McCauley v Club Resort Holdings Pty Ltd (No 2)
[2013] QCAT 243
| CITATION: | McCauley v Club Resort Holdings Pty Ltd (No 2) [2013] QCAT 243 |
| PARTIES: | Robyn Louise McCauley (Complainant) |
| V | |
| Club Resort Holdings Pty Ltd (First Respondent) Stephen Barrington (Second Respondent) Danielle Briggs (Third Respondent) Michelle Haynes (Fourth Respondent) David Callaghan (Fifth Respondent) |
| APPLICATION NUMBER: | ADL047-11 |
| MATTER TYPE: | Anti-discrimination matters |
| HEARING DATE: | 25 and 26 February 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Jeremy Gordon, member |
| DELIVERED ON: | 13 May 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The name of the second Respondent is changed to Stephen Barrington. 2. Stephen Barrington sexually harassed Robyn McCauley and discriminated against her on the basis of sex and age, and is ordered to pay compensation to her of $4,500. 3. Club Resort Holdings Pty Ltd is vicariously liable in respect of the sexual harassment and discrimination on the basis of sex and age and is ordered to pay compensation to Robyn McCauley of $35,490 subject to any payments to Centrelink required by the Social Security Act 1991. 4. The monetary awards are inclusive and the total amount that Robyn McCauley may recover is $35,490. 5. Robyn McCauley’s claim for victimisation and the claims against the other Respondents are dismissed. |
| CATCHWORDS: | ANTI-DISCRIMINATION – SEXUAL HARASSMENT – DIRECT SEX AND AGE DISCRIMINATION – VICTIMISATION - whether Queensland Industrial Relations Commission decision is binding by issue estoppel or res judicata – whether part of claim an abuse of process – whether claim proved – when inferences are properly reached – whether common law test of remoteness applies – correct test for causation – correct level of compensation – whether WorkCover permanent impairment lump sum should be deducted – whether differential awards can be made where there is vicarious liability – whether interest should be added to award for non-financial loss Anti-Discrimination Act 1991 ss 10, 11, 119, 120, 130, 132, 133, 204, 205, 208, 209 Briginshaw v Briginshaw (1938) 60 CLR 336 |
APPEARANCES and REPRESENTATION (if any):
Complainant: Mr Adam Taylor (solicitor from Turner Freeman Lawyers)
Respondent: Mr John Dwyer (counsel instructed by M+K Lawyers)
REASONS FOR DECISION
Over a three day period in March 2010, Robyn McCauley was sexually harassed by Stephen Barrington in the cold room of the kitchen area of the Royal Pines Resort. This was also direct discrimination.
Upon her complaint, a bungled investigation was conducted by her employers. Contrary to the evidence then reasonably available, the employers found her allegations to be “unsubstantiated”. As a result of this she felt undermined and unsupported.
The combination of the sexual harassment and the mishandling of her complaint caused her to suffer psychiatric injury. She was off work sick for nearly three months. She then returned to work for six weeks but was unable to continue and went off sick again.
She remained off work for an extended period and eventually decided not to return to work for this employer and instead to undergo a period of study with a view to changing her career. She claims lost earnings for the whole of this time off work and into the future.
Over the first period she was off work she made a successful claim for WorkCover compensation and as part of this she received a lump sum for permanent impairment caused by the sexual harassment. There is an issue whether this should be deducted from her award in this claim.
When she went off sick the second time she made another claim for WorkCover compensation but this was unsuccessful. She appealed to the Queensland Industrial Relations Commission (QIRC) against this decision. There is an issue whether the findings of the Commission are binding upon me in this claim.
The First Respondent is sued as Mr Barrington’s employer. However the employer argues that it is not liable because it took all reasonable steps to prevent the events complained of.
It is appropriate to make different awards against Mr Barrington and against the First Respondent. The question arises whether there is power to do this under the Act.
The Complainant’s claim in detail
Ms McCauley claims that she was sexually harassed by Mr Barrington when, on several occasions between 4 and 6 March 2010, he:-
(a)made comments that she smelt like “Old Spice”;
(b)stated that he knew Old Spice when he smelt it and that he knew what it was because he had been given some by his grandfather once who had since passed away;
(c)asked whether anyone else could smell it;
(d)sniffed the air when in her vicinity;
(e)referred to her as a cougar and making growling noises;
(f)leaned close to her when sniffing the air, and growled in her ear and around her neck;
and also when on 6 March 2010 he asked her for one last growl before she went.
These events are also said to be acts of direct discrimination on the basis of sex and on the basis of age.
The following acts are said to be victimisation[1] by one or more of the Respondents:-
(a)failing to carry out an adequate investigation of her complaint of sexual harassment;
(b)failing to find that her complaint was proved;
(c)on or about 3 June 2010 requiring Ms McCauley to conduct contract negotiations with a human resources manager despite her known lack of trust in that manager;
(d)on or about 3 June 2010 disciplining and/or counselling Ms McCauley for talking to colleagues in a certain manner about the progress of her claim of sexual harassment;
(e)on or about 11 July 2010 (which ought to be 14 July 2010) subjecting Ms McCauley to unwarranted disciplinary action for not giving sufficient notice that she was not going to attend work due to sickness;
(f)on or about 20 July 2010 disciplining and/or counselling Ms McCauley for failing to perform her duties.
[1] these are taken from the original complaint on referral to QCAT and the written final submissions submitted on the Complainant’s behalf
In the original complaints on referral to QCAT the following acts were also said to amount to victimisation but in final submissions made on behalf of Ms McCauley they have been expressly withdrawn:-
(a)rostering Ms McCauley to work in the banquets area of the restaurant when she did not have a correctly fitting uniform which she required to work in that area; and
(b)opposing Ms McCauley’s first and second applications for worker’s compensation for the sexual harassment.
There was also a direct and indirect discrimination claim on the basis of impairment but these claims were not pursued.
The law
Sexual harassment is defined in section 119 of the Anti-Discrimination Act 1991. There are two tests which must be satisfied before there can be a finding of sexual harassment. The first is that (ignoring anything not relevant to these proceedings) a person subjects another to an unsolicited act of physical intimacy, or makes a remark with sexual connotations relating to the other person, or engages in any other unwelcome conduct of a sexual nature in relation to the other person.
The second test which must be satisfied is that the conduct is done with the intention of offending, humiliating or intimidating the other person, or in circumstances where a reasonable person would have anticipated the possibility that the other person would be offended, humiliated or intimidated by the conduct. Section 120 defines the circumstances relevant to this second test and includes the sex or age of the complainant.
Direct discrimination is defined in section 10 of the Act. It occurs when, on the basis of an attribute (in this case sex or age) a person treats another less favourably than another person is or would be treated without the attribute in circumstances that are the same or not materially different. The test is therefore comparative. The Tribunal is comparing different treatment of two individuals in substantially the same circumstances – where one individual has the attribute and the other does not. The words “would be treated” indicate that the comparison can be between the complainant and a hypothetical person.
Victimisation is defined in section 130 of the Act. It occurs (relevant to these proceedings) when somebody treats another detrimentally because that person has made a complaint of discrimination.
The First Respondent, as the employer of the alleged perpetrator of the acts complained of, relies on the “reasonable steps” defence to avoid being jointly and severally liable for the acts of the perpetrator (under the principal of vicarious liability). This defence in section 133(2) of the Act and requires proof by an employer on the balance of probabilities that it took reasonable steps to prevent the employee contravening the Act.
The burden and standard of proof
There are statutory provisions which apply. Section 204 of the Act requires a complainant to prove a contravention of the Act on the balance of probabilities.
By section 133(2) an employer seeking to rely on the defence that it took reasonable steps to prevent a worker contravening the Act has the burden of proving this.
It has been said that in discrimination claims when considering the balance of probabilities the test in Briginshaw v Briginshaw should be applied. This requires that the decision-maker must be ‘reasonably satisfied’, or ‘feel an actual persuasion’ or feel ‘comfortably satisfied’ they have reached a correct and just conclusion.[2] This is not a third standard of proof, but merely means that a decision maker must proceed with caution at arriving at a state of satisfaction because of the seriousness of the allegations made in a discrimination case.[3] I approach this matter in this way.
[2] Briginshaw v Briginshaw (1938) 60 CLR 336 at 361.
[3] Full Court of the Federal Court in Victoria v Macedonian Teachers’ Association of Victoria Inc. [1999] FCA 1287 at [15].
The reaching of inferences
In the victimisation claim I am invited to infer from the primary facts that Ms McCauley was victimised that is, treated detrimentally because of her complaint of sexual harassment. It is said on Ms McCauley’s behalf that there are a number of things which happened in this case which remain unexplained. In particular, the investigation was incomplete and the finding was against the weight of the evidence. It is said that this was because her employer did not want to treat her complaint seriously and was looking for a way to “save face” or to deter Ms McCauley from pursuing her complaint. Then when Ms McCauley returned to work, and after it became clear she would not drop her complaint, her life was made difficult by being deliberately targeted for discipline by or at the instigation of the Human Resources manager, without proper interview processes being carried out.
It is submitted on Ms McCauley’s behalf that for all these things there may either an innocent explanation or alternatively the employers had an “agenda”. It is submitted that the employers have not provided any or any adequate explanation, therefore because of the strength of the matters which remain unexplained I should infer that the explanation is the agenda which was therefore victimisation.
Because of the importance of this matter in this case, I need to consider when it is right to reach such an inference in a discrimination case under the Act where there is no good explanation for events which might be discriminatory. In this respect I am mindful that unlike in some other jurisdictions, in Queensland the burden of proof does not shift by statute to a respondent to show that there was no discrimination whatsoever once the complainant has established a prima facie case.
In jurisdictions where the burden does shift in this way, then if there are events which if left unexplained could cause a court or tribunal to infer that discrimination had occurred, the court or tribunal would look to the respondent to provide an explanation. If no explanation is forthcoming, or an explanation is given which is not accepted by the decision maker, then the likelihood is that the respondent will be unable to prove that there was no discrimination whatsoever and the complainant will succeed.
It is notable that in regimes with a statutory shifting of the burden of proof there is a two stage process in decision making. Firstly, has the complainant proved a prima facie case? Then if so, has the respondent proved that there was no discrimination whatsoever?
At first instance in Department of Health v Arumugam [1988] VR 319 the Equal Opportunity Board seemed to apply a similar two stage process in a regime where there was no statutory shifting of the burden of proof but where the complainant had the full burden. On review in the Victorian Supreme Court it was argued that in doing so, the Board had reversed the burden of proof. In that case Dr Arumugam had been overlooked for a post as hospital Psychiatrist Superintendant. The Board decided that the primary facts were sufficient to indicate that some discrimination had occurred in the decision made by the appointing panel, and so looked to the respondent to explain why the apparently discriminatory decision had been made. On appeal, Fullagar J decided this was the wrong approach. The way it was put by His Honour was as follows:-
If all that is proved, by inference or otherwise, in the absence of explanation, is less than all the elements of proof required for the complaint to succeed, neither a total absence of explanation nor a non-acceptance of an explanation can by itself provide an element of proof required. It can enable already available inferences to be drawn against dishonest explainers with greater certainty, but that is all. In the present case, the element of “on the ground of race” was, in the absence of explanation, clearly lacking, and the non-acceptance of the proffered explanation could not provide the missing element. The fact that the occurrence of racial discrimination may often be difficult to prove cannot justify "convicting" on something less than proof.
Since Fullagar J also found that the evidence was insufficient to support the Board’s finding that discrimination had occurred in the absence of an explanation, the finding of discrimination had to be set aside.
It has been said that Arumugam’s case is authority for the proposition that no inference of discrimination should be reached from the failure of the respondent to provide any explanation for behaviour which might appear in the absence of an explanation to be discriminatory.
However, in State of Victoria v McKenna [1999] VSC 310, Smith J whilst accepting the proposition that the absence of an explanation or rejection of an explanation could not fill an evidentiary or inferential gap concluded[4] that:-
If, after an analysis of the proven facts, the initial inference of racial discrimination remains open and the innocent explanations offered are rejected, it is not clear to me why the inference should not normally be drawn.
[4] paragraph [42].
Fryberg J in the Supreme Court in Queensland in Lightning Bolt Co Pty Ltd v Skinner & Anor [2002] QSC 62 was prepared to accept that if all that is proved, by inference or otherwise, is less than all the elements of proof required for the complaint to succeed, neither a total absence of explanation nor a non-acceptance of an explanation can by itself provide an element of the proof required.
To my mind these cases make it clear that when the complainant bears the burden of proof the correct decision making process is a one stage process. It is not the two stage process appropriate where there is a statutory shifting of the burden. In the one stage process, if the primary facts are sufficient (directly or by legitimate inference) to indicate that discrimination has occurred then that is the end of the matter. If not, then equally that is the end of the matter.
As for when it is appropriate to reach an inference, in Comcare v O’Connell [2013] FCA 111 Jagot J discussed this in the context of a negligence case in paragraph [29]:-
In Holloway v McFeeters (1956) 94 CLR 470 the issue was whether negligence could be found in circumstances where the evidence was consistent with a number of hypotheses only one or some of which involved negligence. In this context, negligence could not be found because hypothesis is not inference, an inference being “the most probable deduction from the established facts” (at 477). In Tisdall v Webber (2011) 193 FCR 260 at [126] Buchanan J made the same point, albeit in a different context, that inference involves legitimate deduction and not mere speculation, guesswork or assumption. These decisions focus on the need for evidence from which facts may be found or inferred. If there is no such evidence from which facts may be found or inferred (inference involving rational deduction and not speculation) then, no doubt, the fact may not be found.
It is provided in section 204 that the complainant has the burden of proof. Necessarily this means that it should be more difficult for a complainant to prove a discrimination case than where there is a statutory shifting of the burden. This is achieved by requiring rational deduction to support the inference that discrimination has occurred and not mere speculation, guesswork or assumption that this is so. This is a greater burden on the complainant than would be required to prove a prima facie case in jurisdictions where the burden would then shift.[5]
[5] in England a prima facie case is proved if the tribunal could in the absence of an explanation find that there had been discrimination – section 136 Equality Act 2010.
It is clear that the quality of the respondent’s explanation if proffered can be considered by the decision maker. As Fullagar J said in the above passage in Arumugam, if an explanation is proffered but found to be dishonest, then this might allow an inference to be reached from the primary facts with greater certainty.
Where no reasonable respondent would have acted in the way which is said to be discriminatory, then it would be open to the Tribunal to infer there was discrimination in the absence of a proven innocent explanation.[6]
[6] Smith J in State of Victoria v McKenna [1999] VSC 310 at [43].
And of course where the evidence shows that the more probable explanation for the events is an innocent one and not discriminatory, then there is no room for an inference that discrimination has occurred.
It is also clear that if a respondent does not call a witness (without good reason) who would appear to be able to provide an explanation for events which if not explained might lead to the view that discrimination had occurred, this could result in a adverse inference being made. This accords with the High Court case of Jones v Dunkel [1959] 101 CLR 298 relied on by Mr Taylor on Ms McCauley’s behalf.
There are other ways, other than not calling an important witness, in which a respondent might fail to provide an explanation for events which if unexplained, might result in a finding that there had been discrimination. It may be that a witness who should be able to give such explanation is called to give evidence, but does not give an explanation in evidence in chief. A further possibility which quite often occurs, is that the respondent does not provide disclosure of documents which might demonstrate an explanation for events which have occurred.
A respondent takes a risk in failing to provide an explanation. But the intention of the Act is achieved by applying the test in Comcare so that the court or tribunal is unable to make a finding of discrimination unless satisfied by rational deduction and more than mere speculation, guesswork or assumption, that discrimination has occurred.
Finally I am mindful of s 208 of the Act which provides that QCAT is not bound by the rules of evidence and that it must have regard to the reasons for the enactment of this Act as stated in the preamble,[7] and may draw conclusions of fact from or adopt the findings of, a court or tribunal in other proceedings.
[7] which in this case is the protection of people from unfair discrimination and from sexual harassment.
The basic facts
Ms McCauley started as a food and beverage attendant with the First Respondent as a casual employee in December 2006. From 25 September 2008 she was employed on a “permanent casual basis”. From 4 July 2010 she was given a new contract under which she became a permanent employee on a flexible part-time basis although there may have been a delay in this contract coming into effect.
In her work, Ms McCauley ran the buffet in the Kalinda Restaurant in the RACV Royal Pines Resort, Ross Street, in Benowa, Queensland.
In early March 2010 the resort was getting ready to host the Australian Ladies Masters Golf tournament. It was a busy time in the kitchen. A number of people including Ms McCauley, were working in the cold larder preparing food and carrying out other such tasks.
Ms McCauley worked there for three shifts on 4, 5 and 6 March 2010 being a Thursday, Friday and Saturday. For convenience I refer to these days as day one, two and three. Over that time Stephen Barrington the Second Respondent who was a fellow employee was also working there. He was a chef.
The incidents of sexual harassment
On my findings, on day one at about 7am which was about an hour and a half after the start of the shift that day, Mr Barrington was working close to Ms McCauley. There was a perfume smell in the air and Mr Barrington commented about it to Ms McCauley. They discussed together where the smell might be coming from. Then Mr Barrington leaned towards Ms McCauley and, sniffing in the air, said “it smells like Old Spice to me .. yes it is definitely Old Spice .. I know the smell of Old Spice because I have been given some by my grandfather who has since passed away”. In doing this and sniffing the air around Ms McCauley, Mr Barrington was indicating that she smelt like Old Spice.
For Mr Barrington this was a joke. He continued with that theme during that day and for the next two days when he happened to be working near Ms McCauley or passing near her.
He would sniff the air around Ms McCauley and say such things as “Oh I can still smell it .. there is that Old Spice smell again” or “you smell like Old Spice”. This happened about four or five times on each of the three days that she worked in the kitchen.
On some of these occasions Mr Barrington would ask or pretend to ask, others also working in the cold room, while sniffing the air around Ms McCauley, if they could also smell Old Spice.
After a while, Mr Barrington started to make growling noises at Ms McCauley. On at least one occasion, Mr Barrington explained to her that he was making growling noises because she was a “bit of a cougar”. As time progressed over the three days, the growling noises became more frequent than the Old Spice comments, and Mr Barrington started when making these noises to lean towards her and make them in close proximity to her neck and ear.
Whilst at first Ms McCauley was willing to put up with Mr Barrington’s behaviour, she did not encourage it. She tried to ignore it and to carry on with her work. She shied away or turned away from him and she thought she had demonstrated her discomfort by doing so. On my findings, Mr Barrington was not aware that Ms McCauley was reacting to his behaviour in this way. He was insensitive to her reaction.
On the first day after he had started to make growling noises at her she said to him that what he was doing was unnatural, that she was old enough to be his mother and that she found what he was doing to be disgusting. Mr Barrington replied that there was nothing to be worried about because he was a happily married man. Again, Ms McCauley thought at that time that she had made it clear to Mr Barrington that his actions were unwanted. However, he did not realise this because of his lack of sensitivity to her reaction.
For this reason, Mr Barrington did not stop. There were other occasions when Ms McCauley tried in vain to admonish Mr Barrington for his behaviour. Since this was not having the desired effect, she expressed her disapproval more strongly.
On one occasion which on the balance of probabilities I find to be the third day, when Mr Barrington was continuing his behaviour, Ms McCauley told him that he really was an arsehole and that he should back off and fuck off. On this occasion, it was clearer to him that his behaviour was unwelcome and he apologised, but this did not stop his behaviour altogether.
At the end of Ms McCauley’s shift on the third day Mr Barrington said to her “come on give us one last growl before you go”. Ms McCauley responded in exasperation.
I turn now to Mr Barrington’s intention in behaving in this way and Ms McCauley’s understanding of his behaviour. Mr Barrington says that at the time there was no particular meaning attached to the words “Old Spice”. And Ms McCauley did not think so either. In hindsight Ms McCauley thinks that Mr Barrington might have stretched the word “old” when saying that word and it may have been a reference to her age (at that time 49 years old) but she did not think this at the time. She also had some other theories as to what the reference to Old Spice might have meant,[8] but she was not sure about this.
[8] referred to in the findings of 26 March 2010 following the investigation in DRB-2.
Ms McCauley was unhappy with Mr Barrington sniffing the air about her, since she regarded this as an invasion of her personal space. She was also unhappy when Mr Barrington involved others or pretended to ask others while sniffing the air around her, if they could smell Old Spice. She regarded this as a joke at her expense.
Both Mr Barrington and Ms McCauley were aware at the time that the word “cougar” was used in slang to mean an older woman who was keen to have sex with a much younger man. Both of them understood that the growling was also a reference to the same concept because it was supposed to be the noise of a cougar.
Findings on sexual harassment claim
In making the findings of fact set out above, I am accepting the evidence of Ms McCauley. I found her to be a very straightforward and honest witness.
As for Mr Barrington’s evidence, it is significant that in a statutory declaration made very soon after these events, he admitted some things but did not deal fully with all the allegations being made by Ms McCauley. So he neither admitted nor denied these other allegations in his statutory declaration. This happened for reasons which I need to turn to later. But it means that in substance therefore, the only difference at that time between his version of events and Ms McCauley’s is that Mr Barrington says he did not realise that Ms McCauley was upset about his behaviour. In his affidavit filed in these proceedings, made some three years after the event, he did expressly deny some of Ms McCauley’s allegations. However, when giving evidence, he accepted, or at least accepted the possibility of, some of these that he had previously denied. His evidence was not consistent, therefore. I regard it as much less reliable than Ms McCauley’s evidence.
I also consider that Ms McCauley’s recollection of events is likely to be much better than Mr Barrington’s and of the other witnesses called by the Respondents because of the upset caused to her. The events have stuck with her. She remembers them clearly and she has very largely been consistent in her recollection of them.
In any case there was a fair amount of corroboration for Ms McCauley’s version of events. In this respect I disagree with submissions made on the Respondents’ behalf there was not.
It is also said that those people who Ms McCauley says should have witnessed these things did not notice them happening. The explanation for this is that everyone was working in a busy noisy kitchen and were very busy with their own things to do. There is evidence that general banter and strong language was not unusual in this environment. These things, plus in some cases the passage of time, blurring the ability of the witnesses to recall, explains the lack of corroboration from those also working in the kitchen.
For example, Ms McCauley says that Danielle Briggs the Human Resources Manager at the Resort was on the other side of the workbench when she said to Mr Barrington that his behaviour was unnatural and that she was old enough to be his mother, to which Mr Barrington responded you have nothing to worry about I’m a happily married man. If Ms Briggs overheard this exchange I do not think that its significance would have been obvious to her at the time. She had the task that day of co-ordinating agency staff and was very busy with her own kitchen work. I believe that she would have avoided if possible voluntarily becoming involved in human resources matters. It would have been different if a direct complaint had been made to her then by Ms McCauley. Ms McCauley also says that Andrew Waszkiewicz the Chef de Partie was present during this exchange but again I find that he would have been oblivious to its significance.
Another example is that Ms McCauley says that Mr Waszkiewicz was present when she told Mr Barrington that he was an arsehole and should back off and fuck off, after which Mr Barrington apologised. She says that Mr Waszkiewicz was looking at them at the time and was about two metres away from her and Mr Barrington. Mr Waszkiewicz does not now recall these words being said. But as I have found later in these reasons it was never put to him prior to the hearing of this matter (some three years after the event) that these words were said. Even if he did hear these words it is not surprising given the passage of time that he cannot recall them.
Mr Waszkiewicz did say soon after the events that he witnessed a conversation about Old Spice and also Mr Barrington’s one last growl comment at the end of the shift on day three. He therefore corroborated these things.
There is also corroboration from Ms Biggs who heard the words “Old Spice” and also from the information volunteered by Mr Barrington himself.
There is also corroboration for Ms McCauley’s version of events from her own reaction as reported by others. This was soon enough after the events to have some value. It is reported in the investigation report in what appears to be summaries of statements made by various people (the actual statements of these people are not in the papers). No less than five people reported that on day four (7 March 2010), Ms McCauley spoke to them about what had happened. The allegations being made by Ms McCauley were remembered differently by these people but included Mr Barrington making innuendos, growling at her like a cat, coming up behind her and growling, acting in a sexually inappropriate way, and referring to Old Spice and cougars. One witness said that Ms McCauley had said she asked him to stop but it continued. One witness described Ms McCauley saying that she was very offended, embarrassed and upset by what had happened. Another said that Ms McCauley was upset for the next couple of days. Another said that three days later she was crying about the matter.
Against this, in the investigation report were comments by some people that nothing seemed amiss in the kitchen and that Ms McCauley did not appear to be offended at the time.
Conclusion on sexual harassment claim
For the purposes of the first statutory test for sexual harassment, I have no hesitation in concluding that Mr Barrington subjected Ms McCauley to unsolicited acts of physical intimacy (by on several occasions between 4 and 6 March 2010 leaning close to her when sniffing the air around her and growling in her ear and around her neck). Also that he made remarks with sexual connotations relating to her (by on several occasions between 4 and 6 March 2010 referring to her as a cougar and on 6 March 2010 asking her for one last growl before she went) and engaging in unwelcome conduct of a sexual nature in relation to her (by on several occasions between 4 and 6 March 2010 making the Old Spice comment and/or making growling noises, while at the same time leaning close to her, and also by referring to her as a cougar and on 6 March 2010 asking her for one last growl before she went).
I turn to the second statutory test for sexual harassment. At first, I do not think that Mr Barrington had the intention to offend, humiliate or intimidate Ms McCauley. He was not aware from her attempts to shy away from him or her turning away from him that she was offended. And her admonitions to him prior to the third day did not get through to him that he offending her. On the third day as a result of the stronger words that Ms McCauley used, he finally became aware that he was offending her. This is demonstrated by the fact that he apologised on that day. However this did not stop his behaviour altogether. Therefore after that time he deliberately continued his behaviour in the knowledge that it would offend her. To my mind this is sufficient to satisfy the test of intention. So I find that after that time on the third day he engaged in the conduct with the intention of offending her.
In any case, a reasonable person would have anticipated even from the outset (that is, before any admonitions) the possibility that Ms McCauley would be offended or humiliated by the conduct. This is because it is a distinct possibility that someone in Ms McCauley’s circumstances would be offended by having their personal space invaded, being referred to as a cougar and being growled at because of that reference and by the references to Old Spice.
Accordingly I do find that the conduct I have found was sexual harassment within the meaning in section 119 of the Act.
Conclusion on direct sex discrimination claim
I also find the same activity which was sexual harassment to be direct sex discrimination. I do not think Mr Barrington would have treated a man the same way. And the treatment of Ms McCauley was less favourable because it was detriment to her. The detriment was the upset caused by the remarks and the behaviour.
Conclusion on direct age discrimination claim
I find that Mr Barrington would not have referred to a younger woman as a cougar. This is because of the meaning of this expression – it would not have fitted the description of a younger woman. Equally, Mr Barrington would not have growled at a younger woman, since this was done by reference to her being a cougar (it was supposed to be the sound of a cougar). Further, he would not have made the Old Spice comments. Taken by themselves the Old Spice comments might have had been innocuous, however Mr Barrington made a reference to Ms McCauley’s age by calling her a cougar and by the associated growling. I find therefore by inference that the Old Spice comments were also made because of her age. Viewed that way, the comments had some meaning and fitted his theme and so the probability is that these comments were made because of her age.
The investigation
The way the investigation was handled is important because it is relied on as an act of victimisation or at least as evidence to support the victimisation case. It also has great importance on the question of causation and on the appropriate award to make.
On day three Ms McCauley finished her shift at about 12 noon. She came into work the following day, which was a Sunday and as I have referred to above, she mentioned to several people at work what had happened and how upset she was about it. There was no manager there that day to whom she could make a complaint. She could have reported it to Ms Briggs as Human Resources Manager, but I accept Ms McCauley’s evidence that she did not wish to do this as she did not think Ms Briggs would deal with it properly because she thought she should have intervened between herself and Mr Barrington.
On Monday 8 March 2010 Ms McCauley was not working at the resort. On Tuesday 9 March 2010 she informed her supervisor Melissa Potts about Mr Barrington’s behaviour and asked to see the general manager of the resort, Greg Magi.
Ms McCauley told Mr Magi what had happened. On hearing the complaint, he contacted Ms Briggs and asked her to investigate the matter. Ms Briggs spoke to Ms Potts and gave her a statutory declaration form to give to Ms McCauley for her to complete.
Ms Potts gave this form to Ms McCauley and said to her that Ms Briggs wanted to know what she hoped to achieve by all of this. The use of these words is something relied on by Ms McCauley to demonstrate that her employer was not interested in her complaint and to support the notion that subsequent events amounted to victimisation. Ms Briggs is not sure whether she might have said something on these lines to Ms Potts.
Ms Briggs started the investigation but about three days later she handed it over to Alan Turnbull in the First Respondent’s head office in Melbourne. Mr Turnbull was the First Respondent’s Employee Relations and Remuneration Manager. He completed the investigation and by 22 March 2010 he had decided that it was not substantiated. On that date, he or his office informed WorkCover of this decision. On 26 March 2010 a formal decision was signed off to that effect by Human Resources.[9] In a meeting on 22 April 2010 Ms McCauley was informed of the decision reached.
[9] exhibit DRB-2
Mr Turnbull got involved as follows. There was a very difficult meeting on 11 March 2010 between Ms McCauley, Ms Briggs and Michelle Haynes the manager of the Kalinda restaurant. From Ms Briggs’ perspective she wanted to know how Ms McCauley wished to proceed – effectively whether the complaint should be dealt with informally (which would result in a meeting between both sides) or whether it should be dealt with as a formal complaint. At that meeting Ms McCauley challenged Ms Briggs that she must have witnessed her admonishing Mr Barrington. However Ms Briggs said she did not witness it. They both became upset.
Because of Ms Briggs’ denial about this, Ms McCauley was convinced that Ms Briggs was covering up for Mr Barrington. She suspected that this was because Ms Briggs did not want to take her complaint seriously for one reason or another.
As a result of this meeting Ms Briggs made the decision that she ought not to continue with the investigation of the complaint. So, through the general manager of the resort, Mr Turnbull of head office was asked to take it over.
In this claim it is said that finding the allegations not to be substantiated was itself an act of victimisation by the First Respondent. It is said itself to be a detriment because of the complaint of sexual harassment. It is also said to indicate that the employer had little interest in the complaint and wanted to brush it under the carpet. It is said that this reveals a motive to victimise Ms McCauley later by taking unwarranted disciplinary action when it was clear she was not prepared to drop the matter.
It is necessary for me therefore to consider the First Respondent’s motive in reaching the conclusion that the complaint was not substantiated.
I do think that the decision reached by Mr Turnbull and by Human Resources that the allegations were not substantiated is a very surprising one.
As I have said earlier, not all the documentation relating to the investigation was provided by the First Respondent for the hearing of this matter. It is likely that Mr Turnbull had before him a number of witness statements. These are missing from the papers. The investigation report does not exhibit them but provides only a summary of what the witnesses said. Mr Turnbull would however have been likely to have had the statutory declarations of Ms McCauley and of Mr Barrington. In the light of this, the evidence available to Mr Turnbull which corroborated Ms McCauley’s complaint was:-
(a)In his statutory declaration Mr Barrington admits having said to Ms McCauley that she was wearing Old Spice,[10] and for the rest of the day joked about that and possibly also joked about it on the second day.
(b)Mr Waskiewicz heard Ms McCauley and Mr Barrington having a conversation about “Old Spice”. Ms Briggs who was also working in the cold room at the time heard the words “Old Spice”.
(c)In his statutory declaration Mr Barrington admits saying something to her on day two about her being a cougar.
(d)Mr Waskiewicz witnessed Mr Barrington saying to Ms McCauley at the end of her shift on the third day “come on give us one last growl before you go”.
(e)On day four (Sunday 7 March 2010) Ms McCauley spoke to five co-workers about what had happened. These witnesses variously recited the complaints made by Ms McCauley about Mr Barrington that day as being that Mr Barrington had making innuendos, growling at her like a cat, coming up behind her and growling, acting in a sexually inappropriate way, and referring to Old Spice and cougars. One witness said that Ms McCauley had said she asked him to stop but it continued. One witness described Ms McCauley saying that she was very offended, embarrassed and upset by what had happened. Another said that Ms McCauley was upset for the next couple of days. Another said that three days later she was crying about the matter.
[10] this is my reading of his statutory declaration; Mr Turnbull read it differently that it was Ms McCauley who said she was wearing Old Spice – this is not a material difference.
On this evidence Mr Turnbull was rightly satisfied in his Investigation Summary that Mr Barrington did make “comments regarding ... old spice”.
Mr Turnbull was also satisfied that Mr Barrington did make “comments regarding ... cougars”. It is not clear whether Mr Turnbull was also satisfied that he had called Ms McCauley a cougar. Mr Turnbull may have been unsure about this, but he did know that Mr Barrington made a comment to Ms McCauley about “being a cougar”. These words were in Mr Barrington’s statutory declaration.
What Mr Barrington was admitting to here was clearer from Mr Barrington’s interview with Ms Briggs on 10 March 2010 when he said that he had said to Ms McCauley “you are a bit of a cougar”. The note of this interview was in a “record of conversation” signed both by Ms Briggs and Mr Barrington and appears in exhibit DRB-3.
On the findings that he made, Mr Turnbull concluded that “a reasonable person in similar circumstances would view the comments as light hearted and not derogatory”.
I find that on the balance of probabilities DRB-3 was never provided to Mr Turnbull. I say this because had this been done then inevitably Mr Turnbull would also have been satisfied that Mr Barrington had called Ms McCauley a cougar and his conclusion would have been different. As he noted in his report, the “pop culture definition of cougar; an older woman that has sexual relationships with much younger men”. It would then follow that a reasonable person would anticipate the possibility that the other person would be offended if they were called a cougar, even in jest. This would satisfy the test for sexual harassment in the Queensland legislation, and the closely similar test in the Sex Discrimination Act 1984 (Cth), and also the definition of harassment in the First Respondent’s own fair treatment policy.
This would have been the case even if Mr Turnbull accepted the evidence from some of the co-workers that they witnessed Ms McCauley joking around with Mr Barrington and there was no tension in the kitchen. This is because this itself would not give the answer to the statutory test.
It is notable that WorkCover was able to conclude “without a doubt that the events alleged by Ms McCauley did take place” and caused an injury as a direct result.[11]
[11] DRB-8.
So it appears from the evidence before me that a serious mistake was made by the First Respondent in failing to put the record of Ms Briggs’ first interview with Mr Barrington before Mr Turnbull. If in fact it was provided to him then Mr Turnbull’s decision cannot be explained at all.
Another real problem with the process that was followed was that Mr Barrington was never asked for his comments about Ms McCauley’s allegations in full. This meant that his statutory declaration was limited to what information he considered it right to volunteer, in the light of a complaint that he had upset Ms McCauley. Since he was largely insensitive to what had upset Ms McCauley, he was unable to identify the information required.
In turn, this means that had the full case been put to him at that time, Mr Barrington would have been likely to have admitted to a lot more than he actually did admit in his statutory declaration. This is shown to be likely because it actually did happen in the hearing before me. When Ms McCauley’s allegations were put to Mr Barrington in cross-examination he did admit that certain things had happened, or could have happened as Ms McCauley said, when previously he had been silent on such matters, or at least had not denied them until his affidavit filed just a few days before the hearing.
This extraordinary situation arose as follows. After the general manager of the resort Mr Magi had seen Ms McCauley on 9 March 2010, he spoke to Ms Briggs the Human Resources manager, and told her orally and in brief what the complaint was about. He asked her to investigate it. Instead of seeing Ms McCauley first to get a full account of what happened, Ms Briggs saw Mr Barrington the next day 10 March 2010 and asked him what had happened. She asked him to write down what happened and to make a statutory declaration. Mr Barrington did this the same day. But at that time Ms Briggs only had the barest of the information about the complaint, relayed to her orally by Mr Magi. She was aware from Mr Magi that Ms McCauley was saying that there had been references to “Old Spice” and to “cougar” and that there had been growling. But she was not aware of the context of these things. This meant that she could not, even if she had wished to, see if Mr Barrington admitted to any of the other important things alleged by Ms McCauley such as being told off by her or the detail or context of the conversations.
In any case, Ms Briggs took the view that it was not her role when interviewing Mr Barrington to prompt him with Ms McCauley’s full complaint. Instead she thought it best to leave it to Mr Barrington to volunteer whatever information he wished to give in response to the complaint that he had upset Ms McCauley. This approach was never going to work properly in a sexual harassment case where the perpetrator may well be totally insensitive to the perceptions of the victim (whether reasonable or unreasonable).
This error was compounded by the fact that Mr Barrington was not interviewed again. This meant that his statutory declaration made on the day of that meeting stood as his statement in the investigation. The first time Ms McCauley’s allegations in full were put to Mr Barrington was at the hearing before me.
There was another serious lacuna in the investigation of this matter. In her statutory declaration, Ms McCauley referred to two specific occasions when she rebuked Mr Barrington.[12]
[12] On my findings there were in fact more occasions when this happened.
The first time was on 4 March 2010 when she said to him “this kind of behaviour is unnatural Steve, I’m old enough to be you mother, this is disgusting” whereupon Mr Barrington replied “you have nothing to be worried about, I’m a happily married man”. Ms McCauley said that those present at this exchange were Ms Briggs, Mr Waszkiewicz and Nathan Meredith.
The second time was after Mr Barrington was close to her in the cool room and he made growling noises at her. When they came out of the cool room Ms McCauley told Mr Barrington to “fuck off” in front of Mr Waszkiewicz the Chef de Partie, whereupon Mr Barrington said “sorry, sorry”.
Now the problem is that these people were not specifically asked in the investigation whether these things happened,[13] although both Ms Briggs and Mr Waszkiewicz expressed the general view that Ms McCauley did not appear offended or upset. Mr Meredith was not interviewed at all. It is impossible to speculate whether Mr Waszkiewicz or Mr Meredith might have recalled the exchanges had they been asked about them at the time. If they had recalled them this would have been powerful evidence to support Ms McCauley’s version of events.
[13] This can be seen from the lack of any reference at all to these things in the investigation report.
So there were three serious errors made in the investigation by the First Respondent:-
(a) Ignoring Mr Barrington’s admission that he had called Ms McCauley “a cougar”.
(b) Not putting Ms McCauley’s allegations in full to Mr Barrington to get his response.
(c) Failing soon after the event or at all, to put to those who may have overheard them, her rebukes of Mr Barrington.
The net result of these errors was that the First Respondent reached a conclusion on Ms McCauley’s complaint which no reasonable employer would have reached.
The subsequent events
What happened after 11 March 2010 needs to be described in some detail because Ms McCauley says she was victimised over this time. The question also arises whether if she suffered a detriment and loss of earnings over this time this was legally caused by the sexual harassment.
A face to face meeting between Ms McCauley and Mr Barrington was arranged for 12 March 2010.
I accept Ms McCauley’s evidence that after she left work after the difficult meeting of 11 March 2010, she experienced uncontrolled sobbing, fear, fear of job repercussions, panic and a severe headache. Because of these symptoms, she made an appointment to see the doctor the following day. She also telephoned Ms Haynes at work and told her she was not feeling well and could not attend the face to face meeting the following day.
Ms McCauley had clearly found the meeting on the 11th very upsetting and confrontational. She was also fearful about the face to face meeting with Mr Barrington that was planned for the next day. On the evidence that I heard I am sure that had Ms McCauley considered that her employers were more supportive in her complaint then she would have been happier to attend the meeting. As it was, she considered that the meeting would go against her.
Ms McCauley remained off sick for nearly three months.
Whilst off sick Ms McCauley sought medical assistance. She saw Dr Mark Phoon at her local clinic and she told him about the sexual harassment. He prescribed Valium and advised her to take a week off work. Six days later when she saw him, he gave her a sick certificate marked “sexual harassment”[14] which covered her until 31 March 2010. Dr Phoon referred her to Dr Louise William, a psychologist. Soon after, Dr William referred Ms McCauley to a psychiatrist, Dr Maxwell Katz.
[14] The evidence for this appears in exhibit DRB-8.
At that time Ms McCauley was feeling very stressed, panicked, tearful and overwhelmed by the events. I accept that she had a deep fear about facing all the gossip that would await her upon her return to work, and a fear of meeting Mr Barrington again.
Roughly about this time Ms McCauley made a further statement to Mr Turnbull which is not in the papers. A summary of it appears in the investigation report. Ms McCauley said that in reliving the events she was suffering severe headaches, fear of repercussion and feelings of panic. I accept the accuracy of this.
Ms McCauley saw Dr Katz on 29 March 2010 and he prescribed medication (anti-depressants and sleeping tablets). The next day Dr Katz prepared a medical report for WorkCover which stated that Ms McCauley was suffering from an adjustment disorder with mixed anxiety and depressed mood, where work was a significant contributing factor. He identified the stressor as sexual harassment.
Over the ensuing weeks, Ms McCauley saw Dr Katz on a weekly basis. She was receiving psychiatric counselling. She continued with the medication and she also had ongoing support from her GP. She had certificates showing that she was off sick over this time for the same reason as stated before: sexual harassment.
While off sick Ms McCauley was contacted by Anne James, the executive assistant to the general manager and was asked to come in to work. She was told that the First Respondent had reached a decision on her case. She attended a meeting on 22 April 2010. The meeting was formal. Present were Mr Magi the general manager, Michelle Haynes manager of the Kalinda restaurant, and Ms James who took minutes. Ms McCauley was allowed to bring a friend and she attended with Debbie Burnup who gave evidence at the hearing. At the meeting Ms McCauley was told the result of the investigation by Mr Magi. In respect of her allegations she was told that “nothing could be substantiated”. Mr Magi also pointed out that since remarks had been made by Mr Barrington this was regarded as “bullying” and he would be given a refresher course on equal employment opportunity.
Ms McCauley misunderstood what Mr Magi said to her and thought that at the meeting he had referred to her complaint as being of bullying, rather than of sexual harassment. Whilst this is understandable as a result of the words used by Mr Magi as shown by the minutes (and was also the understanding of Ms Burnup), this was not what Mr Magi said.
The meeting upset Ms McCauley. Ms Burnup remembers at one point in the meeting she cried. I accept that what happened at the meeting added to Ms McCauley’s view that she was not being supported by her employers in the matter. As can be seen from the passages from Dr Katz’s opinion evidence given below, this made Ms McCauley’s return to work more difficult and sensitised her to further problems which arose at work.
Ms McCauley was originally scheduled to return to work on 13 May 2010. She was given a “suitable duties programme”, and as part of this the First Respondent gave consideration to a work plan for her return to work, which included trying to minimise the possibility of her coming across Mr Barrington, however this was something which was impossible to avoid. At this time she was still on medication and was still feeling anxious and nervous. It would appear that the medication she was on at that time did not suit her at all. She described being extremely agitated and feeling unwell, very verbal and quite manic – doing crazy things around the house in the middle of the night[15].
[15] This appears from paragraph 159 of her witness statement and also from the transcript of the QIRC appeal on page 1-27.
Seemingly because of this, Dr Katz provided a further certificate to say that Ms McCauley was unfit for work until 1 June 2010 because of anxiety and depression[16]. Meanwhile Ms McCauley’s medication was changed and she improved.
[16] Exhibit MK5.
Although the evidence is incomplete and inconsistent about the dates of Ms McCauley’s actual return to work, it does appear on the balance of probabilities that she returned to work before 1 June 2010, probably on Sunday 30 May 2010. On the day of her return, Ms Potts told her she would need to attend a meeting with Ms Briggs to discuss the change from casual to flexi part-time working. Ms McCauley was still extremely distrustful of, and resentful towards, Ms Briggs. This was because she thought Ms Briggs had tried to protect Mr Barrington and the company from her sexual harassment allegations. The suggestion of a meeting with Ms Briggs resulted in Ms McCauley having another panic and anxiety attack and Ms Potts advised that she should go home. Before she was able to leave, Mr Barrington entered the room and Ms McCauley says, and I accept, that she spun into a “complete meltdown” and was struggling to breathe and she was hiding in the corner of the room. After this incident Ms McCauley saw Dr Katz on an urgent basis and obtained a further medical certificate.
Ms McCauley returned to work on 3 June 2010 and on that day she attended two meetings.
The first meeting was with Ms Briggs to discuss the new contract to put Ms McCauley on permanent flexi part-time working.
The second meeting on this day was immediately after the first one. This was a discussion between David Callaghan who was the Food and Beverage Operations Manager and Ms McCauley. It was called because two of her colleagues had reported to management that she was complaining to them at work about the way her sexual harassment complaint had been handled and that she was saying such things as she would make the hotel pay.[17] These colleagues were saying that Ms McCauley was interfering with their work and they didn’t want to listen to it. Mr Callaghan gave her a caution.
[17] On the balance of probabilities this had been happening on 30 May 2010 when Ms McCauley worked until advised to go home by Ms Potts.
The question has arisen whether this second meeting amounted to a form of disciplinary action. There was nothing given to Ms McCauley in writing. It was not a “first warning” within the “Managing Unacceptable Conduct” policy. However it was not “Informal Counselling” either. This is because the aim of informal counselling in the policy is to reach agreement with the employee as to progress. The meeting was recorded and there was a note taker present. The caution was imposed on her, there was a minute taken of this, and this was placed on her personnel file. In my view it was sufficiently formal to be a form of disciplinary action. This is because the caution could have been taken into account in subsequently disciplinary action.
Ms McCauley had little warning about this meeting and before it started she did not know what the meeting was about.
In this meeting, Ms McCauley explained that when she was asked by colleagues about her absence she had gone into detail about the reason for it. She explained that she had been rather verbal in her answer and this could be an effect of the medication she was on. She was also in total agreement with Mr Callaghan that it was wrong to continue to talk about such matters to people who were not involved. And she explained that she had never been told not to talk about the matter to her work colleagues. She further explained that she had relied on the support of her work colleagues at the time of the harassment in her decision to report it.
Had it been intended by the legislature that under the Anti-Discrimination Act the joint and several liability must in every case result in equal awards, the words in section 133(1) could have been “jointly and severally civilly liable for the loss and damage arising from the contravention”. And it is to be noted that the words used in section 133(1) contrast in this respect with those used in sections 6 and 7 of the Law Reform Act 1995 itself. These concentrate on liability for damage suffered by a person as a result of a tort.
There is nothing in the Act which requires that the order made against a respondent liable for a particular contravention should be the same as an order made against a respondent liable for the same contravention. In fact, section 209 is worded to suggest otherwise, so that for example it might be right to require a public apology from one or more respondents but not others, or to make a recommendation which might affect only one of the respondents.
It might be argued however, that the very use of the words “joint and several” in section 133(1) connotes the requirement that the ultimate responsibility between them is equal, and this is therefore inconsistent with a tribunal’s power to make the awards different. But case law suggests that whilst equal ultimate responsibility is the traditional approach where there is joint and/or several liability, there are cases where it has been departed from.[48]
[48] In particular see a review of the case law by Ward J in The Owners Strata Plan 62930 v Kell & Rigby Holdings Pty Ltd [2010] NSWSC 612 paragraphs [417] to [432] and the summary of the position at [433].
I believe the ability of a tribunal to make different awards against respondents in respect of the same contravention of the Act also ties in properly with my analysis above that the test of remoteness of damage does not apply to anti-discrimination claims under the Act because of the important discretion given to tribunals by the word “appropriate” in section 209(1)(b).
As mentioned earlier, it would not be possible to reduce the award made against the vicariously liable employer because of the purpose set out in section 132. But in an exceptional case such as this one I take the view that it is possible to reduce the award to be paid by the perpetrator.
The calculation of the order is therefore as follows:-
Award for non-financial loss $22,000
Less WorkCover lump sum $13,274 $8,726
Award for financial loss $23,833
Interest on this $2,931 $26,764
Total award: $35,490
Of this amount, the First Respondent shall be responsible to pay $35,490. Of this amount, Mr Barrington shall be responsible to pay $4,500. Under these orders the total amount Ms McCauley may recover is $35,490.
14
9
0