Lee v Smith
[2007] FMCA 59
•23 March 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LEE v SMITH & ORS | [2007] FMCA 59 |
| HUMAN RIGHTS – Discrimination Law – sexual harassment – sex discrimination – victimisation – pornography in the workplace – rape – employment – sexual harassment by fellow employee – whether employer vicariously liable – whether harassment ‘in connection with employment’ – whether employer unlawfully victimised applicant due to her making a complaint of sexual harassment. |
| Human Rights and Equal Opportunity Commission Act 1986 (Cth) ss.3, 46PO (1),(4), 46PR Sex Discrimination Act 1984 (Cth), ss.28 (A), 28B, 14, 5, 9(4), 94, 106 |
| Chief Constable of the Lincolnshire Police v Stubbs [1999] IRLR 81 Leslie v Graham [2002] FCA 32 Smith v Christchurch Press Company Ltd [2001] 1 NZLR 407 South Pacific Resort Hotels Pty Ltd v Trainor [2005] FCAFC 130 Waters v The Public Transport Corporation (1991) 173 CLR 349 X v State of Tasmania [1994] HREOCA 15 (8 July 1994) |
| Applicant: | CASSANDRA LEKEI LEE |
| First Respondent: | AUSTIN SMITH |
| Second Respondent: | RODERICK HOMER |
| Third Respondent: | BERNARD DONCHI |
| Fourth Respondent: | COMMONWEALTH OF AUSTRALIA (DEPARTMENT OF DEFENCE) |
| File Number: | BRG 204 of 2004 |
| Judgment of: | Connolly FM |
| Hearing date: | 14 November 2006 |
| Date of Provision for Last Submission: | 12 December 2006 |
| Delivered at: | Darwin |
| Delivered on: | 23 March 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr Henry SC |
| Solicitors for the Applicant: | Whettanhall Silva Solicitors |
| Counsel for the First Respondent: | Mr Murphy SC |
| Solicitors for the First Respondent: | Carew Solicitors |
| Counsel for the Second, Third and Fourth Respondents: | Mr Horneman-Wren |
| Solicitors for the Second, Third and Fourth Respondents: | Blake Dawson Waldron |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CAIRNS |
BRG 204 of 2004
| CASSANDRA LEKEI LEE |
Applicant
And
| AUSTIN SMITH |
First Respondent
| RODERICK HOMER |
Second Respondent
| BERNARD DONCHI |
Third Respondent
| COMMONWEALTH OF AUSTRALIA (DEPARTMENT OF DEFENCE) |
Fourth Respondent
REASONS FOR JUDGMENT
Proceedings
This judgment arises from a complaint to the Human Rights and Equal Opportunity Commission which was terminated by the President pursuant to s.46PO(1) of the Human Rights and Equal Opportunity Commission Act1986 (Cth) on the basis that there was no reasonable prospect of the matter being settled by conciliation. The application is made pursuant to s.46PO to the Federal Magistrates Court of Australia alleging unlawful discrimination.
The Applicant was employed in an administrative position at the Patrol Boat Landing Class Logistics Office in Portsmith, Cairns. Members of both the Navy and the civilian Department of Defence employees worked in that office. The Navy and the Department of Defence are each entities of the Commonwealth of Australia which is the Fourth Respondent. The First, Second and Third Respondents referred to as Smith, Homer and Donchi all worked in the office.
The substance of the Applicant’s claim is set out in the Points of Claim filed by the Applicant on 30 June 2004. Points of Defence were filed by the Second, Third and Fourth Respondents on 26 July 2004 and by the First Respondent on 14 September 2004.
The application was supported by the following affidavits:
i)the affidavit of Cassandra Lee sworn 19 April 2004 and filed 20 April 2004;
ii)further affidavit by the Applicant sworn 5 January 2005 and filed 6 January 2005;
iii)the third affidavit of the Applicant sworn 4 July 2005 and filed 7 July 2005;
iv)the affidavit of John Wallace Knibb sworn 24 December 2004 and filed 30 December 2004;
v)affidavit of Ann Caroline Mena sworn 24 August 2004 and filed 30 December 2004;
vi)the affidavit of Patrick Joseph Meikle sworn 23 January 2004 and filed the 30 December 2004;
vii)the affidavit of Darrin Lindsay Cross sworn 5 January 2005 and filed 1 February 2005;
viii)the affidavit of James Woolridge sworn 11 January 2005 and filed 20 January 2005;
ix)
the affidavit of Gregory Keith Marheine sworn
14 December 2005and filed 22 December 2005.
The affidavit material relied upon by the First Respondent is as follows:
i)
The affidavit sworn by him 7 December 2004 and filed on
7 December 2004;
ii)further affidavit of the Respondent sworn 21 February 2006 and filed 22 February 2006;
iii)affidavit of Laura O’Shannessy sworn 14 February 2006 and filed 15 February 2006;
iv)affidavit of Colin Barry Storey sworn 14 February 2006 and filed 15 February 2006.
The affidavit material relied upon by the Second, Third and Fourth Respondents is as follows:
i)The affidavit of Bernard Lawrence Donchi sworn 12 May 2004 and filed 19 May 2004;
ii)the affidavit of Roderick William Homer sworn 13 May 2004 and filed 19 May 2004;
iii)the affidavit of Siobhan Bacon sworn 2 February 2006 and filed 7 February 2006;
iv)
the affidavit of Shane Bellingham sworn and filed
15 February 2006;
v)
a further affidavit of Bernard Lawrence Donchi sworn
9 February 2006and filed 14 February 2006;
vi)affidavit of Jennifer Hannon (nee Uebel) sworn 2 February 2006 and filed 9 February 2006;
vii)
further affidavit of Roderick William Homer sworn
6 February 2006filed 7 February 2006;
viii)
affidavit of Marcus Jeffery sworn 2 May 2006 and filed
4 May 2006;
ix)affidavit of Dennis McLeod sworn 17 March 2006 and filed 12 April 2006;
x)affidavit of Peter Metcalf sworn 15 February 2006 and filed 17 February 2006;
xi)affidavit of Stephen Royan sworn 4 February 2006 and filed 7 February 2006;
xii)affidavit of Stephen Wallace Spooner sworn 7 February 2007 and filed 9 February 2007;
xiii)
affidavit of Laura O’Shannessy sworn and filed on
15 February 2006.
xiv)
affidavit of Grace Brice sworn 28 April 2006 and filed
3 May 2006;
xv)
affidavit sworn by Mr Michael Denis Fowler sworn
17 February 2006and filed the same day.
Background
The Applicant was employed in an administrative position at the Navy’s Patrol Boat Landing Class Logistics Office in Kenny St, Cairns. Both members of the Navy and civilian employees of the Department of Defence work in that office. The Navy and the Department of Defence are ultimately entities of the Commonwealth of Australia who is the Fourth Respondent. The Applicant and the First, Second and Third Respondents all worked in the office. The Second and Third Respondents were occupied in more senior positions than that of the Applicant and on occasion purported to exercise supervision and or control of the Applicant. The Applicant’s Points of Claim identify a number of subheadings which detail the Applicant’s claim.
Pornography in the workplace
(arising from paragraphs 7 – 15 of the Points of Claim)
In summary, it is the Applicant’s claim that during the Applicant’s employment in the workplace, calendars of topless women and computer images containing pornography were readily visible to the Applicant as she moved about the workplace. It is alleged that one of the calendars was displayed by the First Respondent Smith in the vicinity of his work station. The Applicant’s claim is that the causing of or the failure to prevent such displays was an unlawful discrimination within the meaning of section 3 of Human Rights and Equal Opportunity Commission Act 1986 (Cth) and or alternatively sex discrimination. It is claimed that:
a)The First Respondent is liable for the said unlawful discrimination by reason of his display of a calendar;
b)The Second Respondent, Third Respondent and Fourth Respondent are liable for said unlawful discrimination by reason of their failure to prevent the occurrence or alternatively the repeated occurrences of the aforesaid displays;
c)The Fourth Respondent is liable for the said unlawful discrimination by reason of its commission by employees of the Fourth Respondent in connection with their employment.
Behaviour during and soon after the course
(arising from paragraphs 16 to 31 of the Points of Claim)
It is the Applicant’s claim that during of the week of 12 to 16 February 2001, the Applicant and the First Respondent Smith participated in a computer course conducted by the Fourth Respondent in respect of the ROMAN database. On or about 12 February 2001 when the Applicant and First Respondent were in attendance at the course it is alleged that the First Respondent typed on a computer being shared by he and the Applicant words “Austin is a champion in the sack”. It is further alleged that the First Respondent wrote his home phone number on the Applicant’s writing pad and when asked by the Applicant why he had done that, the First Respondent allegedly replied that if the Applicant ever wanted to go out with him she should call him.
On or about 13 February 2006 it is alleged that while the Applicant and the First Respondent were waiting in front of the course venue to be transported by a member of their workplace they had a conversation wherein the First Respondent allegedly said to the Applicant that he would like to have sex with her. It is further alleged that after the Applicant rejected the First Respondent he said to the Applicant “you will be sorry” in a threatening tone and told the Applicant that the workplace transport was not coming to pick her up and that she “might as well start walking back to the office”. It is further alleged that on or about the evening of 13 February 2001 the Applicant and the First Respondent had a phone conversation initiated by the Applicant. The Applicant says that she apologised to the First Respondent for calling the First Respondent a ‘sleazebag’ and told him that she wanted him to stop making advances towards her as she would continue to reject those advances and this would cause tension in the workplace.
It is alleged that the First Respondent in turn agreed to stop his advances and apologised to the Applicant. It is further alleged that on 14 February 2001, that in a conversation between the Applicant and the First Respondent during the lunch break the First Respondent apologised to the Applicant for his behaviour and said that he accepted her rejection of his advances. It is claimed that the First Respondent then said he would continue to “perve” at the Applicant’s “ass” when she was walking past.
It is further alleged that on a date during the week of the ROMAN course when the Applicant and the First Respondent were at the workplace prior to attending the course, the First Respondent told the Applicant he had left something in her top drawer. The Applicant alleges that she then went to and opened her top drawer and found a yellow ‘post-it’ note containing the handwritten message “mmm… I think I want Austin sandwiches for lunch... (Happy face symbol) his meat between my two lovely thighs”. It was alleged that the note was written by the First Respondent and placed in the Applicant’s drawer by the First Respondent.
On 15 February 2001 it is the Applicant’s case that at the course venue, the First Respondent was seated nearby the Applicant and leant over the Applicant’s desk and wrote on her course notes “I just ripped a hole in my jeans… I don’t have underwear on” The Applicant says that the First Respondent further wrote on the Applicant’s course notes; “I can touch my penis through the hole”. The Applicant further alleges that she observed the First Respondent’s penis was partly poking out of the hole in his jeans.
It is further alleged by the Applicant that on 15 February 2001 when the Applicant and the First Respondent returned to their workplace from the training course venue, the Applicant was standing at a photocopier when the First Respondent approached her from behind. It is claimed that the First Respondent lifted up the Applicant’s skirt, pushed himself against her and squeezed her buttock. The Applicant says that she told the First Respondent to “cut it out” and he walked off. The Applicant says she then returned to her desk and the First Respondent telephoned her and apologised for what he had done, promising it would not happen again.
On or about 21 February 2001, the Applicant alleges that the First Respondent telephoned the Applicant’s home number and the call was answered by her mother. It is further alleged that the First Respondent gave the Applicant’s mother his telephone number and told her mother that he was just calling to see how the Applicant was. Later on the same day, after the Applicant arrived at work, she enquired of the First Respondent why he had telephoned her at home. She claims that the First Respondent said he was concerned the Applicant was distressed because of the incident when he grabbed her buttock and that he apologised and said it would not happen again. It is further alleged that the First Respondent then told the Applicant he had obtained her phone number from her personal file in the Resource Management section.
The Applicant says that the conduct of First Respondent described under the above subheading was unwelcome to the Applicant and occurred in respect of a fellow employee in the course of the First Respondent’s employment with the Fourth Respondent at his place of employment and in the course of him attending another venue in his capacity of an employee of the Fourth Respondent. She further claims that as such, this was unlawful discrimination and within the meaning of s.3 of the Human Rights and Equal Opportunity Commission Act1986 (Cth) by way of sexual harassment and alternatively sex discrimination. It is contended by the Applicant that the First Respondent is liable for the said unlawful discrimination by reason of his commission of the aforesaid conduct and that the Fourth Respondent is liable for the said unlawful discrimination by reason of it commission by an employee of the Fourth Respondent in connection with his employment.
The rape
(arising from paragraphs 32 to 45 of the Points of Claim)
It is the Applicant’s case that on the evening of 2 March 2001, the Applicant was invited by Laura O’Shannessy, a fellow employee and an employee of Fourth Respondent to attend after-work drinks with a few fellow employees. It is alleged that she went to the home of employees Laura O’Shannessy and Colin Storey with the First Respondent. While at Ms O’Shannessy’s home the Applicant became incapacitated and unconscious. It is further alleged that when she awoke the following morning around day-break, naked from the waist down at the home of Smith, the First Respondent, her vagina was being penetrated from her rear by the penis of the First Respondent.
The Applicant contends that the sexual intercourse occurred without the consent of the Applicant. The Applicant says she immediately moved from the bed of the First Respondent at which time the First Respondent made a number of threats to the Applicant if she revealed what had occurred, including using his influence upon work staff to drive her from the workplace. The Applicant also contends that the First Respondent also made threats to harm her and or her family.
It is alleged that when the Applicant moved to depart from the First Respondent’s premises the First Respondent pulled at her arm and asked her if she wanted to go again. It is further alleged that the First Respondent further told the Applicant after she told him to get away from her, words to the effect of; “It was consensual sex. Just remember that.”’ The First Respondent allegedly told the Applicant, after she had expressed concern about his comment, that he had ejaculated and not used a condom, words to the effect of; “You’ve got a kid. You’ve got a settled life. You’re not going to give me anything.”
It is further alleged that the Applicant then travelled home and informed her partner Darrin Cross of the fact that the First Respondent had sexual intercourse with her without her consent when she was unconscious. The following day, 4 March 2001, the Applicant attended the Cairns 24 Hour Medical Centre and was examined by a doctor and prescribed a ‘morning-after pill’.
The Applicant maintains that the conduct described above was unwelcome and occurred in respect of a fellow employee, consequent upon and in the progression from unlawful discrimination already committed upon the Applicant by the First Respondent in connection with his employment. Further, the Applicant says that it was done in the context of contact arising from and which would not have otherwise occurred but for the attendances at the home of employees of the Fourth Respondent, Ms O’Shannessy and Mr Storey.
It is the Applicant’s case that the conduct was unlawful discrimination within the meaning of s.3 of Human Rights and Equal Opportunity Commission Act1986 (Cth) by way of sexual harassment and or alternatively sex discrimination. Further, it is alleged that the First Respondent is liable for the said unlawful discrimination by reason of his commission of the said conduct and the Fourth Respondent is liable by reason of its commission by an employee of the Fourth Respondent in connection with his employment.
Behaviour subsequent to rape
(arising from paragraphs 46 to 59 of the Points of Claim)
The Applicant claims that in the following days at the workplace, the First Respondent Smith repeatedly approached the Applicant at the workplace and at workplace functions, making a variety of threatening remarks in an obvious attempt to intimidate her against revealing what had occurred. On 5 March 2001, when the Applicant was in the tea room at the workplace, the First Respondent approached her from behind and placed his hand on her shoulder. He apologised for what he had done saying words to the effect of “I couldn’t help it.” The Applicant told the First Respondent to stay away from her and not ever to speak to her again.
The Applicant claims that on 9 March 2001, the Applicant and the First Respondent attended a workplace lunch time barbecue held to farewell Lieutenant-Commander Bacon and the First Respondent repeatedly stood in the path of the Applicant and would say words to the effect of “excuse me” where upon the First Respondent would turn away without acknowledgment. After the barbecue, the Applicant says that she spoke with the First Respondent describing his conduct as harassment. She claims that she told him to leave her alone completely and that she would keep her “mouth shut” about what he had done. The First Respondent allegedly said he knew that the Applicant would keep her mouth shut; otherwise she would lose everything including her job and her family. After the Applicant told the First Respondent she was not going to ignore what he had done and that she had told her partner who was angry, it is claimed that the First Respondent said he did not care and that he and his Navy mates would “smash the Applicant’s partner’s head in”.
The Applicant says that on or about 9 March 2001, the Applicant arrived at the workplace sunburnt. The Applicant communicated that fact with the First Respondent and asked about the possibility of using his moisturising cream. The First Respondent sent the Applicant an email saying:
“Well I don’t know what you mean about Friday’s efforts, but I never made the rule about not talking. That was your lovely self and for a years subscription to Lobster Weekly you can get free massages, free rubdowns with cool soothing Aloe Vera Cream and don’t forget about our introductory offer for first time members… oops, I didn’t think you would (sic) the offer.”
The Applicant alleges that on or about 26 April 2001, the Applicant and First Respondent were both in the workplace tea room when the First Respondent told the Applicant that had she gone to the RSL the previous day she would have seen his navy mates. That those mates were bigger than he and that one of his mates was twice his size, a gentle giant who knew how to fight when he needed to. And the First Respondent then allegedly ‘winked at’ the Applicant.
The Applicant further claims that on 5 May 2001 the Applicant and the First Respondent were each in attendance at the birthday gathering at the home of Ms O’Shannessy when the First Respondent approached the Applicant and told her he wanted to have sex with her.
It is the Applicant’s case that on 25 June 2001 at the workplace, the First Respondent approached the Applicant at her desk at a time when other fellow employees in her section had left and told the Applicant that he wanted to have sex with her. The First Respondent said he could not help it as had to look at her “ass” throughout the day and would get a “wood”.
The Applicant claims that the First Respondent asked then asked her how she and her fellow employee Miss Jennifer Hannon were getting along and when the Applicant replied she knew she had the First Respondent to thank “for that”, the First Respondent smiled. It is alleged that the First Respondent told the Applicant to make sure that she kept her “mouth shut”. It is also alleged that the First Respondent allegedly told the Applicant that his ‘navy mates’ were entering into an indoor cricket team to play on Wednesday nights against the Applicant’s partner’s team and that was a reminder to her partner of what he was up against so he did not try any sort of revenge.
The Applicant claims that in respect of Ms Hannon (nee Uebel), the Applicant had previously in the course of abusing the First Respondent for his treatment of her said, by way of example, that she would not be surprised that he had made advances towards Ms Hannon’s daughter. Ms Hannon subsequently approached the Applicant and told her that the First Respondent had informed Ms Hannon that the Applicant had told the First Respondent that Ms Hannon was telling people at the workplace that the First Respondent was making advances on her daughter when she was house sitting for him. The Applicant’s relationship with Ms Hannon thereafter soured.
The Applicant maintains that the words and conduct of the First Respondent described above were unwelcome to the Applicant. The Applicant states that the aforesaid conduct was done in respect of a fellow employee in the course of the First Respondent’s employment with the Fourth Respondent and at the First Respondents place of employment. It is also claimed that the aforesaid conduct was consequent upon and in progression from an unlawful discrimination already committed in respect of the Applicant by the First Respondent in connection with his employment.
The Applicant claims that the aforesaid conduct was unlawful discrimination within the meaning of s.3 of the Human Rights and Equal Opportunity Commission Act1986 (Cth) by way of sexual harassment and or alternatively sex discrimination.
Aggravation and victimisation
(arising from paragraphs 60 to 111 of the Points of Claim)
The Applicant says that on 23 July 2001 she left a message for Lieutenant-Commander Chris Gallagher, Senior Equity Advisor, and employee of the Fourth Respondent to contact her. The following day on 24 July, the Applicant claims that Lieutenant-Commander Gallagher phoned the Applicant who explained that she needed to talk to him privately about a personal matter in his capacity as Senior Equity Advisor and an appointment was agreed for 2pm. It is alleged that at approximately 1pm on the same day, Shane Bellingham, the workplace Assistant Manager, an employee of the Fourth Respondent, asked the Applicant why she was going to see the Senior Equity Advisor. It is claimed that Mr Bellingham told the Applicant that Lieutenant Spooner, an employee of the Fourth Respondent, had received a call from the Senior Equity Advisor asking what the Applicant’s problem was. It is further asserted that Mr Bellingham also told the Applicant Lieutenant Spooner had asked Ms O’Shannessy and Mr Bellingham what they knew about the matter.
The Applicant asserts that the information conveyed by Mr Bellingham to the Applicant in the conversation was true. It is also stated that the above communications by Lieutenant-Commander Gallagher to Lieutenant Spooner and by Lieutenant Spooner to Ms O’Shannessy and Mr Bellingham breached the Applicants confidence and should not have occurred. The Applicant says that after the conversation took place between the Applicant and Mr Bellingham the Applicant returned to her desk in a distressed state. Ms Mena called the Equity Officer’s office and cancelled the Applicant’s appointment because of the Applicant’s state of distress. The Applicant says that she then provided some information about the First Respondent’s conduct towards her to Mena. The Applicant says that Mena initiated action culminating in the removal from the workplace of the First Respondent.
The Applicant alleges that on 27 August 2001, the Third Respondent told the Applicant he was not happy about the way in which she had notified him of the First Respondent’s harassment. The Applicant additionally states that he further said that the Applicant should ask at the Coxwain’s office after Ms Grace Brice who was a Human Resources Consultant from Townsville in attendance at Cairns to advise the Applicant of her rights and of the assistance available to her in relation to the harassment. Ms Brice was in fact an investigator appointed by the Applicant’s Commanding Officer to formally investigate the harassment of the Applicant by the First Respondent as notified by Mena, as the Third Respondent was well aware.
The Applicant reports that on 28 August 2001, the Applicant became distressed, was crying and was observed by the Third Respondent in that state in the workplace. The Applicant further reports that on
12 September 2001, at a time when the base at which the workplace was located had been placed on weather clock amber alert, the Applicant had to by-pass an entry to the base. The First Respondent was a sentry on duty at this entry and the First Respondent smiled at her as she passed. It is the Applicant’s case that the First Respondent should not have been assigned to such a post given its potential for contact with the Applicant.
It is alleged that on 13 September 2001 when the Applicant notified the workplace by telephone that she was sick and would not be attending work, she spoke inter alia with Mr Bellingham and provided him with her home telephone number in case the Third Respondent wished to speak to her. She says that on 14 September 2001 when the Applicant was also off work sick, she advised Mr Bellingham that on her return from the doctor’s appointment she would take her phone off the hook to sleep but would reengage the phone mid-afternoon if the Third Respondent wished to call her. It is claimed that on 14 September 2001 at about 3pm, the Third Respondent telephoned the Applicant at her home. The Applicant says that the Third Respondent’s tone during the call was extremely unsympathetic and he did not ask the Applicant what was wrong with her. The Third Respondent allegedly said words to the effect of:
“We can’t keep going like we are. The LOTE project and its team members are suffering because of your personal problems. You’re hardly here and when you are, you don’t do any work. You are always talking to Anne (W.O Mena) about your personal problems”.
The Applicant says that she advised the Third Respondent she had been told by her doctor that she needed rest. It is stated that the Third Respondent replied that the Applicant needed to know not to bring her personal problems to work. He allegedly also told the Applicant he had been advised she had claimed she had experienced an unpleasant encounter with the First Respondent at the base gate and that the Third Respondent did not believe that that should affect her and further he believed that it was the Applicant’s partner who upset her. The Applicant contends that the Third Respondent informed the Applicant he was not happy that she had not supplied the Commanding Officer of HMAS Cairns with a written authority to search her emails in respect of her sexual harassment complaint. It is reported that he went on to say that he had given her an instruction to produce the authorisation which she had failed to produce. It is alleged that the Third Respondent asserted that the Commanding Officer would therefore be issuing the Applicant with a warrant “So [she] needn’t bother now.” The Third Respondent allegedly told the Applicant that he fully expected her to be at work first thing Monday morning.
The Applicant maintains that she had withheld providing the authorisation to search her emails due to a lack of confidence in the investigation and a fear of the contents of the emails being manipulated and furthermore, was entitled to withhold her authorisation for her emails to be searched. On 24 September 2001 after the Third Respondent’s return from one week’s leave, the Third Respondent called the Applicant into his office. He told the Applicant words to the effect of “The CO wants you to provide written authorisation now because he doesn’t want to issue a warrant on you. If he doesn’t receive the authorisation he will cancel the investigation.” The Applicant says that she reminded the Third Respondent that he had stated during the conversation of 14 September 2001 that the Applicant need not bother issuing the authorisation. The Applicant claims that the Third Respondent then denied having told the Applicant she need not bother issuing the authorisation.
It is alleged that on 11 October 2001, the Third Respondent confirmed with the Applicant that she was to act on higher duties allowance in the position which was soon to be vacated by W.O Mena, Finance Manager of level AS05.
It is alleged that performance reviews were conducted in the workplace from time to time and were recorded on a so-called ‘plan on a page’. It is further alleged that on 25 October 2001 which was the day after W.O Mena’s last day, the Third Respondent endorsed and discussed with the Applicant her ‘plan on a page’ for the period November 2000 to October 2001. It is claimed that the Third Respondent endorsed the Applicant’s ‘plan on a page’ with the words:
“Her main tasking has been management of correspondence which has been very good, but at times has been neglected with the interference of personal problems. Registering and filing has been carried out diligently but at times has been slow because of her personal problems.”
It is maintained that the Third Respondent discussed these comments with the Applicant stating that her workload had fallen behind at times due to her bringing personal problems to work. The Applicant says that she informed the Third Respondent that she did not intend to counter-sign the page because she did not agree with these comments and told him it was not a case of her bringing her personal problems of work but that her problems were within the workplace. It is reported that the Third Respondent stated that was untrue and that what had happened to her had happened outside of work, making the Applicant’s issues personal ones. She claims that the Third Respondent was unsympathetic in his manner and tone during this conversation. The Applicant allegedly cried throughout the conversation. It is the Applicant’s assertion that the Third Respondent suggested that the Applicant was going to whinge to the Union and indicated that he would remove his comments, which he did.
The Applicant claims that during late October and early November 2001, the Third Respondent witnessed fellow employees verbally abuse the Applicant but did nothing to assist her despite the fact that he witnessed her sitting at her desk crying on several occasions. During this period the Applicant says that she approached and spoke with the Third Respondent. She allegedly complained about the abusive treatment by her fellow employees Bellingham and Royan, both of whom were employees of the Fourth Respondent. The Applicant claims that the Third Respondent said be believed the treatment was justified and that he agreed with the conduct of Bellingham and Royan.
On 20 November 2001, the Second Respondent sent an email to
Mr Dennis McLeod, requesting termination of the Applicant’s employment, stating:
“Yet more HR challenges! There are significant performance and code of conduct issues with Cassandra Lee. Needless to say we are not proceeding with any Higher Duties for her. If Cassandra is a FTTE contract employee, my view is termination of the contract would be appropriate, but the employment status is now a complication. We will need to discuss the way ahead, would it be appropriate for the relevant managers to discuss options with Kim Schefe? Or perhaps we might be able to do a phone hook-up with you later today around 12:30.”
The Applicant maintains that the Second Respondent had not advised the Applicant or caused the Applicant to be advised of the allegedly significant performance and code of conduct issues referred to in the above email. It is also maintained that the Second Respondent had not advised or caused the Applicant to be advised that her higher duties would not proceed. The Applicant states that he had not advised or caused the Applicant to be advised that her position of employment was at a risk in consequence of her performance conduct. The Applicant claims that on the same day of 20 November 2001, the Second Respondent advised the Applicant that he was making a submission for her to be paid higher duties allowance.
On 21 November 2001, the Second Respondent sent the Applicant an email which the Applicant received on 22 November 2001, a copy of which was also sent to the Third Respondent. The email was entitled “Restricted – Formal Performance Counselling Session”. It allegedly asserted the Applicant had possibly failed to comply with APS Code of Conduct particularly requirements that an employee must:
“…comply with any lawful and reasonable direction given by someone in the employee’s agency who has authority to give the direction” and “not provide false or misleading information in response to our request for information that is made for official purposes in connection with the employee’s APS employment”.
The email referred to “concerns of your work performance” and advised the Applicant that the Second and Third Respondents intended to “address the issues through a formal performance counselling session” with the Applicant at 9:30am on 23 November 2001.
The Applicant says that on 22 November 2001, the Second Respondent refused to advise the Applicant of what the intended counselling session related to. It is further claimed that on the morning of
23 November 2001, the Second Respondent advised the Applicant that the counselling session was not about one particular incident and that her absence from the workplace on the afternoon of Friday
16 November 2001 would be raised at this session. The Applicant maintains that on the morning of 23 November 2001, the Third Respondent by an email to the Applicant, advised her that inter alia, he expected her to report back to him by the close of business that that in person with recognition that she should be prepared for the counselling session to commence at 9:30am on the following morning.Subsequently on the morning of 23 November 2001 the Applicant claims that she emailed the Third Respondent, forwarding a copy of the email to the Second Respondent, seeking clarification of whether the Second and Third Respondent intended to follow the procedures of paragraph 5.4 of Defence Instructions (General) (DIG) under which termination of employment is a possibility or whether the intention of the counselling was merely to air and resolve issues.
On the afternoon of 23 November 2001, the Respondent allegedly sent an email to the Applicant, a copy of which was forwarded to the First Respondent, advised the Applicant inter alia as follows:
“The session will follow guidelines in DIG19 as previously advised. Let me remind you of our discussions in producing your latest plan on a page where I relented, under your persistence to remove comments in relation to your performance. At that time I was under the impression that you had put your problems aside and was (sic) on track to improving your work output. But it seems that I was wrong. This will be expanded upon during the counselling session.”
It is the Applicant’s case that on 28 November 2001, the Third Respondent ordered the Applicant into a conference room at the workplace and, in reference to the fact that she had arranged for a Union representative to be present at the counselling session scheduled for the following day, told the Applicant he did not appreciate her bringing the “heavies” in on him. The counselling session was ultimately held on 29 November 2001 and the suggested breaches of the APS Code were not established and no basis for formal counselling was identified at the meeting.
The Applicant asserts that on 3 December 2001 the Third Respondent called the Applicant into his office and advised that Colin Storey had been contracted for two years to fill the Finance Manager’s position and he had been assigned the traditional role of acting as the Applicant’s supervisor. It is further asserted that he also informed the Applicant that Mr Storey would be taking daily notes regarding her performance and compiling a weekly report for the Third Respondent. The Applicant states that he further advised the Applicant that if her performance was not adequate he would place her on formal probation. The Applicant contends that the role of supervisor in respect of the Applicant’s position had not previously been assigned to the Finance Manager’s position.
The Applicant states that at the time of indicating Mr Storey’s appointment as the Applicant’s supervisor, the Third Respondent was aware of the Applicant’s misgivings about Mr Storey and in particular Mr Storey’s presence and knowledge in respect of the events of 2 and 3 March 2001. The Applicant also states that he was further aware of
Mr Storey’s glaring at the Applicant in the workplace and his indication to the Applicant that he and Ms O’Shannessy would support the First Respondent if the Applicant made a complaint about his behaviour towards her. In the course of that discussion of 3 December 2001, the Third Respondent allegedly informed the Applicant of specific tasks she was to perform including: do a ‘To do’ list daily, placing it clearly on her desk for all project staff to view and scrutinise; validate all outgoing correspondence from the commencement of the LOTE project; folio all correspondence on hard copy files; work at the ship yard with naval representatives one day a week and do the above duties on their files and other office duties as required there; and validate the drawings register against the drawings held on hard copy going back to the commencement of the project.
The Applicant maintains that the tasks above, particularly the requirement that it be positioned for viewing by all project staff, necessarily meant that project staff would be informed of the imposition of the task upon the Applicant. It is the Applicant’s claim that in the circumstances it was both demeaning and humiliating. It also meant that the Applicant would be involved in going back through about two years of records contained in two different databases checking every document sent by the project and ensuring that a hard copy was on the hard copy file and track correspondence which did not validate. The Applicant says that folioing all correspondence on hard copy files had not been done on the project before and therefore the task would have involved checking in excess of several hundred thousand pieces of correspondence. It is asserted that the task involved the physical act of folioing the documents and writing on the inside of the covering folder the folio number, date of correspondence, subject, whether the correspondence was incoming or outgoing and who the correspondence was from and to. The Applicant claims that validating the drawings register again involved going back though records held from the commencement of the project, vetting the several thousand plans and drawings and determining the whereabouts of drawings not on file.
The Third Respondent allegedly informed the Applicant that the tasks were to be completed by the first week in February in 2002. The Applicant contends that as at 3 December 2001, the Applicant had already been approved leave from 14 December 2001 to 14 January 2002 and in consequence of that and the time frame imposed by the Third Respondent in respect of those tasks, was effectively giving the Applicant only about five weeks to complete such tasks. The Applicant believes that the time frame imposed upon the Applicant by the Third Respondent for the completion of the tasks was impossible to fulfil.
On 6 December 2001, the Third Respondent emailed Dennis McLeod and forwarded a copy of the email to the Second Respondent wrongly implying the Applicant’s absences from work were not legitimately occasioned by illness and wrongly alleging misconduct and incompetence by her. On 10 December 2001, the Third Respondent sent an email to Mr McLeod and sent copies of the email to
Mr Worstencoft, Mr Storey, Mr Dagg and the Second Respondent. The Applicant clams that the email wrongly alleged impropriety on the part of the Applicant in the completion of her sick-leave form and wrongly implied that the Applicant’s absence from work was occasioned by a desire to avoid her workload and/or avoid interviews rather than being legitimately occasioned by illness. It is the Applicant’s case that on
7 January 2002, the Third Respondent sent an email to Mr McLeod wrongly implying that the Applicant would be likely to submit incorrect timesheets.
The Applicant claims that the conduct of the Second Respondent and the Third Respondent as described above occurred because the Applicant had alleged conduct by the First Respondent which was unlawful by reason of its constituting sexual harassment and/or sex discrimination. The Applicant claims that the conduct of the Second and Third Respondents aggravated the effect of the sexual harassment and/or alternatively sex discrimination and therefore indirectly constituted sexual harassment or alternatively sex discrimination. The Applicant upholds that the conduct was committed in the course of their employment with the Fourth Respondent in that the purported exercise of the power to direct and or supervise the Applicant. The Applicant alleges that the conduct of the Second and Third Respondents was unlawful discrimination within the meaning of s.3 Human Rights and Equal Opportunity Commission Act1986 (Cth) by way of victimisation and/or alternatively sexual harassment and/or alternatively sex discrimination. The Applicant claims the Second and Third Respondents are liable for the said unlawful discrimination by reason of their commission of the aforesaid conduct and the Fourth Respondent is liable for the said unlawful discrimination by reason of its commission by employees of the Fourth Respondent in connection with their employment.
Loss and damage
As a result of the unlawful discrimination pleaded in the Points of Claim, the Applicant alleges to have suffered and continues to suffer from the following:
a)post traumatic stress disorder;
b)depression;
c)stress;
d)reduced self-esteem;
e)sleep difficulties;
f)weight fluctuations;
g)diminished sense of well-being;
h)loss of libido;
i)diminished ability to concentrate;
j)fatigue;
k)diminished motivation and general interest in life;
l)impairment of her relationship with her partner and her child;
m)feelings of victimisation and alienation;
n)fear;
o)decline in general fitness;
p)sense of violation.
The Applicant further alleges to have suffered physical violation by reason of the First Respondent’s physical contact with her. Further, the Applicant alleges that by reason of the above problems the Applicant has not been able to work in employment and has also had to attend upon medical practitioners and psychiatrists and obtain counselling, physiotherapy and take medication.
The Applicant seeks the following orders by way of remedy:
a)That the Respondents provide a written apology to the Applicant for the unlawful acts of sex discrimination, sexual harassment and victimisation committed against the applicant for which they are responsible, either vicariously or in their own right;
b)That the Respondents pay compensation to the Applicant for the pain, suffering, hurt and humiliation she has experienced, and continues to experience, as a result of the acts of sex discrimination, sexual harassment and victimisation committed against the Applicant for which they are responsible, either vicariously or in their own right;
c)That the Respondents pay compensation to the Applicant for the economic loss (loss of income and entitlements) she has suffered, and will continue to suffer, as a result of the acts of sex discrimination, sexual harassment and victimisation committed against the Applicant for which they are responsible, either vicariously or in their own right;
d)
That the Respondents pay compensation to the Applicant for the medical expenses she has incurred and will continue to incur, as a result of the acts of sex discrimination, sexual harassment and victimisation committed against the Applicant for which they are responsible, either vicariously or in their own right;
The total amount of compensation claimed by the Applicant is:
Pain suffering, hurt and humiliation $120,000.00
Economic loss $400,216.00
Past economic loss
Loss of gross salary 96 weeks at $850/week $81,600.00
Superannuation on above figure at 16% $13,056.00
Past economic loss as at 19 April 2004 $94,656.00
Future economic loss
Loss of wages 104 weeks as at $875/week $91,000.00
Loss of superannuation benefits at 16% $14,560.00
Global claim for diminution in work functioning and ability
to earn an income $200,000.00
Total future economic loss $305,560.00
Medical expenses (past and future) $17,000.00
e)That the Respondents pay interest on the above awards, either in whole or in part, at such a rate and for such a period as this Honourable Court deems just;
f)That the Fourth Respondent re-deploy the Applicant to a suitable position within the Commonwealth Public Service upon the Applicant being certified by her treating psychiatrist as fit to resume employment, either on a full-time basis or as part of a graduated return to work program.
g)That the Respondents pay the Applicant’s legal costs at the approval scale.
The First, Second, Third and Fourth Respondents in entirety do not admit and/or deny the substance of the claims made by the Applicant against them. Their matters are set out in Points of Defence filed in this Court on 26 July 2004 and 14 September 2004 respectively
The law
The following provisions are relevant to the proceeding:
Human Rights and Equal Opportunity Commission Act 1986
46PO Application to court if complaint is terminated
(1) If:
(a) a complaint has been terminated by the President under section 46PE or 46PH; and
(b) the President has given a notice to any person under subsection 46PH(2) in relation to the termination;
any person who was an affected person in relation to the complaint may make an application to the Federal Court or the Federal Magistrates Court, alleging unlawful discrimination by one or more of the Respondents to the terminated complaint.
Note: Part IVA of the Federal Court of Australia Act 1976 allows representative proceedings to be commenced in the Federal Court in certain circumstances.
(4) If the court concerned is satisfied that there has been unlawful discrimination by any respondent, the court may make such orders (including a declaration of right) as it thinks fit, including any of the following orders or any order to a similar effect:
(a) an order declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat or continue such unlawful discrimination;
(b) an order requiring a respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant;
46PR Court not bound by technicalities
In proceedings under this Division, the Federal Court and the Federal Magistrates Court are not bound by technicalities or legal forms. This section has effect subject to Chapter III of the Constitution.
SEX DISCRIMINATION ACT 1984 - SECT 3
Objects
The objects of this Act are:
(a) to give effect to certain provisions of the Convention on the Elimination of All Forms of Discrimination Against Women; and
(b) to eliminate, so far as is possible, discrimination against persons on the ground of sex, marital status, pregnancy or potential pregnancy in the areas of work, accommodation, education, the provision of goods, facilities and services, the disposal of land, the activities of clubs and the administration of Commonwealth laws and programs; and
(ba) to eliminate, so far as possible, discrimination involving dismissal of employees on the ground of family responsibilities; and
(c) to eliminate, so far as is possible, discrimination involving sexual harassment in the workplace, in educational institutions and in other areas of public activity; and
(d) to promote recognition and acceptance within the community of the principle of the equality of men and women.
SEX DISCRIMINATION ACT 1984 - SECT 5
Sex discrimination
(1) For the purposes of this Act, a person (in this subsection referred to as the discriminator ) discriminates against another person (in this subsection referred to as the aggrieved person ) on the ground of the sex of the aggrieved person if, by reason of:
(a) the sex of the aggrieved person;
(b) a characteristic that appertains generally to persons of the sex of the aggrieved person; or
(c) a characteristic that is generally imputed to persons of the sex of the aggrieved person;
the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of the opposite sex.
(1A) To avoid doubt, breastfeeding (including the act of expressing milk) is a characteristic that appertains generally to women.
(2) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the sex of the aggrieved person if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons of the same sex as the aggrieved person.
(3) This section has effect subject to sections 7B and 7D.
SEX DISCRIMINATION ACT 1984 - SECT 9
Application of Act
(4) The prescribed provisions of Part II, and the prescribed provisions of Division 3 of Part II, have effect as provided by subsection (3) of this section and the following provisions of this section and not otherwise.
SEX DISCRIMINATION ACT 1984 - SECT 14
Discrimination in employment or in superannuation
(1) It is unlawful for an employer to discriminate against a person on the ground of the person’s sex, marital status, pregnancy or potential pregnancy:
(a) in the arrangements made for the purpose of determining who should be offered employment;
(b) in determining who should be offered employment; or
(c) in the terms or conditions on which employment is offered.
(2) It is unlawful for an employer to discriminate against an employee on the ground of the employee’s sex, marital status, pregnancy or potential pregnancy:
(a) in the terms or conditions of employment that the employer affords the employee;
(b) by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment;
(c) by dismissing the employee; or
(d) by subjecting the employee to any other detriment.
(3) Nothing in paragraph (1)(a) or (b) renders it unlawful for a person to discriminate against another person, on the ground of the other person’s sex, in connection with employment to perform domestic duties on the premises on which the first‑mentioned person resides.
(3A) It is unlawful for an employer to discriminate against an employee on the ground of the employee’s family responsibilities by dismissing the employee.
(4) Where a person exercises a discretion in relation to the payment of a superannuation benefit to or in respect of a member of a superannuation fund, it is unlawful for the person to discriminate, in the exercise of the discretion, against the member or another person on the ground, in either case, of the sex or marital status of the member or that other person.
(5) Subsection (4) does not apply if section 41B applies to that member in respect of that fund.
(6) In this section:
"member" , in relation to a superannuation fund, includes a person who has been a member of the fund at any time.
SEX DISCRIMINATION ACT 1984 - SECT 28A
Meaning of sexual harassment
(1) For the purposes of this Division, a person sexually harasses another person (the person harassed ) if:
(a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or
(b) engages in other unwelcome conduct of a sexual nature in relation to the person harassed;
in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimidated.
(2) In this section:
"conduct of a sexual nature" includes making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing.
SEX DISCRIMINATION ACT 1984 - SECT 28B
Employment, partnerships etc.
(1) It is unlawful for a person to sexually harass:
(a) an employee of the person; or
(b) a person who is seeking to become an employee of the person.
(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 of those persons.
(7) In this section:
"place" includes a ship, aircraft or vehicle.
"workplace" means a place at which a workplace participant works or otherwise carries out functions in connection with being a workplace participant.
"workplace participant" means any of the following:
(a) an employer or employee;
(b) a commission agent or contract worker;
(c) a partner in a partnership.
SEX DISCRIMINATION ACT 1984 - SECT 94
Victimisation
(1) A person shall not commit an act of victimization against another person.
Penalty:
(a) in the case of a natural person–$2,500 or imprisonment for 3 months, or both; or
(b) in the case of a body corporate–$10,000.
(2) For the purposes of subsection (1), a person shall be taken to commit an act of victimization against another person if the first‑mentioned person subjects, or threatens to subject, the other person to any detriment on the ground that the other person:
(a) has made, or proposes to make, a complaint under this Act or the Human Rights and Equal Opportunity Commission Act 1986;
(b) has brought, or proposes to bring, proceedings under this Act or the Human Rights and Equal Opportunity Commission Act 1986 against any person;
(c) has furnished, or proposes to furnish, any information, or has produced, or proposes to produce, any documents to a person exercising or performing any power or function under this Act or the Human Rights and Equal Opportunity Commission Act 1986;
(d) has attended, or proposes to attend, a conference held under this Act or the Human Rights and Equal Opportunity Commission Act 1986;
(e) has appeared, or proposes to appear, as a witness in a proceeding under this Act or the Human Rights and Equal Opportunity Commission Act 1986;
(f) has reasonably asserted, or proposes to assert, any rights of the person or the rights of any other person under this Act or the Human Rights and Equal Opportunity Commission Act 1986; or
(g) has made an allegation that a person has done an act that is unlawful by reason of a provision of Part II;
or on the ground that the first‑mentioned person believes that the other person has done, or proposes to do, an act or thing referred to in any of paragraphs (a) to (g), inclusive.
(3) It is a defence to a prosecution for an offence under subsection (1) constituted by subjecting, or threatening to subject, a person to a detriment on the ground that the person has made an allegation that another person had done an act that was unlawful by reason of a provision of Part II if it is proved that the allegation was false and was not made in good faith.
SEX DISCRIMINATION ACT 1984 - SECT 106
Vicarious liability etc.
(1) Subject to subsection (2), where an employee or agent of a person does, in connection with the employment of the employee or with the duties of the agent as an agent:
(a) an act that would, if it were done by the person, be unlawful under Division 1 or 2 of Part II (whether or not the act done by the employee or agent is unlawful under Divison 1 or 2 of Part II); or
(b) an act that is unlawful under Division 3 of Part II;
this Act applies in relation to that person as if that person had also done the act.
(2) Subsection (1) does not apply in relation to an act of a kind referred to in paragraph (1)(a) or (b) done by an employee or agent of a person if it is established that the person took all reasonable steps to prevent the employee or agent from doing acts of the kind referred to in that paragraph.
Findings
Pornography in the workplace
The Applicant in paragraphs 5 to 14 of her affidavit sworn 19 April 2004, sets out the basis of her claim that there were displays of pornography in the workplace as follows:
5. From the commencement of my employment with the Department, it was immediately apparent that pornography was an accepted part of the workplace. I recall three calendars featuring nude women for each month. I believe these may have been ‘Ralph’ magazine or ‘FHM’ magazine specials. The women were topless.
6. One of these calendars was on public display to all staff as they walked from one end of the office to the tearoom or each time staff went to and from the toilet or to and from the rear car parking area.
7. One was along the corridor between the cubicles near the whiteboard that was kept near the mechanical station. The third calendar was on a shelf beside the First Respondent’s cubicle/workstation.
8. Within the office a number of staff had computers on their desks. Some of these computers, at various times, featured pornographic ‘screen savers’. I recall that there was one consisting of a close photograph of a penis which had been pierced with large objects. This screen saver belonged to Chief Petty Officer Richard O’Halloran.
9. Another staff member, Shane Bellingham, Assistant Manager of the LOTE Project, had a screen saver of a woman bending over looking through her legs – she appeared to be a female with breasts but then it automatically moved up and she was seen to have male genitals. These genitals were fully exposed.
10. There were occasions when I went to the desks of some of the male staff and saw that the staff were viewing pornographic advertisements or pornographic material. I recall seeing an advertisement for ‘adult.shop.com’ showing vibrators and other sex implements. On other occasions I saw nude women on the screens and also scenes depicting sexual acts between women and women and men and women. Some of these images were very explicit.
11. I saw images of this type on computers within the office on almost a daily basis. No one to my knowledge was ever reprimanded about the display of these images or requested to removed them or refrain from viewing them.
12. I formed the clear impression that pornography (both soft and hard core in nature) was a welcome and accepted part of the work environment. I found this open display of pornography deeply offensive. I tried to ignore the images as much as possible. However, this was difficult because of their proliferation.
13. I did not make an official complaint because I was desperate to leave Centrelink and obtain a permanent position within the Defence Department. I did not wish to work in the private sector because I valued the flexibility available in the public sector. This was especially because of my family commitments.
14. My position with the Department was temporary and I did not wish to ‘rock the boat’ when it seemed that the display of pornographic images was an entrenched aspect of the workplace culture.
The Applicant’s evidence about pornography in the workplace was questioned by both counsel for the First Respondent and counsel for the Second, Third and Fourth Respondents but in my view to no great effect. I accept her evidence about the presence of three calendars which portrayed at least partially nude women. Her evidence in this regard is supported substantially by what Knibb, a fellow employee says in his affidavit sworn 24 December 2004 in paragraphs 24 to 30 as follows:
24. I recall that at the time Ms Lee started with the LCH LOTE project that there were some pornographic calendars in the workplace. The extent of this pornography had reduced when Commander Bacon took up her position. I believe she issued a directive that pornography be removed. Up until that time it had been a very male dominated area.
25. I recall that there was a pornographic calendar in the area of Austin Smith’s desk. It was on the left hand side from a person seated at his desk. It featured a nude woman but I cannot recall whether she was completely nude. I rarely visited his desk.
26. I recall there was another pornographic calendar near the rear door in the vicinity of Lieutenant Steve Spooner’s desk. It depicted a nude or semi nude woman but I cannot recall any further detail.
27. I noticed that there were pornographic images on some computers. At that time, the computers allowed users to access their C drives and, consequently, staff could put on their own screen savers.
28. Since then, the Department of Defence has put measures in place to prevent this. These measures do not stop emails getting through i.e. emails with images attached. However computers are now blocked from obscene or pornographic websites.
29. If a user endeavours to log on to an identified website, they will not be able to access the desired web address and as a consequence could lose internet access and the person responsible is then obliged to face disciplinary action.
30. I recall that down in the ship repair yard area one of the petty officers had a number of topless women as his screen saver. Ms Lee had access to the yard area.
While Mr Knibb agreed in cross-examination that after Commander Bacon arrived things improved, he also agreed that the women depicted on the calendars were scantily or partially clad rather than fully naked and that the screens savers and pornography on the computers became very much less observable after six months of Commander Bacon’s appointment. Although according to his evidence, it was never completely eradicated.
The First Respondent, O’Shannessy, Storey, Spooner, Donchi, Bellingham and Royan all concede that there were calendars containing semi-dressed women, or what Storey referred to as ‘swimsuit calendars’. The First Respondent’s evidence was that no nipples or pubic hair was exposed on the calendars. He also denied that there was any such calendar at or beside his work station. This evidence conflicted with what the witness Knibb had to say about a pornographic calendar in the area of Smith’s desk. In my view Knibb impressed as an independent and truthful witness. He was not a friend nor confidant of the Applicant and he did not exaggerate. In referring to the calendar with the nude woman near Smith’s desk, he appropriately conceded that he could not remember whether it was completely nude. In my view Knibb’s evidence was truthful and I accepted what he had to say.
O’Shannessy, Storey, Donchi, Spooner, Bellingham and Royan were all friends of the First Respondent and while they all gave evidence that they never saw pornographic screen savers, Royan conceded that there were jokes, photographs of nude women and sexually explicit material which formed part of emails that travelled around the workplace.
Mr Royan’s evidence was that he did not show those emails to the Applicant and on one occasion when she approached his desk when such an image was on the screen, he closed down the computer so that she could not see what was on there. I found that to be a fairly unlikely scenario.
Commander Bacon’s evidence was that she arrived in late 1999, was promoted at the end of the year 2000 and left Cairns in mid-2001, although for the last six months, she spent a good deal of her time away from the workforce in Sydney and Canberra. It is also very clear that all those in the workplace at Cairns by the year 2001 were very much aware of the Commander’s view about pornography in the workplace and would have been careful not to display such items in her presence.
Whilst Mr Knibb says that the Department of Defence has put processes in place since then to restrict the display of pornographic images on computers, I accept the evidence of the Applicant supported by what Mr Knibb had to say about the pornography that was present in the early period of the Applicant’s time in the workplace and at least to some extent it continued on. It is also corroborated by the complaints or reports that she made to her partner Mr Darrin Cross at the time. Finally I note that perhaps the most offensive piece of pornography which was the screensaver on Chief Petty Officer Richard O’Halloran’s screen displaying a close-up photograph of a penis pierced with large objects is not the subject of any evidence from Chief Petty Officer Richard O’Halloran himself. And I accepted the evidence of the Applicant on this topic. Further I accept what the Applicant said that the various items of pornography within the workplace were unwelcome and offensive to her.
Behaviour during and soon after the course
The Applicant’s evidence with respect to what occurred during and soon after the ROMAN course is set out in paragraphs 15 to 54 of her affidavit sworn 19 April 2004 as follows:
15. Apart from the pornographic images, I enjoyed my initial months (November, December 2000, January 2001) at the PBLCLO. From the beginning of February 2001 Ms Laura O’Shannessy (an ASO5 in the office) offered me a great deal and often invited me to share a ‘cuppa’ during tea breaks. I was surprised but welcoming of the friendship extended by Ms O’Shannessy.
16. During the week of 12–16 February 2001 I undertook a ROMAN (Defence financial management system) computer course. Ms O’Shannessy was responsible for my assignment to the course.
17. On the first day of the course, I was seated at the back of the training room next to the First Respondent. As I had never used the ROMAN database before, I was a little slow at logging in to it. Whilst I was logging into the database, the First Respondent offered me some advice. He then took over my keyboard and mouse to set up the screen display stating that it would then be more ‘user friendly’. In doing so he caused my screen to black out.
18. Neither the First Respondent nor the trainers were able to restore the display. The First Respondent was asked what he had been trying to do and the trainers stated they would examine it again during the tea break.
19. The First Respondent then offered to share his computer with me and the trainers advised that this appeared to be the only practical option at that stage. Whilst sharing the computer with the First Respondent, he would flick back from the database to the drawing program. On the drawing program the First Respondent typed the following statement, “Austin is a champion in the sack”. After doing this he looked at me and I replied, “Good for you”.
20. Also that day whilst at the course, the First Respondent wrote his home telephone number on my writing pad. I asked him why he did this and he stated that if I ever wanted to go out with him that I should call him. A copy of the phone number that he wrote on my writing pad is annexed to this affidavit marked “CL1”.
21. The First Respondent’s advances towards me were unsolicited and unwelcome. I had done nothing to encourage them.
22. On Tuesday 13 February 2001 I was allocated the computer that the First Respondent had previously used and he was seated at the front of the class using the trainer’s computer. At the end of the day the First Respondent and myself were obliged to call our office with a request that we be picked up. The First Respondent made the call and whilst he and myself waited out the front of the HMAS Cairns Base, the First Respondent said to me, that he would like to have sex with me.
23. I laughed at this statement and stated that there was “no way in hell that that was going to happen”. I laughed, not because I was amused by his suggestion but as a way of laughing it off and showing him that I was not at all interested in having sex with him.
24. The First Respondent then asked me “why?” I then told him that he was a “sleazebag”. I was aware that the First Respondent already had a girlfriend so that it was a situation where he was not only making unwelcome unsolicited sexual propositions but he was also making it clear that he would welcome a sexual liaison with me despite an apparent existing attachment to another woman.
25. It was apparent that the First Respondent did not appreciate my comment. He then said, “you will be sorry”. His tone of voice indicated that this comment was intended and meant to be understood as a threat. The First Respondent also stated that the transport was not coming to pick me up well – only him. He said that I “might as well start walking back to the office”.
26. I took this as a threat that he intended to deny me transport because of my rejection of his advances. I stood out by the road so that I could clearly be seen when the transport arrived. Sub Lieutenant Laura Bullock arrived shortly afterwards and drove both myself and the First Respondent back to the office.
27. I was very concerned about the threat made by the First Respondent. As a result I telephoned him that night and apologised for calling him a sleazebag. I told him that I wanted him to stop making advances towards me as I would continue rejecting these advances and this would cause tension in the workplace. He agreed to stop making the advance and also apologised to me.
28. On Wednesday 14 February 2001 the First Respondent continued to use the trainer’s computer at the front of the class. During the lunch break he apologised to me for his behaviour and said that he accepted my rejection of him. However, he said that he would continue to “perve at my ass” when I was walking.
I was offended again by this comment and I shook my head.
29. During the week of the ROMAN training course (I am unsure of the exact date) I arrived at the PBLCLO office prior to attending the HMAS Cairns Base where the course was being conducted. As I was walking in the back door, the First Respondent was driving out of the office in a work vehicle. He stopped and he then told me that he had left something in my top drawer.
30. When I went into the office and opened my top drawer, I found a yellow ‘post it’ note with a hand-written message as follows: “mmm…I think I want Austin sandwiches for lunch…(Happy face symbol) his meat between my two lovely thighs”.
31. I was very upset and offended by the clear and direct sexual references in this note. Again, I had done nothing to encourage the First Respondent to write such a note.
32. On Friday 15 February 2001 the First Respondent returned to his original computer and I was stationed at my original computer. During the day the First Respondent wrote a note on my textbook by leaning across from his desk and writing on my book of course notes, “I just ripped a hole in my jeans…I don’t have underwear on!”
33. I did not look over as was obviously intended by the First Respondent. Shortly after, he wrote on another page of my textbook, “I can touch my penis through the hole”.
34. I then noticed that the First Respondent’s penis was partly poking out of a hole in his jeans. I told him to “stop being stupid”. I was shocked by the First Respondent’s conduct and found it deeply offensive. His actions were entirely unsolicited and highly inappropriate.
35. The course finished at midday and myself and the First Respondent returned to our office.
36. By the end of the day there was skeleton staff remaining.
I recall being at the photocopier and the First Respondent was speaking on Ms O’Shannessy’s telephone which was situated near the photocopier. He called me over and stated that Ms O’Shannessy was on the phone and wanted to ask me something.
37. When I took the receiver, Ms O’Shannessy asked if I could do her a favour and drop off study books which she had left on her work desk. I asked her where she lived. Ms O’Shannessy said that she lived in town. I agreed to the request and went on to ask her which book she was after.
38. In response, Ms O’Shannessy told me that the First Respondent knew and it would probably be easier if the First Respondent got a lift with me as he could then show me where she lived. I agreed.
39. I then returned to the photocopier and continued photocopying. As I was standing by the photocopier the First Respondent came from behind me and lifted up the grey woven skirt I was wearing and pushed himself up against me as he squeezed me (sic) buttock. I responded by elbowing the First Respondent away. I told him to “cut it out” and the First Respondent walked off.
40. I went back to my desk, where the First Respondent called me by phone. He apologised for what he had just done and promised it would not happen again. I told him that if he continued with this behaviour I would not have anything to do with him.
41. On leaving the office I drove to Ms O’Shannessy’s house, directed by the First Respondent. I dropped the First Respondent off so he could give Ms O’Shannessy the books.
42. I did not attend work on 19-20 February 2001 as I was suffering from the flu. I phoned Sub Lieutenant Bullock and provided my home phone number in case my supervisor wished to speak to me.
43. On 21 February I attended an appointment with an eye specialist and, whilst on route back to my workplace, I called in at my home and was told by my mother that a man from work had called for me.
44. My mother told me that the man had a funny name and it sounded like “Often”. She wrote his number down “40503329”.
I asked her what he wanted and my mother replied that he was just calling to see how I was. I told my mother that I was going to work soon and that I would speak with him then.
45. My mother stated that I should call him as this was what she had told him she would ask me to do. Consequently, I called the number and left a message on the First Respondent’s voicemail.
46. When I arrived at work, I asked the First Respondent why he had called. He told me that he was concerned that I was distressed because of the incident where he grabbed my buttock the previous Friday afternoon. The First Respondent apologised again for his behaviour and said it would not happen again. I told him that he “better mean it this time”.
47. As I walked away, he called out, “Don’t you want to know how I got your number?” I replied, “I assume Sub Lieutenant Bullock as I gave it to you when I called in sick”. The First Respondent replied, “No, I got it from your personnel file in the resource management section”.
48. In view of the repeated acts of sexual harassment committed against me by the First Respondent, I was extremely concerned that he had obtained my personal telephone number.
I subsequently raised the matter with the Second Respondent who was employed by the Department in the same office in the position of resource manager.
49. The Second Respondent advised that only himself and the office manager Lieutenant Commander Bacon had access to the personnel information. However, I subsequently noticed a hard copy list of all staff contact details on the desk of Ms Yvonne Hitchcock when she was updating the template on her computer.
50. Between 19 Feburary–1 March 2001 my dealings with the First Respondent were limited and work related only. It appeared to me that he had finally accepted my rejection of his unwanted advances. During this period I had frequent contact with Ms O’Shannessy.
51. Ms O’Shannessy frequently asked me to share tea breaks with her and also invited me to dinner at her home (which invitation I was forced to decline because of other arrangements).
52. On 1 March 2001 all staff attended a farewell luncheon for Sub Lieutenant Bullock at the Brothers Leagues Club. After returning to work, Ms O’Shannessy asked me for a ‘cuppa’ in the tea room and whilst in the tea room she invited me to dinner at Yanni’s Greek Taverna that night saying that a few staff from work were going.
53. I declined the invitation as it was during the working week and I had a young child to look after. I told Ms O’Shannessy that I would like to get together with her but it would have to be on a weekend.
54. Later that nigh, at approximately 7:00pm, I received a telephone call from the First Respondent who asked if I was going out to dinner. I told him that I was not going. I believe that Ms O’Shannessy may have told the First Respondent of her intention to invite me to dinner at Yanni’s.
The First Respondent’s evidence on this point of time is contained in paragraphs 7 to 14 of his affidavit sworn 21 February 2006:
7. My recollection is that Cassandra Lee started at the LCH LOTE Project in late 2000. At that time I had been working in my position on the Patrol Boat Project for a month or two.
8. When I joined the section, the only two other fellow-workers who were around my age where Laura O’Shannessy and Colin Storey. Laura and Colin were living together in a relationship, and owned and were renovating an old Queenslander in McLeod Street, Cairns. At the time I was living in a townhouse at 60 Charles Street, Cairns, approximately five minutes walk from Laura and Colin’s house. The three of us formed a friendship within a couple of days of me joining that section. I had not known them previously but we gravitated together because virtually all of the rest of the people working in that section were in their later 30’s and above. The friendship with Laura and Colin included dinners regularly at their house or mine, going out to dinner regularly, and socialising together out of work hours on a regular basis. In addition, because they were renovating their house, I helped with architectural drawings and with physical assistance (Colin and I would regularly spend weekends working on practical aspects of renovation on the house).
9. When Cassandra Lee came to work at the LCW LOTE Project in late 2000, she was in her mid to late 20’s and was the only other person in that age group in addition to Colin, Laura and I. Just as Laura and Colin had gone out of their way to form a friendship with me and make me feel welcome, the three of us sought to make Cassandra welcome in the same way.
10. In addition to my relationship with Laura and Colin, we were also friends at work with Jennifer Uebel. Jennifer has a daughter Nicole who was then (and remains) a friend of mine.
11. The initial friendship with Cassandra involved Laura, Colin, Jennifer and I involving Cassandra in our discussion and gossip and socialising at work. Laura was a smoker, so on a regular basis Colin and I (and in due course Cassandra) would have a cup of coffee with Laura while she was having a smoke. On other occasions if I was having a break I would be talking to either Colin, Laura or Jennifer, and Cassandra would join in the conversation.
12. Once the office friendship was established, Cassandra then started to come down and talk to me as I was working (we were at opposite ends of the office complex). This was typically every couple of days. When she came down to talk to me she would normally sit on my desk (she is very slight, only about five feet tall) and talk to me. There were at least a couple of occasions before the dinner in early March 2001 (at which Laura, Colin, Cassandra and I were all present at Laura and Colin’s house) when my boss, Chief Christopher (known as “Henry”) Higgins had to say to Cassandra words to the effect “he’s busy, can you go back to your own section”.
13. I travelled overseas to see my girlfriend Sarah Tipple in the period from 16 March 2001 and 23 April 2001. I recall that during the period prior to that trip Cassandra did come down and sit on my desk on more than one occasion. I recall a number of conversation with Cassandra prior to me leaving to visit Sarah in the United States. Cassandra was saying things like “have a good trip”, “have fun”, “hope you have a safe trip” and similar such comments. These were all friendly conversations in which she was wishing me well on the trip.
14. Laura initiated the first invitation to Cassandra to join the three of us (Laura, Colin and myself) at dinner. It was a regular Friday night event for us to have dinner, either at Laura and Colin’s house, at my place or at a restaurant. It had been discussed between Laura, Colin and me that we should get Cassandra around for dinner to include her in our social group.
I recall that this first dinner at Laura and Colin’s place was on a Friday night in early March 2001.
Then in short evidence-in-chief on 8 November, Dr Woolridge said:
“Just by way of further bringing up to date for His Honour’s benefit, did you, given the gap between last year and the date now, have you again had an opportunity to deal with Ms Lee during the course of last week?
“Yes, I saw her on 2 November.”
“(indistinct) time to be consulting with her in a professional capacity to update your assessment of her?”
“Yes.”
“Also have you, in the lead up to today, been provided with a photocopy of the transcript of her evidence that was actually given in this hearing back in May?”
“Yes.”
“Allowing both for your perusal of that material and for your consultation with her last week, firstly, in a general sense, is there any deviation to the opinions you hitherto expressed about her diagnosis?”
“No, my diagnosis remains as it was, although there has been significant improvement in her mental state.”
“That’s really the only thing I want to now develop with you in evidence-in-chief before my friends ask you some questions. That’s where she’s at in terms of, depending on an outcome here, there could be a need to assess her future economic loss; in other words, how long she’s going to be off work, potentially losing money. So your assessment as to how soon and in what way she can be in a position to return to work?”
“Yes, well, in my opinion Ms Lee is no longer depressed. She still has symptoms of post-traumatic stress but she no longer does, if we refer to the diagnostic criteria for post-traumatic stress disorder. I think that there has been a big enough improvement in her mental state for her to begin to contemplate returning to work and I would have thought the most appropriate thing is that she undergo some form of retraining and then have a gradual return to the workplace. I think that could start more or less at any time.”
“Thankyou.”
Doctor Woolridge was cross-examined at length by counsel
Mr Murphy SC for the First Respondent and Mr Horneman-Wren counsel for the Second, Third and Fourth Respondent. Despite extensive cross-examination by both counsel, Dr Woolridge maintained his original diagnosis that the Applicant suffered post-traumatic stress disorder and chronic adjustment disorder with depressed mood.
Dr Woolridge attributed the post-traumatic stress disorder to the experience of the rape in combination with the accumulated effect of the sexual harassment over the period of months and the victimisation suffered by the Applicant in the workplace.
Mr Murphy SC in cross-examination put a number of different hypotheses about what may have caused the condition that the Applicant suffered from and Dr Woolridge indicated that he had considered the various possibilities only to dismiss them. That was particularly so in relation to the theory postulated by Dr O’Hare and referred to as ‘the incident of the infidelity’. It was put to Dr Woolridge that it was possible that the Applicant deliberately made up the story of sexual harassment to avoid the consequences of her behaviour. His response was that he postulated that only to dismiss it and further indicated that Ms Lee told him otherwise and he believed her. When cross-examined about the requirement to accept what she told him,
Dr Woolridge responded to the effect that he kept his sceptical radar up. Dr Woolridge’s evidence was also tested on the question of the Applicant’s apparent recovery at the end of October. In particular, it was suggested that from what Dr O’Hare said, the prescription of a particular anti-depressant seemed to cause the symptoms to improve. Dr Woolridge accepted that but said that the fact that the Applicant made an apparent adjustment does not mean that the symptoms from the rape could not come back at some later stage. Dr Woolridge was then further cross-examined on this issue as follows:
“Yes, what we know is that in fact there is a post-traumatic stress disorder consequent upon a traumatic event such as rape, it’s unlikely to resolve in the way that Dr O’Hare observed as we’ve just discussed in respect of that letter?”
“It’s quite possible for symptoms of post-traumatic stress disorder to fluctuate – I mean people who were in Vietnam didn’t develop symptoms for 20 or 30 years sometimes.”
It is also further instructive to note as I have earlier, that the advice given by the Applicant to Dr O’Hare and Dr Watson at the end of October was not consistent with the way in which she presented in the workplace. She was observed to be constantly weeping in the presence of WO Mena and Donchi was critical of her in that regard and for bringing her personal problems to the workplace.
Mr Horneman-Wren cross-examined Dr Woolridge at length and suggested that it was not part of the Doctor’s original diagnosis that victimisation and bullying played any part in her psychiatric illness. While Dr Woolridge did not necessarily agree with that proposition, that is, that the Applicant’s condition was not initially attributed to the bullying and victimisation in the workplace, he does concede that in the more recent interviews with her, those factors became more apparent.
Dr Woolridge’s evidence in my view is supportive of a situation where the Applicant’s condition was caused by the cumulative effect of the sexual harassment, including the rape, and was then exacerbated by the victimisation and bullying in the workplace and indeed I am satisfied that this is the case.
Conclusions
Pornography in the workplace
Paragraphs 64 – 69 hereof set out the findings with respect to pornography as alleged by the Applicant existed in the workplace and was unwelcome and offensive to the Applicant. I am satisfied that the First Respondent was responsible for the calendar of the nude female positioned near his desk. Secondly, I am satisfied that all of the Respondents were aware of or should have been aware of the said pornography and that the Second, Third and Fourth Respondents should have prevented the occurrence of the said displays of pornography. There is no dispute that the displays were caused by the employees of the Fourth Respondent in the course of their employment at their place of employment with the Fourth Respondent. I agree with the Applicant’s submission that the very presence of the material indicates a lack of commitment by the Fourth Respondent and sent a message to the workforce that accessing or displaying the material was acceptable within the workforce. I accept that it may well create an impression regarding the prevailing workplace culture and thereby diminishing the confidence in the formal complaint procedures and policies. The pornography clearly involved an ongoing act of sexual harassment of workers to whom the material was unwelcome. I am satisfied that it constitutes unlawful discrimination within the meaning of section 3 of HREOC in that it constitutes sexual harassment and sexual discrimination as prohibited by section 28A and 28B of the SDA. I further accept the Applicant’s submissions that by permitting the display of such material to be accessed and viewed by staff the section 106(2) defence cannot be made out. It is clear in this case that the training in equity and diversity was, as I have indicated, inadequate in the case of the Applicant and the presence of such material in the workplace makes it clear that there has been an obvious failure to take all reasonable steps.
Behaviour during and soon after the course
Factual findings have already been made about the First Respondent’s conduct with respect to the above matters and are detailed in paragraphs 73 – 94 hereof. Further, I accept the Applicant’s case that this amounted to unlawful discrimination by way of sexual harassment or sex discrimination by the First Respondent. Further, I accept the submissions of the Applicant that the First Respondent is liable by way of commission of his conduct and the Fourth Respondent is vicariously liable by reason of the discriminations committed by an employee of the Fourth Respondent. I refer to and repeat what I have said elsewhere in these reasons that the section 106(2) defence should be assessed rigorously with respect to the obligation to take all reasonable steps. It is clear in this case that all reasonable steps were not taken by the Commonwealth and the fact that the Applicant was given no training in equity and diversity between the period of time from 9 November 2000 through to November 2001 was a failure by the Fourth Respondent to adhere to its own training and equity and diversity regime. It may well have been the case, had the Applicant had the opportunity of attending such a course, she may well have been better equipped to deal with the earlier pornography in the workplace and by reporting those matters, it may have been that what occurred during and soon after the course could have been avoided and ultimately, the rape itself perhaps could have been avoided.
The rape
Factual findings have already been made with respect to the issues canvassed under this sub-heading and are set out in paragraphs 97 – 117 inclusive.
I accept the submissions of the Applicant that the conduct constituted by the rape of the Applicant by the First Respondent was unlawful discrimination by virtue of sexual harassment or sexual discrimination. I further accept the contention of the Applicant that the relevant connection arising from the conduct having been done in respect to a fellow employee consequent upon and in the context of contact arising out of the fact of the combined attendance of the employees at the O’Shannessy home. The liability alleged against the First Respondent follows from the commission of the conduct (the rape) and against the Commonwealth by reason of the conduct’s commission (the rape) by an employee in connection with his employment. What is at issue is whether there is relevant connection as per s.106(1).
All counsel addressed me on this issue and in effect I was helpfully referred to a number of authorities. These authorities are conveniently set out by Kiefel J in paragraphs 71 to 74 of South Pacific Resort Hotels Pty Ltd v Trainor (2005) FCAFC 130 (15 July 2005). The case itself involved sexual harassment outside of the work hours of employees in staff quarters provided by their employer. Paragraphs 71 to 74 provide as follows:
71. The question which remains is whether the conduct here could be said to have the necessary connection with Mr Anderson’s employment with the Appellant.
Leslie v Graham [2002] FCA 32 was a case similar to the present. The conduct in question occurred in an apartment made available to two employees while they attended a work-related conference. The conclusion of Branson J, that the employer was vicariously liable, is in my respectful view clearly correct when regard is had to s 106(1). The situation in which they were placed, which provided opportunity for the conduct, arose in connection with the work-related activities.
In relation to conduct which occurs in a location away from the actual workplace, two further cases are instructive of the approach which should be taken. In Smith v Christchurch Press Company Ltd [2001] 1 NZLR 407, the conduct occurred at lunchtime away from the workplace. The Court of Appeal held that the sexual harassment was “in the course of employment” because it was between two present employees, arose out of a work situation and had the potential to adversely affect the working environment. The latter observation is of particular interest. It would seem logical to say that if it could be seen to have this effect, the necessary connection was present. Further, in Chief Constable of the Lincolnshire Police v Stubbs [1999] IRLR 81 the Employment Appeal Tribunal held that a police officer was acting in the course of his employment, within the meaning of
s 41(1) of the Sex Discrimination Act 1975 (UK), when he subjected a colleague to sexual harassment although the incidents occurred at social events away from the police station. They were regarded as extensions of the workplace. Morrison J(P) observed that it would have been different if the acts had occurred during a chance meeting between the two police officers at a supermarket, but these were social gatherings of work colleagues.
Each case will turn on its facts and it may be that it is difficult to draw the line in some cases. This is not such a case. The conduct in question occurred between two employees in accommodation provided by the employer as an incident of employment. The employees’ rooms were in close proximity to each other and they were accessible. These conditions in part created an opportunity in which the conduct could occur. It does not assist the Appellant that the first occasion occurred in the early hours of the morning. The conditions created in connection with the employment allowed for it to occur at any time. The second incident additionally followed upon a staff function, at which Mr Anderson consumed alcohol. The conduct in these circumstances on each occasion occurred in connection with Mr Anderson’s employment.
In the present case there are a number of similarities, as is submitted by the Applicant’s counsel, to the facts referred to by Kiefel J in Smith v Christchurch Press Company Ltd [2001] 1 NZLR 407. In that case, the conduct occurred in lunchtime away from the work place and the Court of Appeal held that the sexual harassment was in the course of employment because it was between two present employees and arose out of the work situation and had the potential to adversely affect the working environment. In the present case, the rape occurred between two current employees and in my view it arose out of a work situation. The Applicant was invited to attend after-work drinks by a fellow employee and indeed the invitation was issued at the behest of the First Respondent. Further, the rape itself was the culmination of a series of sexual harassments that took place in the workplace and would not have occurred but for the collusion of Storey and O’Shannessy, two fellow employees who made concerted efforts over a period of time to make arrangements for the Applicant and the First Respondent to attend dinner at their residence. The Applicant’s attendance was clearly because of the original after-work drinks invitation and it was likely that the invitation was provided in that form to ensure the Applicant’s attendance. There is no doubt that it not only had the potential to adversely affect the working environment but it did so (the ‘toxic workplace’ as referred to by McLeod).
In Chief Constable of the Lincolnshire Police v Stubbs [1999] IRLR 81 there are also similarities to the present case. As submitted by the Applicant’s counsel in that case, the present incident of sexual harassment occurred in a social setting away from the workplace involving work colleagues. The distinguishing characteristic noted by Morrison J(P) of a chance meeting has no application in this case. As I have already indicated, the planning to arrange for the Applicant to attend at the O’Shannessy residence was carefully arranged between the First Respondent, O’Shannessy and Storey. It was certainly no chance meeting. That case also dealt with similar provision in the United Kingdom Sex Discrimination Act 1975. The Employment Appeal Tribunal in that matter quoted relevant passages from the decision of the Industrial Tribunal against which the appeal had been lodged, including its final summary in the vicarious liability issue:
“In our judgment, these incidents were connected to work and the workplace. They would not have happened but for the Applicant’s work. Work related social functions are an extension of employment and we can see no reason to restrict the course of employment to merely what goes on in the workplace.”
Both the cases that I have referred to involve consideration of whether the relevant conduct would be characterised as arising ‘in the course of’, not ‘in connection with’, employment. I further agree with the submissions of the Applicant that in this context it is relevant to bear in mind the comment in the joint judgment of Black CJ and Tamberlin J in South Pacific Resort Hotels Pty Ltd v Trainor (2005) FCAFC 130 (15 July 2005) at 42:
“We add that the expression chosen by parliament to impose vicarious liability for sexual harassment would seem, on its face, to be somewhat wider that the familiar expression ‘in the course of’ used with reference to employment in cases that vicarious liability at common law or in the distinctive context of worker’s compensation statutes.”
The Court went on to say in conclusion on the vicarious liability issue
“the expression ‘in connection with’ in its context in s106(1) of Sex Discrimination Act 1984 (Cth) is a broad one of practical application and, as in Leslie v Graham [2002] FCA 32 the facts here point readily to the conclusion that Mr Anderson’s conduct in the staff accommodation was ‘in connection with’ his employment within the meaning of s 106(1) SDA.”
In determining the issue of the application of s106(1) of the Sex Discrimination Act 1984 (Cth) to the incident of rape, I am satisfied that particular regard should be given to the factors I have previously indicated - that the rape was the culmination of the earlier incidents of sexual harassment directly in the workplace. Consequently I accept the submissions of the Applicant’s counsel that the First Respondent’s conduct was an extension or continuation of his pattern of behaviour that had started and continued to develop in the workplace he shared with the Applicant. The nexus with the workplace was not broken.
It is well established by authority that the approach to human rights legislation should be given a broad interpretation, as articulated by Kiefel J in paragraph 70 of South Pacific Resort Hotels Pty Ltd v Trainor:
“In my view, no narrow approach to the operation of s 106(1) is warranted. It is consonant with its purpose to read the words “in connection with the employment of the employee” as requiring that the unlawful acts in question be in someway related to or associated with the employment. Once this is established it is for the employer to show that all reasonable steps were taken to prevent the conduct occurring, if they are to escape liability under s 106(2). In this way the aim of the SDA, to eliminate sexual discrimination in the workplace, might be achieved.
In Waters v The Public Transport Corporation (1991) 173 CLR 349, the High Court said “Given the legislation should receive a generous construction” per Dawson and Toohey JJ and “Anti-discrimination legislation should be liberally construed” per Brennan J. Further, in X v State of Tasmania [1994] HREOCA 15 (8 July 1994), Waters Case was cited with approval by Sir Ronald Wilson, President of the Human Rights and Equal Opportunity Commission “in the case of legislation which protects or enforces human rights, it is of particular importance that the provisions of the Act be read in the light of its statutory objects”. Those quotes are set out at paragraphs five and six of the Applicant’s supplement to oral submissions.
In all the circumstances of this matter and having regard to the relevant authorities, I am satisfied that the Fourth Respondent is vicariously liable in respect of the incident of rape. I also agree with the submissions of the Applicant’s counsel that the s.106(2) defence should be assessed rigorously with respect to the obligation to take “all reasonable steps”. It is clear in this case that all reasonable steps were not taken by the Commonwealth. While there are detailed, comprehensive and appropriate equity and diversity provisions in place it is clear in this case that they were not adhered to. The Applicant was given no training during the period of time from 9 November 2000 when she was first employed through to November 2001 (even on the best case put forward by the Respondents). Had she received training, she may well have been better equipped to deal with the earlier sexual harassments by reporting the incidents. This might have ultimately have avoided the situation that arose with respect to the rape. Further, it is clear that the Commonwealth’s failure to take all reasonable steps to prevent the lead up sexual harassment which took place at the ROMAN course and following is itself a failure to take all reasonable steps to prevent the rape. In my view the defence must fail.
Smith’s behaviour subsequent to rape
Factual findings have already been made about the First Respondent’s conduct with respect to the above matters and are set out in paragraph’s 121 – 142. Further, I accepted the Applicant’s case is that the First Respondent was responsible for the unlawful discrimination by way of sexual harassment or sex discrimination. Further, I accept the submissions of the Applicant that the First Respondent is liable by way of commission of his conduct and the Commonwealth is vicariously liable by reason of the discriminations committed by an employee of the Fourth Respondent. For the reasons already canvassed elsewhere in the judgment I am satisfied that the Commonwealth’s failed to take all reasonable steps to prevent the offence and the defence must fail.
Victimisation
The findings contained in paragraphs 146 – 190 hereof clearly indicate that the Second and Third Respondent have bullied and victimised the Applicant. I agree with the Applicant’s submission that victimisation is an offence under s.94 of the Sex Discrimination Act 1984 (Cth) and is specifically included in the definition of unlawful discrimination in s.3 of the Human Rights and Equal Opportunity Commission Act 1986 (Cth). Further, I am satisfied that the Second and Third Respondents are liable for sex discrimination by way of commission of the conduct (of victimisation) and further the Fourth Respondent is liable by way of commission of the conduct by its employees in accordance with the common law concept of vicarious liability and agency.
Further, I accept and adopt the submissions of counsel for the Applicant set out in paragraphs 61 – 66 of his supplement to oral submissions as follows:
61. The Fourth Respondent argues that it is not vicariously liable in respect of acts of victimisation by its employees or agents pursuant to s.106(1) SDA. The argument relies on a literal construction of s.106(1) SDA as victimisation under s.94 SDA is contained in part III SDA which is not referred to in s.106 SDA.
62. It is suggested that there is no other basis for finding the Commonwealth vicariously liable. This exact issue was considered in the context of an application for summary dismissal brought by the Commonwealth in Taylor v Morrison & Ors [2003] FMCA 79 (12 March 2003).
63. Paragraph 16 of the decision of Phipps FM encapsulates arguments relevant on this point.
64. It is submitted that there is clearly scope for the Fourth Respondent to be vicariously liable on ordinary common law principles, particularly in the light of the combined operation of ss.56 and 64 Judiciary Act 1903 and the authorities cited by Phipps FM.
65. In relation to the argument discussed in Phipps FM’s decision regarding the operation of s.110 SDA, it is respectfully submitted that it does not exclude vicarious liability with respect to victimisation under s.94. This is because it is effectively redundant following the April 2000 amendments. Since these amendments, s.46 HREOC has come into force. The definition of ‘unlawful discrimination’ specifically includes a right to pursue a claim in respect of victimisation.
66. There appears to be no logical reason as to why vicarious liability for victimisation should be excluded. Prohibiting victimisation is clearly intended to protect victims of sexual harassment or sex discrimination when making a complaint. Excluding vicarious liability for acts of victimisation would be likely to diminish the protection and practical availability of a remedy for victimisation. This could hardly be said to be conducive to the attainment of the objects of the SDA, bearing in mind what has already been said earlier regarding the correct approach to the interpretation and application of the SDA.
And I note that Mr Horneman-Wren for the Second, Third and Fourth Respondent did not pursue his opposition to those contentions.
I am satisfied that in the circumstances of the findings contained in paragraphs 146 – 190 that the acts of victimisation related to conduct by the Second and Third Respondents who held supervisory or management positions in respect of the Applicant and conduct by other employees with whom she had contact. Further, it is clear that the Second and Third Respondents had ostensible authority to behave in the manner outlined in the evidence and under general common law agency principles, they had authority to bind their principal, the Fourth Respondent. I am satisfied as is submitted by the Applicant’s counsel that the Fourth Respondent is vicariously liable for the acts of victimisation either on the basis of ordinary common law concepts relating to vicarious liability for the acts of an employee arising in the course of their employment or on the basis of primary responsibility of a principal for the conduct of an agent giving ostensible authority to bind the principal. It is clear that the victimisation followed on the context of the general background referred to in paragraph 157.
Liability
Consistent with the above findings, the First Respondent was clearly liable for the sexual harassment leading up to the rape - the rape itself and the harassment following the rape. The Fourth Respondent was vicariously liable for all of those aspects of the Applicant’s claim. Further, the Second and Third Respondents are liable for the victimisation of the Applicant and again, the Fourth Respondent is vicariously liable for that aspect. I agree with the submissions of counsel for the Applicant, that the Second, Third and Fourth Respondent must take the Applicant as they find her, (that is, as a person who has been sexually harassed and raped). It was clear that the Applciant’s health had suffered accordingly and I am satisfied that the victimisation exacerbated the Applicant’s initial injury inflicted by the First Respondent’s sexual harassement and rape. I am further satisfied that the First Respondent should be liable for that further injury or exacerbation of the initial injury caused by the victimisation. In my view the damage suffered by the Applicant by virtue of the victimisation and its consequences was foreseeable by the First Respondent given the culture and behaviour of those in the naval workplace as outlined during the course of these reasons. It is my view that it was clearly a foreseeable consequence of the First Respondent’s sexual harassment of the Applicant and consequently I propose to order that the First, Second, Third and Fourth Respondents be jointly liable for all of the damages suffered by the Applicant.
The remedy
I agree with the submissions of the Applicant’s counsel that this matter involved very significant pain, suffering, hurt and humiliation to the Applicant. It was clear that the Applicant has suffered for the last five or six years and in effect, has been deprived of the enjoyment of life and its ordinary pleasures during that time. She has been unable to work or enjoy a relationship with her partner, Darrin Cross and as a consequence, that relationship ended. The social functioning with her son and other members of her family has been markedly impaired. Further, she has suffered fear and has been at times, suicidal. Furthermore, I accept the evidence given by Darrin Cross as to the effects on her behaviour prior to their separation in 2005 and the effects as described by the Applicant herself in her affidavit dated 5 January 2005. In my view, the sum of $100 000.00 is a relatively modest amount of compensation taking into account the Applicant’s hurt and humiliation, pain and suffering. I have not provided a break up of the damage caused as a result of the various aspects of the Applicant’s claim. It seems clear that the substantial injury and damage was caused by the sexual harassment culminating in the rape and that it was made worse by the victimisation that the Applicant suffered because of her complaint that the First Respondent sexually assaulted her. Accordingly, I propose to order that all four Respondents be jointly responsible for the payment of that amount.
Otherwise I propose to adjourn the further hearing of the Application to a date to be fixed for further submissions with respect to the following:
a)An order that the Commonwealth of Australia forthwith reemploy the Applicant other than in the Department of Defence and what effect such an order will have for reemployment of Applicant in practical terms.
b)The issue of economic loss including future economic loss, superannuation and medical costs;
c)An order that the Respondents apologise;
d)The issue of interest;
e)The issue of costs.
I certify that the preceding two hundred and sixteen (216) paragraphs are a true copy of the reasons for judgment of Connolly FM
Associate: Deborah Rea
Date: 23 March 2007
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