Kraus v Menzie

Case [2012] FCA 3

FEDERAL COURT OF AUSTRALIA

Kraus v Menzie [2012] FCA 3

Citation: Kraus v Menzie [2012] FCA 3
Parties: JADE XAVIER KRAUS; MARK MENZIE and THE TRUCK FACTORY PTY LTD
File number: SAD 209 of 2010
Judge: MANSFIELD J
Date of judgment: 11 January 2012
Catchwords: HUMAN RIGHTS – discrimination − sexual harassment − inappropriate conduct, gifts and multimedia text messaging
Legislation: Sexual Discrimination Act 1985 (Cth)
Sex and Age Discrimination Amendment Act 2011 (Cth)
Australian Human Rights Commission Act 1986 (Cth)
Cases cited: Elliott v Nanda (2001) 111 FCR 240
Date of hearing: 23, 24 and 25 August 2011, 30 August 2011, 11 October 2011 and 11 November 2011
Date of last submissions: 10 November 2011
Place: Adelaide
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 140
Counsel for the Applicant: P Heywood Smith QC
Solicitor for the Applicant: Duncan Basheer Hannon
Counsel for the Respondents: S Cole
Solicitor for the Respondents: Rossi Legal

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

SAD 209 of 2010
BETWEEN:

JADE XAVIER KRAUS
Applicant
AND:

MARK MENZIE
First Respondent

THE TRUCK FACTORY PTY LTD
Second Respondent

JUDGE:

MANSFIELD J

DATE OF ORDER:

11 JANUARY 2012

WHERE MADE:

ADELAIDE

THE COURT DECLARES THAT:

1.The respondents sexually harassed the applicant, contrary to s 28B of the Sex Discrimination Act 1984 (Cth) by the following conduct:

1.1by the first respondent purchasing for the applicant, and insisting that she accept, certain Playboy underwear and pyjamas on or about 7 November 2009;

1.2by the first respondent cajoling the applicant to undress to her underwear and to swim with him in the Port Wakefield River in the course of a working trip on or about 19 November 2009;

1.3by the first respondent endeavouring to share a confined cabin bunk within the truck on a work journey from Mount Gambier to Adelaide on the night of 22-23 November 2009;

1.4by the first respondent sending to the applicant text messages and images which were very coarse and sexually explicit on:

22 November 2009;

26 November 2009;

26 November 2009; and

1 December 2009;

1.5by the first respondent giving to the applicant lingerie and other sexually suggestive Christmas gifts on about 18 December 2009.

AND THE COURT ORDERS THAT:

2.        The respondents jointly pay to the applicant damages of $12,000.

3.The parties be at liberty to file and serve within 14 days such submissions as to the costs of the application as they may be advised, and to file any responsive submissions within a further period of 14 days, to the intent that the Court will then determine any disputed issue as to the costs of the application on the written submissions.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

SAD 209 of 2010
BETWEEN:

JADE XAVIER KRAUS
Applicant
AND:

MARK MENZIE
First Respondent

THE TRUCK FACTORY PTY LTD
Second Respondent

JUDGE:

MANSFIELD J

DATE:

11 JANUARY 2012

PLACE:

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AGLC
Kraus v Menzie [2012] FCA 3
Case
[2012] FCA 3
Decision Date

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, Kraus v Menzie was heard and determined. The case involved a dispute between Ms Kraus, the applicant, and Mr Menzie, the respondent, regarding claims of sexual harassment and discrimination under the Sex Discrimination Act 1984 (Cth). Ms Kraus alleged that Mr Menzie, her employer, had sexually harassed her through various inappropriate actions, including the sending of sexually explicit images and giving her gifts. The legal issues in the case centred on whether the conduct of Mr Menzie constituted sexual harassment, whether it amounted to discrimination in employment, and if Ms Kraus suffered any detriment as a result of the alleged harassment. The court considered the evidence, including extensive text messages, photographs, and other contemporaneous documents, to assess the nature of the relationship between the parties and the impact of Mr Menzie's conduct on Ms Kraus.

The court found that Mr Menzie's conduct, including the giving of gifts and sending of explicit images, did constitute sexual harassment. However, it was also determined that this conduct did not result in any real detriment to Ms Kraus' employment. The court concluded that while the harassment occurred, it did not lead to any discrimination or adverse impact on Ms Kraus' employment terms or conditions. Therefore, the court found that the respondents contravened the Sex Discrimination Act by engaging in sexual harassment but did not find that the harassment amounted to discrimination in employment.

The final orders of the court included that the respondents were to jointly pay Ms Kraus damages of $12,000, and the parties were given a period to submit on the costs of the application. The court also outlined the process for determining any disputed costs.

Orders

Orders of the court

2. The respondents jointly pay to the applicant damages of $12,000.

3. The parties be at liberty to file and serve within 14 days such submissions as to the costs of the application as they may be advised, and to file any responsive submissions within a further period of 14 days, to the intent that the Court will then determine any disputed issue as to the costs of the application on the written submissions.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The first step is to identify clearly how Ms Kraus was treated. The second step is to identify the comparable circumstances, for the purposes of seeing how a male person rather than a female person would have been treated. That presents some difficulty in the present matter. It is not clear whether it is necessary to assume sexual harassment of a male employee of similar nature to that asserted by Ms Kraus, and to then decide if the employer would have treated a male employee differently, or whether the fact that Mr Menzie’s conduct was directed towards Ms Kraus because of her sex is sufficient. In this case, the contention was that the different treatment was in the isolating of Ms Kraus when the harassing conduct ceased, so the question may be whether a male victim of harassment would have been treated differently. For reasons which appear below, it is not necessary to determine how the “counterfactual” should be constructed and answered. CONSIDERATION OF EVIDENCE AND FINDINGS Both Ms Kraus and Mr Menzie gave their evidence in an apparently straightforward way. From their respective demeanour, I did not discern any particular reason to reject the evidence of one or other of them. Nevertheless, that task confronts the Court, in particular on the issue of whether they had a sexual relationship. In that respect, there is no room for error or misunderstanding. There is no room for the conduct to have been misunderstood as unwelcome, despite a belief on the part of Mr Menzie that his conduct was welcome. The finding on that issue may also assist in determining whether Mr Menzie’s undisputed conduct was in fact unwelcome by Ms Kraus, as she claimed, and, if it was, whether from the perspective of a reasonable bystander, viewed objectively, the bystander would have anticipated that Ms Kraus would be offended, humiliated or intimidated by that conduct. The assessment of the respective reliability of the evidence of Ms Kraus and Mr Menzie is considerably assisted by other evidence, mostly generated by them, which was contemporaneous with the conduct of which Ms Kraus complains. It is also assisted by features of their respective evidence, each given over some considerable time, in relation to other evidence and to its inherent probability. The evidence includes the very extensive text messages that passed between them, apparently commencing on 25 September 2009 and ending on 13 April 2010. The text messaging commenced about two weeks after Ms Kraus first started work with The Truck Company, and ended about two weeks before her employment came to an end. There are also very extensive photographs, mainly taken of Ms Kraus by Mr Menzie; telephone account records relating to The Truck Company; and a video record taken by Mr Menzie on his phone of Ms Kraus on 28-29 November 2009 when they were in Melbourne together. I also note that Ms Kraus provided to the Workers Compensation insurer of The Truck Company a typed statement setting out lists of “Sexual Harassment Issues” and “Things Mark has bought me that has been unwanted and have as evidence” and of “Places Mark has taken me that have been unwanted”. Its contents are consistent with her evidence, and the “Chronology” of some 39 pages which she adopted as part of her evidence. It is dated 31 May 2010. It was compiled by Ms Kraus in the period up to that date, from about one month after her employment came to an end. She said it represented her recollection of events and how she felt about them from time to time over the period of her employment. The Chronology was obviously compiled in part by reference to the records of text messages. There is also in evidence a transcription of a tape-recorded interview of Ms Kraus by a representative of the Working Women’s Centre, made on 21 June 2010; a “Statement of Events and References” provided by Ms Kraus to the Worker’s Compensation insurer of The Truck Company, apparently provided to one of the medical witnesses as the relevant factual history; and the claim form for worker’s compensation dated 11 May 2010. Each of those documents is consistent with her evidence.

Decision

Reasons for decision

However, in the light of my findings about the limited extent to which Ms Kraus was exposed to sexual harassment in the course of her employment, the last occasion of which concerned the Christmas gifts given to her by Mr Menzie, I do not attribute her decision to not return to work in any way to being a consequence of the sexual harassment which I have found to have been established. I accept her evidence that, from about early March 2010, Mr Menzie avoided significant contact with her. It was part of her job to have contact with him on a regular basis. There was certainly no clear contact beyond formal employment relations. It may be that she perceived that she had been isolated in her place of employment. If that were the case, I do not attribute that to Mr Menzie fearing the consequences of sexual harassment from her. It would be a consequence, if it occurred, simply of Mr Menzie stepping back from the personal relationship and giving effect to her wish not to participate in a personal relationship. The evidence that persons other than Mr Menzie, in that period from early March 2010, avoided contact with Ms Kraus was not sufficiently precise or cogent to justify a finding that she was, more generally, excluded from normal work communications or activities. I do not find that that occurred.CONCLUSIONS Consequently, I find that The Truck Company and Mr Menzie contravened s 28B of the SD Act by sexually harassing Ms Kraus in the respects specifically mentioned above. Those findings relate to the gifts purchased on the occasion that Ms Kraus and Mr Menzie went jet skiing together on 7 November 2009, the occasion when Mr Menzie urged Ms Kraus to go swimming with him on the way back from Port Wakefield on 19 November 2009, the occasion when he endeavoured to share the cabin bunk of the truck with her on the trip back from Mount Gambier on 22-23 November 2009, the nature of the Christmas gifts he gave to her for Christmas 2009, and the sending of the sexually explicit phone images. It is not established that that conduct caused any real detriment to Ms Kraus. I have found, indeed, that notwithstanding that conduct, she participated at some level in a mutual relationship with him during December 2009, which extended into January and February 2010, albeit with a significant set back due to the events which took place when she was in Tasmania with him in early January 2010, and that that relationship included four occasions of sexual intercourse. I do not find that the conduct identified as sexual harassment amounted to discrimination in employment in contravention of s 14(2) of the SD Act. That is simply because I do not think that, as a result of that conduct, The Truck Company or Mr Menzie discriminated against Ms Kraus by subjecting her to any detriment in her employment or by the terms or conditions of employment which were afforded to her. They were instances of sexual harassment which did not affect her employment in any respect. Specifically, I do not accept that those instances of sexual harassment had any role to play in the conversation which Mr Menzie had with Ms Kraus on 23 April 2010, or of any assessment of the quality of her work in the weeks preceding that period of time. She was able to perform her normal duties throughout the whole of the time of her employment, and her employment came to an end from circumstances which were unrelated to that identified conduct. Consequently, I do not need to address whether she was treated less favourably than, in circumstances that are the same or not materially different, The Truck Company or Mr Menzie treated or would have treated a male person. That issue does not arise.

Ratio Decidendi

Legal Principle Established

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