kordas had made about sexual harassment in the workplace to Mr Rony;

• the lack of training afforded Mr Kordas concerning policies and practices about sexual harassment in the workplace;

• Mr Rony’s own behaviour in stroking Mr Kordas’ palm when giving him money;

• Mr Rony’s statement when Mr Kordas had complained to him about sexually harassing treatment, that he himself had been subject to sexual touching when he was working in a restaurant – implying that Mr Kordas should just put up with it; and

• a staff member’s counselling of Mr Kordas to “just take it” in relation to bullying behaviour in the workplace.

141. The Tribunal is satisfied that the true, real or genuine reason for, being dismissed on 17 February 2015 was the complaints Mr Kordas had made days earlier on 7 and 11 February 2015 about being sexually harassed.

Vicarious liability

142. Mr Kordas has named Ruba and Jo Pty Ltd trading as Aztec Hair and Beauty as the Respondent to his complaints of sexual harassment and victimisation. The Tribunal has found these matters proved. The provisions of section 53 of the Anti-Discrimination Act 1977 render a principal or employer liable for the actions of its agent or employee. Section 53 of the ADA states:

(1) An act done by a person as the agent or employee of the person's principal or employer which if done by the principal or employer would be a contravention of this Act is taken to have been done by the principal or employer also unless the principal or employer did not, either before or after the doing of the act, authorise the agent or employee, either expressly or by implication, to do the act.

143. Section 53(3) provides a defence to vicarious liability. It states:

Despite subsection (1), a principal or an employer is not liable under that subsection if the principal or employer took all reasonable steps to prevent the agent or employee from contravening the Act.

144. The letter from the Respondent’s lawyers, Vanguard lawyers dated 6 August 2015 describes Mr Syeed Rony as director of Ruba and Jo Pty Ltd trading as Aztec Hair and Beauty (Tuggerah). The Tribunal finds that Mr Kordas was employed by Ruba and Jo Pty Ltd trading as Aztec Hair and Beauty from 27 November 2014 to 17 February 2015. The Tribunal finds that Mr Eaton was also an employee of Aztec. The Tribunal finds that Mr Rony was either an agent and/or an employee of Ruba and Jo Pty Ltd trading as Aztec Hair and Beauty. Mr Rony was in a position of power in relation to Mr Kordas and Mr Eaton. Mr Rony offered Mr Kordas his position and was responsible for paying Mr Kordas. He was also the representative of the company who told Mr Kordas that his employment had been terminated.

145. In his statement dated 6 August 2015, Mr Rony emphasises that he had made Mr Kordas aware of behavioural requirements in the salon. The Tribunal is satisfied that Mr Rony had responsibility for setting the terms and conditions of employment. The Tribunal is satisfied that Mr Rony held himself out as the agent for Aztec with responsibility for setting the terms and conditions of the workplace. Mr Rony said that he had spoken to Mr Eaton on 11 February 2015 and told him that his behaviour towards Mr Kordas in referring to him as his bitch was not acceptable. Mr Rony’s statement also states that Mr Kordas should have raised his concerns about sexual harassment with him.

146. Aztec will be vicariously liable for the actions of Mr Rony and Mr Eaton “unless the employer or principal did not authorise either Mr Rony’s or Mr Eaton’s actions either by implication or expressly before or after the action was taken.”

147. Studdert J in Shellharbour Golf Club v Wheeler [1999] NSWSC 224 at [33] set out the following statement of principle about the operation of s 53:

[A]s I construe s 53(1) once it was established that the misconduct occurred in the workplace environment and the offender was ostensibly at the time acting in the discharge of responsibilities as agent for his principal, what he did was deemed to be done by his principal, unless the conduct was unauthorised by the principal either expressly or by implication.

148. It falls to Aztec to prove that it did not authorise the offending conduct.

149. The case law shows that authorisation can mean sanction, approve, countenance or permit an action. There is no need for formal expression of permission or active approval of the conduct. Inactivity or indifference exhibited by acts of commission or omission are sufficient. The principal or employer must know or have reason to suspect that the actions may or will be done. See Brown v Richmond Golf Club & Anor [2006] NSWADT 104 and Shellharbour Golf Club v Wheeler [1999] NSWSC 224.

150. The Tribunal accepts Mr Kordas' statement that in early January 2015 Mr Rony observed Mr Eaton to slap Mr Kordas on the bottom with a ruler. At the same time, Mr Eaton said to Mr Kordas. "You should slap me on the bum. I like being slapped on the bum." The Tribunal accepts Mr Kordas' contention that Mr Rony took no action to clarify that Mr Eaton's actions and words were unacceptable. In these circumstances, the Tribunal finds that Mr Rony by implication, authorised Mr Eaton to do the act by failing to take action against Mr Eaton.

151. The Tribunal finds that Mr Rony's comment to Mr Kordas that when he worked in a restaurant, the boys used to pull his boobs, implied that Mr Kordas was required to put up with the sexualised treatment as a junior in the workplace.

152. There is also a defence for an employer, if the employer or principal took all reasonable steps to prevent the agent or employee contravening the provisions of the Act. The Tribunal is satisfied that Mr Rony did not take preventative action to ensure that the workplace was free of harassment. Nor did Mr Rony take steps once advised that Mr Eaton had sexually harassed Mr Kordas. Mr Rony states that he spoke to Mr Eaton on 11 February 2015 about his behaviour. Even if the Tribunal accepts this was so, the Tribunal finds that this was not a reasonable step to prevent the contraventions.

153. In the circumstances, the Tribunal finds Aztec vicariously liable for the actions of Mr Rony in sexually harassing and terminating Mr Kordas’ employment as an act of victimisation. The Tribunal also finds Aztec vicariously liable for the actions of Mr Eaton in sexually harassing Mr Kordas.

Remedies

Damages

154. The Applicant claimed damages in respect of the complaints. The particulars of injury and loss claimed were depression, feeling unsafe working in hairdressing where men are in the minority and consequent difficulty finding alternate employment. The Applicant did not claim for loss of income.

155. Section 108 of the ADA relevantly provides as follows

(1) In proceedings relating to a complaint, the Tribunal may:

(a) dismiss the complaint in whole or in part, or

(b) find the complaint substantiated in whole or in part.

(2) If the Tribunal finds the complaint substantiated in whole or in part, it may do any one or more of the following:

(a) except in respect of a matter referred to the Tribunal under section 95 (2), order the Respondent to pay the complainant damages not exceeding $100,000 by way of compensation for any loss or damage suffered by reason of the Respondent's conduct,..…….

(d) order the respondent to publish an apology or a retraction (or both) in respect of the matter the subject of the complaint and, as part of the order, give directions concerning the time, form, extent and manner of publication of the apology or retraction (or both),

156. An appeal panel in Commissioner of Police, NSW Police v Mooney (No.3) [2004] NSWADTAP 22 considered past judicial statements in relation to damages and concluded as follows:

27...The AD Act creates statutory rights and obligations. Section 113(1)(b)(i) of that Act (previous remedies section) vests the Tribunal with a statutory power to make compensatory orders following a finding that a complaint alleging a contravention of one of those statutory rights has been substantiated. Common law rules concerning the manner in which a court should determine whether damages claimed by a plaintiff in an action in tort are attributable to the conduct of the defendant may guide or assist the Tribunal when determining whether any loss or damage claimed by an Applicant in a discrimination case was suffered by reason of the Respondent's conduct, but they are not controlling.

157. The question for this Tribunal, having regard to the principles set out above is whether the sexual harassment by Mr Rony and by Mr Eaton and the victimization by Aztec, materially contributed to the loss or damage Mr Kordas has suffered.

158. The Tribunal does accept that Mr Kordas suffered injury to his feelings and exacerbation of his pre-existing psychological conditions, because of the sexual harassment and victimization.

159. This is clear in the Applicant’s statement, which refers to his distress at the time of the events over a 2 to 3-month period. Mr Kordas’ language in his statement of March 2015 charts a deterioration in his well-being. This commences with feeling uncomfortable, experiencing aggression and demeaning and disparaging behavior. He felt put down. He later became embarrassed and humiliated, then extremely embarrassed and humiliated and demeaned. Gradually, Mr Kordas then became anxious and angry about how he was being treated in the workplace. After he was referred to as Dean’s bitch, he felt distraught, experienced nightmares and a sense of guilt. He thought that people were trying to sabotage him. Mr Kordas then notes that he felt very depressed and was not feeling well due to anxiety. He felt helpless. He later felt faint; everything went red; he went weak at the knees and was falling over. He began crying openly in the workplace. He experienced attacks of great anxiety in his chest and head. He had gingivitis and blood coming from his gums due to depression.

160. After he had been dismissed, Mr Kordas continued to feel anxiety and depression. He had no motivation and was sleeping late. At the hearing, he described continuing to feel on guard about what was right and wrong. He had decided to limit his career to working as a barber rather than in hairdressing salons because of his experience at Aztec.

161. Dr John Harris is Mr Kordas’ general practitioner. His report of 8 April 2015 notes that Mr Kordas experienced anxiety with panic attacks and that he vomits of the morning. He noted that Mr Kordas had reported on 20 February 2015 being bullied and harassed at work. This had led to panic attacks and nightmares. He had been moody and teary. He had also been very anxious and depressed. Dr Harris considered that “These incidents could have led to the development of these current symptoms on 12 February 2015.” Mr Kordas had stated that his symptoms from the incident at work had incapacitated him psychologically. Dr Harris certified that Mr Kordas was fit to return to work fully on 7 June 2016.

162. Dr Bench’s report of 7 June 2015 notes that Mr Kordas reported to him that the experience had devastated him…. he was so embarrassed. He ended up in tears at work.

163. In June 2015, Mr Kordas described his recent mood to Dr Bench as “irritated… very irritated”. Dr Bench concluded that Mr Kordas had experienced a significant exacerbation of his depression and anxiety as a consequence of the bullying and harassment that he was subjected to in the workplace. He had experienced difficulties with tearfulness, panic attacks and increased depression. Dr Bench considered that Mr Kordas’ pre-existing Psychotic Disorder, Not Otherwise Specific, and Major Depressive Disorder had been aggravated by the bullying and harassment. At that time, Dr Bench expected that Mr Kordas would return to his baseline level of functioning within the course of the next 6 to 8 weeks. In June 2015, Dr Bench considered that Mr Kordas was fit to participate in 20 to 24 hours per week of pre-injury duties with an alternate employer. Dr Bench noted that Mr Kordas was actively looking for work.

164. As Wilcox J stated in Hall v Sheiban (1985) ALR 503 at 543:

“the task of determining the appropriate level of damages in a case of unlawful discrimination is not without difficulty:

Damages for such matters as injury to feelings, distress, humiliation and the effect on the complainant's relationship with other people are not susceptible to mathematical calculation...To ignore such items of damage simply because of the impossibility of demonstrating the correctness of any particular figure would be to visit an injustice upon a complainant by failing to grant relief in a proven item of damage.”

165. The Tribunal is mindful that awards should not be minimal, because this would tend to trivialise or diminish respect for the public policy to which the Anti-Discrimination Act gives effect (see Alexander v Home Office (1988) 2 All ER 119 at 122).

166. The Tribunal considered the following factors in considering “the appropriate level of “damages not exceeding $100,000 by way of compensation for any loss or damage suffered by reason of the respondent’s conduct,” (section 108)

• the sexual harassment complained of continued for a period of almost 3 months;

• the sexual harassment set a deteriorating workplace environment for Mr Kordas;

• Mr Kordas was a young man who was vulnerable as he had been unemployed and had pre-existing psychological conditions;

• the sexual harassment and termination of employment changed the trajectory of Mr Kordas’ career.

• The sexual harassment and victimisation caused Mr Kordas to limit his career scope from hairdressing generally, to working as a barber with fewer range of career opportunities.

167. The Tribunal considers that it is much to Mr Kordas’ credit that he has worked with his health practitioners to re-gain a capacity to work.

168. The Tribunal was referred by the Applicant’s representative to the matter of Richardson v Oracle Corporation Australia Pty Ltd and Tucker [2014] FCAFC 82 which dealt with a complaint of sexual harassment. Ms Richardson appealed from the trial judge’s award of $18,000 in general damages. The level of damages was raised significantly to $100,000. On appeal, Justice Kenny noted that historically the accepted range of damages in sexual discrimination cases was generally between $12,000 - $20,000. Justice Kenny stated that it would be dangerous to rely too heavily on the accepted range of damages awards, because the community has generally gained a deeper appreciation of the experience of hurt and humiliation that victims of sexual harassment experience in the value of loss of enjoyment of life occasioned by mental illness or distress caused by such conduct. Justice Kenny held that in making an award of damages, general standards prevailing in the community as well as damages awards for injury similar to that suffered by Ms Richardson would provide guidance on the appropriate level of compensation.

169. The Tribunal is satisfied that the injury to Mr Kordas had a significant impact on Mr Kordas’ continuing well-being, enjoyment of life and career trajectory and scope - as set out by Mr Kordas, Dr Bench and Dr Harris. The Tribunal awards Mr Kordas the following amounts in general damages.

• In respect of the sexual harassment by Mr Rony, the Tribunal awards Mr Kordas the sum of $5000;

• In respect of the sexual harassment by Mr Eaton, the Tribunal awards Mr Kordas, the sum of $10,000; and

• In respect of the victimization, the Tribunal awards Mr Kordas the sum of $15,000

170. An apology was not sought by the Applicant. The Tribunal declines to order an apology as the Respondent has denied the behavior complained of. In these circumstances the Tribunal sees little utility in ordering an apology.

Orders

1. The complaint of sexual harassment by Mr Rony in November 2014 is substantiated.

2. The complaint of sexual harassment by Mr Eaton from December 2014 to February 2015 is substantiated.

3. The complaint of victimisation against Ruba & Jo Pty Ltd is substantiated.

4. Ruba and Jo Pty Ltd is to pay Mr Kordas within 21 days the sum of $30,000.

**********

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 25 May 2017