McKibbin v State of SA (Office of the Public Trustee) - [2004] SAEOT 1

EQUAL OPPORTUNITY TRIBUNAL
(District Court Administrative and Disciplinary Division)
MCKIBBIN v STATE OF SA (OFFICE OF THE PUBLIC TRUSTEE)
Judgment of His Honour Judge Rice, Member Altman and Member Bachmann
25 June 2004
DISCRIMINATION LAW - STATE PROVISIONS - SOUTH AUSTRALIA - SEXUAL DISCRIMINATION
SEXUAL HARASSMENT - complaint to the Commissioner for Equal Opportunity alleging sexual harassment within the Office of the Public Trustee - complaint declined by the Commissioner - complainant requested that the complaint be referred by the Commissioner to the Tribunal for hearing and determination - Issues - whether the conduct amounted to sexual harassment - whether Public Trustee vicariously liable - whether complaint out of time - whether Workers Rehabilitation and Compensation Act 1986 precluded an award of damages under the Equal Opportunity Act 1984 - whether complainant could be double compensated for same injury - whether release and discharge of person performing conduct also served to release the Public Trustee from any liability - Held - complaint dismissed for various reasons but Public Trustee failed to take adequate steps at an early stage to protect complainant from conduct.
Equal Opportunity Act 1984 s 87, s 91(2), s 95(8)(c); Workers Rehabilitation and Compensation Act 1986 s 54, referred to.
The University of New South Wales v Moorhouse and Another (1974-1975) 133 CLR 1; Adelaide Corporation v Australasian Performing Right Association Ltd (1928) 40 CLR 481; Shellharbour Golf Club Limited v Wheeler & Ors [1999] NSWSC 224 (24 March 1999); Caton v Richmond Club Limited [2003] NSWADT 202 (27 August 2003) (EO Division); Smart v State of South Australia [2002] SADC 59; J F & B E Palmer Pty Ltd v Blowers and Lowe Pty Ltd (1987) 75 ALR 509, considered.

MCKIBBIN v STATE OF SA (OFFICE OF THE PUBLIC TRUSTEE)
[2004] SAEOT 1
Introduction

In this matter, Mr Robert McKibbin (“Mr McKibbin”) made a complaint to the Commissioner for Equal Opportunity that he had been subjected to sexual harassment while working in the Office of the Public Trustee. The complaint to the Commissioner was dated 26th February, 2003 and related to alleged conduct in and about the end of August, 2002. The Commissioner received the complaint on 27th February, 2003. The Commissioner declined the complaint and was then requested by Mr McKibbin to refer the matter to the Equal Opportunity Tribunal (“the Tribunal”). On 23rd September, 2003, the Commissioner referred the complaint of sexual harassment to the Tribunal pursuant to s.95(8)(c) of the Equal Opportunity Act 1984 (the “EO Act”).
As mentioned, the substantive allegation is one of sexual harassment. The details of that allegation are dealt with below, but we mention at this stage that there were arguments of a technical nature raised on behalf of the Public Trustee that, if resolved in favour of the respondent, would preclude the Tribunal from exercising some or all of its powers even if the complaint was otherwise made out. Some of those matters are that a conciliation settlement of the complaint against the alleged perpetrator of the sexual harassment precludes the operation of s.91(1) of the EO Act; that the Public Trustee is not liable for any acts earlier than six months before the making of the complaint; that s.54 of the Workers Rehabilitation and Compensation Act 1986 (“the WR&C Act”) barred the recovery of damages except through that Act; that compensation has already been paid pursuant to the WR&C Act; that no “sexual harassment” in fact took place; and that, even assuming sexual harassment had taken place, the Public Trustee was not vicariously liable.
Those matters, in addition to others, are dealt with below. However, before dealing with any of those aspects of the case, it is necessary to outline the factual background.
We propose to deal with the orders sought by Mr McKibbin after providing that background.
Background to the complaint
Mr McKibbin joined Public Trustee in June, 1999 in a full-time capacity but as a contractor. Mr McKibbin had a background in private enterprise with his own computer training and IT company. He was brought into Public Trustee at a time when its IT staff were absent and he was to provide desktop services to the user base. There was apparently no fixed period for which he was contracted and he remained to help fix problems with the network within Public Trustee even after an IT staff member returned from leave.
In February, 2000 Public Trustee appointed an IT Manager and it was this person (“Mr H”) who was the alleged perpetrator of the sexual harassment. (We do not find it necessary to name this person; the parties know the person to whom reference is being made.)
Public Trustee created a permanent position within the public service of “Senior Systems Administrator” to which Mr McKibbin was appointed on 12th March, 2001. It was only at this time that he became an employee within the meaning of s.87 of the EO Act.. In an hierarchical sense, after the appointment of Mr H as IT Manager, Mr McKibbin reported to Mr H and Mr H reported to Mr D. O’Neill, General Manager, Corporate Services.
In March, 2000, Mr H called a meeting of IT staff but Mr McKibbin was not invited. Mr McKibbin was told later that Mr H had said at the meeting that Mr McKibbin was not to be trusted and that he (Mr McKibbin) was after Mr H’s job (TP32-3). This was essentially confirmed in evidence by a staff member who was present (TP218-9).
About a week later Mr McKibbin had what he described as a “reasonably explosive encounter” with Mr H (TP33). The details of the dispute are not relevant but it related to Mr McKibbin dealing with an outside IT support provider instead of Mr H performing that function. Within a very short period of time Mr O’Neill came to learn of this dispute and took both Mr H and Mr McKibbin to the Hilton Hotel for a coffee in an endeavour to resolve the dispute and underlying problem. Mr McKibbin told us that Mr O’Neill said that Mr McKibbin and Mr H had two weeks to work out the problem or one of them would have to go (TP34). Mr O’Neill, who was called by the respondent, confirmed that he mediated between the two at the Hilton Hotel because there was the risk to the organisation if there was an ineffective IT area (TP264-5).
The evidence about that “explosive encounter” suggests it took place on or about 17th May, 2000. That is the date a written complaint by Mr McKibbin was given to Mr O’Neill (see exhibit P8). The text of the complaints made in that letter makes no mention of the “explosive encounter/Hilton Hotel” occasion, so it is reasonable to proceed upon the basis that the letter was composed before that encounter, although it may have been delivered to Mr O’Neill after it. Mr McKibbin said that, after that encounter, Mr H conducted himself in a manner as to amount to sexual harassment. The letter of complaint also does not mention any form of alleged sexual harassment, so that conduct, whatever its characterisation, commenced after the composition of that letter. Without wanting to minimalise the complaints in the letter, many of them relate to the management style of Mr H and its undermining effect.
As to the nature of the conduct of Mr H following that letter, we generally accept the evidence of Mr McKibbin. Initially, the conduct was no more than rubbing himself on the crotch area, but later it progressed to making masturbating actions and gestures (with or without a ruler) and, from about May to August, 2002, pulling his trouser zip up and down right at Mr McKibbin’s face level (TP35-40). Indeed, all of this conduct was in Mr McKibbin’s presence and was directed towards him. We recognise that the evidence and interviews of others that worked in the IT area do not go this far, but we accept that much of Mr H’s conduct occurred when only Mr McKibbin was present.
Although this conduct may not have occurred with the frequency sometimes asserted by Mr McKibbin in his evidence, we have no doubt that each of these forms of behaviour occurred often throughout the period May, 2000 until August, 2002. Further, there is no doubt that such conduct was deeply offensive to Mr McKibbin (as it would have been to most people), vulgar and sexually suggestive. We do note, however, that as offensive and as suggestive as this conduct was, there was no physical contact with Mr McKibbin. Any language used by Mr H was also offensive but was not actually sexually suggestive towards Mr McKibbon.
We also accept that Mr McKibbin complained to Mr O’Neill on a number of occasions about the conduct of Mr H. Although we deal with this aspect later in our reasons, we say at this stage that, in our view, insufficient was done by management to stop Mr H’s conduct and thereby protect Mr McKibbin. We recognise that much will depend upon the manner in which the complainant wishes to deal with this sort of complaint and the specifics of the complaint, but if counselling fails to bring a stop to the conduct complained of, management has an overriding responsibility to do more. In our view, the management of Public Trustee should have acted decisively and firmly at a much earlier time. We are confident such a response would have been effective in stopping this conduct before it got out of hand.
On Mr McKibbin’s account he had been told by Mr O’Neill that nothing could be done about Mr H’s conduct unless a formal complaint was lodged, that is, a complaint in writing (TP39). Mr McKibbin’s attitude to that was that he was reluctant to put the complaint in writing because he regarded his position at Public Trustee at risk if he did so and apprehended another ultimatum that one of them would have to go if it could not be sorted out. Further, from his point of view, little seemed to have been done after his earlier letter of complaint.
As we have mentioned, Mr H’s conduct gradually worsened, particularly in pulling the zip of his pants up and down. In addition to that, and also towards August, 2002, Mr H showed pictures to Mr McKibbin of decapitated children in Indonesia.
That conduct, in combination with the matters mentioned above and other conduct, culminated in Mr McKibbin eventually submitting to Mr O’Neill a written complaint dated 12th August, 2002. That was referred to as a joint complaint because it was signed by Mr McKibbin and two other members of the IT staff. The subject of the complaint was expressed to be “Workplace Bullying”. We reproduce the full text of that complaint (exhibit P2):-
“Further to representations made to you last week we, the undersigned, want to bring particular issues to your attention.
Supporting material published by the Department of the Premier and Cabinet cites, in part:
Workplace bullying is a form of persistent harassment which demeans, threatens, intimidates or humiliates a person in the workplace. It makes the recipient feel humiliated, threatened or vulnerable. Workplace bullying can involve overt aggressive behaviour and covert passive aggressive behaviour. It can involve psychological, emotional, social or physical harassment.
Examples of bullying behaviour can include:
· intimidating aggressive body language
· verbal threats
· shouting and screaming
· sexual and racial harassment
· persistent nit-picking or unjustified criticisms
· isolating or ostracising an individual
· spreading gossip or rumours about a person
· creating extra work or disrupting a person’s ability to work
· setting unreasonable deadlines
· withholding information from an employee so they are less able to do the job
· preventing access to opportunities
· humiliating an individual through sarcasm, criticism or insults, sometimes in front of other employees or customers
· threats or acts of physical violence
· sabotage of a person’s work
· constant surveillance of an employee to a greater extent than others, with no justifiable reason
We, as a group, declare that we all, at sometime or another, have been subjected to most of the behaviours as listed.
We further declare that these behaviours have been on-going since early 2000 and we now require assistance to resolve these issues.”
Upon being presented with P2, Mr O’Neill said it was very scant and he wanted precise details (TP45). We note that the complaint refers to “sexual harassment” amongst a large number of examples of workplace bullying, but with no specifics. We also note that the complaint asserts that the listed behaviour had been ongoing since early 2000.
At Mr O’Neill’s request, Mr McKibbin prepared details of his complaints. It was delivered to Mr O’Neill within a short time of the meeting at which the complaint was presented to him. Those details are annexed to exhibit P2. Although not all of the matters there referred to relate to alleged sexual harassment, we reproduce the complete text of the annexure to show the full gamut of Mr H’s conduct with which Mr McKibbin had to contend:-
“Sexual and Racial Harassment.
Persistent references to Muslims & Catholics.
Persistent reference to how the Indonesians severed penises off of Dutch soldiers and rammed them down their throats.
References to the ‘chopping off of heads of children’ & the showing of pictures sent to him.
Persistent ‘touching’ around the private areas in front of staff in main work area, and in privacy of office in front of staff.
Persistent sexual lewdness with various objects around the office. (Anything resembling a penis).
Disrupting a Person’s Work.
Constantly in the main work area talking sex & general crap.
Humiliating an individual through sarcasm, criticism or insults, sometimes in front of other employees or customers.
Constant critical references to the likes of EDS representatives and Protech representatives about Des O’Neill.
Relentless criticism about DJ.
Saying in front of DS and others that it is RMcK’s fault that I.T. is under the spotlight from DO’N and that RMcK is a troublemaker.
Persistent Nit-Picking or Unjustified Comments
Constantly telling the Help Desk & Support Services Supervisor that he should not be so friendly with staff, and that he should not be having lunch with them.
And that he is not a capable Manager of people.
Constant enquiries as to what we were talking to other Officers about, when seen by him shortly before.
Shouting and Screaming & Intimidating Aggressive Body Language
Various heated episodes with the CBIS Project Manager, RMcK, PU, and NA.
Telling various staff that various individuals can ‘get fucked’ whilst remonstrating loudly with extreme body language.”
Although the precise dates have not been provided, Mr McKibbin was off on WorkCover for a time after he provided the complaint and the particulars that form exhibit P2. In all, in late 2002 and early 2003, we are told that he was away from work for about 100 days. Some of that was on WorkCover and the remainder various forms of leave. The time away from work was made up of a number of periods depending upon need and commitments. Obviously the situation at Public Trustee gave rise to a work related injury and entitled Mr McKibbin to WorkCover. The nature of that injury was depression, anxiety and injury to his feelings arising from his employment.
On 28th August, 2002, just before what seems to have been his first return to work, Mr McKibbin wrote to Mr O’Neill and Mr Overy, Manager of Human Resources and Administration. Mr McKibbin expressed his attitude about returning to work, including being prepared to work with Mr H “….but only under particular understandings.” Included in that note, exhibit R9, Mr McKibbin said these things:-
“I am prepared to resume my role within the I.T. group with the utmost sincerity and enthusiasm, on the proviso that the behaviours tolerated by others and me during the past two and one half years, are history. I am fully aware of the mechanisms available to me should particular, more serious behaviours, reoccur. I will at all times be courteous & show the respect that is due to my immediate Supervisor.”
And later:-
“Whilst there have been times I have tolerated the ‘sexual’ actions of the I.T. Manager, of recent times these actions, particularly in the lone presence of him within his office, have disturbed me. I have noticed his behaviour take on a more ‘serious’ tone. I assure you both, I have reached the end of my patience with this respect and will not hesitate bringing to bear any or all mechanisms at my disposal should it ever happen again.”
The second of those quotations, along with other material to which we will refer, confirms Mr McKibbin’s complaints to management for well over two years relating, in part, to alleged sexual harassment by Mr H.
Another document confirms this position. The Public Trustee, Ms O’Loughlin, organised a meeting that took place on 16th September, 2002 between herself, Mr McKibbin and Mr H. Mr Overy may have also attended this meeting but exhibit R13, with the handwritten date of 16th September, 2002, was provided by Mr McKibbin to Mr Overy on that day. The entire document bears reading but we reproduce only part:-
“In short, in particular the sexual behaviours, the daily exposure to this person’s proclivities almost became normal. Every now & then a serious confrontation would erupt.
During this two-year period, on many occasions, I made contact with Management, with Sexual Harassment contact officers, and with various Human Resources staff members. Each & every time I stressed that this aggravated offence was continuing. It would be difficult to suggest that Management was never aware of the problems. As an observer, it would be easy to believe that the situation was totally ignored.”
The Public Trustee wrote a memorandum to Mr McKibbin dated 25th September, 2002, referring back to the meeting of 16th September (exhibit P3). After dealing with the formal counselling of Mr H that had already taken place, the Public Trustee responded to Mr McKibbin’s assertions referred to in his note of 16th September as quoted above. The Public Trustee said this:-
“You will no doubt be aware that I cannot act officially until I receive a formal complaint. I have been informed that only once during this period was a formal complaint laid and this resulted in a mediation session and counselling for those involved. It is my understanding that your approaches to various Contact Officers, Peer Support Officers and Management during this period were made informally and no official complaint was filed.”
The Public Trustee refers to the need for a “formal complaint”. Mr McKibbin told us that there was a requirement by management that he put the complaint in writing before it could be acted upon. There is certainly no requirement that a complaint should be in writing. We would understand the reference to “formal complaint” to be a complaint that the person making the complaint wants it to be acted upon. However, in our view, the responsibilities of management do not depend upon whether the initiator of the complaint wishes the behaviour to be acted upon. Indeed, the responsibilities of management to take action do not even depend upon a complaint. For example, management may be aware by observation that a situation of actual or potential sexual harassment exists. Management would be obliged to act in the absence of a complaint and even in the face of a desire by the person against whom the conduct was directed, that no action be taken. We have more to say about that later, especially exhibit P7.
The material before us shows that a WorkCover claim was filed on 2nd October, 2002 by Mr McKibbin for anxiety and depression alleging two and a half years of sexual harassment and bullying by Mr H. Mr McKibbin was away from work from 2nd September, 2002 to 15th November, 2002.

The next item in the flow of correspondence is Mr McKibbin’s response, dated 13th October, 2002 (exhibit P4), to the Public Trustee’s memorandum of 25th September, 2002 (exhibit P3 above). Essentially he makes the point, with which we agree, that the responsibility of executives and management to identify workplace bullying (which includes sexual harassment) does not depend upon the submission of a complaint.
In late 2002/early 2003 the Public Trustee arranged for a psychologist, Mr Daryl Cross, to work with Mr McKibbin and Mr H (all three being present) and in all they had about eight hours together (TP47). Mr McKibbin said he withdrew from these sessions of counselling/mediation because Mr H remained in denial and was behaving in a bizarre and erratic manner (see TP47-8 and P6 dated 25th February, 2003).
By letter dated 13th November, 2002, Mr Overy wrote to Mr McKibbin’s treating doctor, Dr A Cameron, seeking various opinions that were relevant to an assessment of Mr McKibbin’s entitlements pursuant to the WR&C Act. In his reply of 11th February, 2003, Dr Cameron expressed the opinion that Mr McKibbin was suffering from a moderate depression with some features of anxiety.
By letter dated 2nd January, 2003, Mr Overy also sought a report from Dr M Ewer, psychiatrist. In his report of 9th January, 2003, Dr Ewer expressed the opinion that Mr McKibbin was suffering from a recognised psychiatric disorder of mild severity known as Adjustment Disorder with Anxious Mood. Dr Ewer was of the view that Mr McKibbin had been totally incapacitated for work for a period of some weeks, but as at the time of reporting he was no longer incapacitated for work and “….he could perform his normal substantive duties providing the conflict between himself and Mr H was resolved” (see P21).
Mr McKibbin also said in evidence that, for the vast majority of the time, he and Mr H continued to work in the same area and relatively close to each other. It was not until November, 2002 that they worked on separate floors. That continued until March, 2003 when they resumed working in the near vicinity of each other on the same floor. According to Mr McKibbin, media publicity relating to a directions hearing in this matter caused Mr H to “fall apart” and for the moment they are working on separate floors. Both continue to occupy their same substantive positions.
We have not attempted to deal with all the factual matters raised by Mr McKibbin. We have picked the salient features by way of summary. Additional facts are referred to as necessary in discussing particular points.
Complaint to the Commissioner for Equal Opportunity
As noted, Mr McKibbin made a complaint to the Commissioner on 27th February, 2003. The Commissioner declined the complaint and wrote to Mr McKibbin to that effect by letter dated 26th August, 2003. The Commissioner noted that there were, in effect, two complaints, one against Mr H personally for alleged sexual harassment, and the other against the Office of the Public Trustee for failing to investigate and act upon those complaints during the period March, 2000 and August/September, 2002.
For reasons expressed by the Commissioner, the view was taken that the complaint against the Office of the Public Trustee was lacking in substance and, pursuant to s.95(1) of the EO Act, she declined to recognise the complaint as one upon which action should be taken. The Commissioner also said this:-
“Although an employer might be directly liable under section 87 (7) for the actions of an employee, I am of the opinion that the Office of the Public Trustee took reasonable steps to prevent the behaviour from occurring, providing counselling to Mr H…… and addressing your complaints. I do not think that it could be established that the Office of the Public Trustee ‘instructed, authorised or connived’ in the acts of sexual harassment, and I am of the opinion that the complaint of sexual harassment against the Office of the Public Trustee has no, or insufficient substance, to refer to the Tribunal.”
As to the complaint against Mr H personally, that was resolved at a conciliation conference on 2nd July, 2003. Without objection from the Commissioner, and notwithstanding s.95(7) of the EO Act, we received a copy of the Settlement Agreement of that date (exhibit R1). (Although we were not called upon to rule upon the admissibility of the agreement in these proceedings, we tend to consider it was admissible. The text, particularly clause 4 referring back to a non-existent clause 3(b), suggests that the document was not signed “in the course of conciliation proceedings” but rather at a separate, later time. We also note from the text that the document itself provided for disclosure to ensure compliance with or enforcement of the agreement.) That complaint against Mr H relates to the same alleged sexual harassment which we are asked to consider in the context of the complaint against the Office of the Public Trustee. That settlement records that Mr H, “…without any admission of liability verbally apologises to the Complainant for any unintentional hurt caused by his actions.” The settlement further records that, in consideration of the verbal apology, Mr H is personally released and discharged from any claims that Mr McKibbin “….may have, or may have had, relating to the complaint described in clause 1 of this agreement.”
Orders sought by Mr McKibbin
Mr McKibbin represented himself before us. Although we would be bound by s.96 of the EO Act if we determined there had been a contravention of the Act, Mr McKibbin expressed it in this way. Mr McKibbin’s position is that he was subjected to sexual harassment by Mr H but that his oral complaints were not acted upon or certainly not acted upon adequately. The conduct continued and worsened and further complaints were not acted upon or not acted upon adequately. Mr McKibbin seeks a determination that he was subjected to sexual harassment and, upon his complaints to management, there was a failure to “nip it in the bud”. He contends that there were inadequate procedures in place to deal with what was, or may become, sexual harassment or, if the procedures were adequate, there was a failure to adhere to them.
Further, he contends that there is no need or requirement that a complaint of such conduct be in writing and that management should have acted upon his oral complaints. Mr McKibbin is particularly motivated to ensure that any other person in Public Trustee or the Public Service generally not have a complaint of sexual harassment dealt with in the same manner as his. (We observe at this stage that, whatever the factual or legal merits of his complaint, there is no doubt that Mr McKibbin is well-intentioned and concerned for others who may find themselves in the same position as him.) In all, Mr McKibbin says he is entitled to a public apology from Public Trustee.
As very much a secondary purpose or motivation, Mr McKibbin seeks damages for “hurt feelings” (TP28) (s.96(3) of the EO Act). At one stage, Mr McKibbin sought damages for his wife and children because they, in the family setting, had to cope with Mr McKibbin’s depression and anxiety. Not only is there no evidence to support a claim in damages by his wife and children, the EO Act does not give a right for such a claim.
Mr McKibbin did not pursue a suggestion of victimisation by the Office of Public Trustee.
Discussion on issues raised
Was there sexual harassment?
S.87(2) of the EO Act makes it unlawful for an employee to subject a fellow employee to sexual harassment. S.87(7) makes it unlawful for an employer to fail to take such steps as may be reasonably practicable to prevent an employee from subjecting a fellow employee to sexual harassment. There are then two related provisions, s.87(10) and s.91(2).
S.87(10) provides as follows:-
“(10) Damages will not be awarded in respect of a failure to take steps to prevent sexual harassment (being a failure that is unlawful by virtue of subsection (7), (8) or (9)), unless it is established that the person guilty of that failure instructed, authorised or connived at the sexual harassment.”
S.91(2) provides as follows:-
“(2) A person is not vicariously liable for an act of sexual harassment committed by an agent or employee, unless the person instructed, authorised or connived at that act.”
In effect, a right to damages and vicarious liability depend upon the alleged victim establishing that the person who has failed to prevent sexual harassment or the employer “….instructed, authorised or connived….” at the sexual harassment.
For the purposes of s.87 of the EO Act, sexual harassment is defined as follows:-
“(11) For the purposes of this section, a person subjects another person to sexual harassment if he or she does any of the following acts in such a manner or in such circumstances that the other person feels offended, humiliated or intimidated:
(a)he or she subjects the other to an unsolicited and intentional act of physical intimacy;
(b)he or she demands or requests (directly or by implication) sexual favours from the other;
(c)he or she makes, on more than one occasion, a remark with sexual connotations relating to the other,
and it is reasonable in all the circumstances that the other person should feel offended, humiliated or intimidated by that conduct.”
Concerning s.87(11)(a), that subsection requires an act of “physical intimacy”. The evidence does not go that far. In our view, that subsection has no application. Subsection (b) also has no application because, in our view, there was no implied request for sexual favours. As for subsection (c), we are unable to find that any remarks were made with sexual connotations relating to Mr McKibbin. We have approached a consideration of this complaint in accord with the decision of the Full Court in Tripp v Freeman, Judgment No. (1998) S6948. In essence, there was no “sexual harassment” within the meaning of s.87.
We repeat the view expressed earlier that Mr H’s conduct was deeply offensive to Mr McKibbin, vulgar and sexually suggestive but without sexual connotation relating to him. We add that Mr H’s conduct, including conversation and remarks, on an ongoing basis had no regard to Mr McKibbin’s sensitivity or sensibility.
Having taken that view, it is strictly not necessary to deal with other questions that have been raised. However, bearing in mind that this matter could go further, we think it appropriate to express our views on other aspects of the case as well.
Assuming sexual harassment, has Public Trustee been shown to be vicariously liable?
As mentioned, the answer to that question depends upon whether Public Trustee “instructed, authorised or connived” at the sexual harassment. There is no evidence the Public Trustee gave any instruction or was in any way involved in the conduct. Understandably, Mr McKibbin relied upon “authorised”, giving it a wide meaning to include conduct of which it was aware, with which it was in a position to deal, failed to adequately deal with and thereby “authorised” its continuance.
Mr McKibbin relied upon The University of New South Wales v Moorhouse and Another (1974-1975) 133 CLR 1. That case involved an alleged breach of the Copyright Act 1968 (Cth). A graduate of the university used one of a number of photocopying machines to make copies of a story from the library copy of a book. One of the questions that arose was whether the university had “authorised” the breach of copyright by the graduate. Jacobs J, with whom McTiernan ACJ agreed, said (at 20-21, 23) that, on the facts of the case, the university “authorised” the act of reproducing the literary work. Gibbs J agreed and put it in this way (at 12-13):-
“The word ‘authorize’, in legislation of similar intendment to s. 36 of the Act, has been held judicially to have its dictionary meaning of ‘sanction, approve, countenance’: Falcon v. Famous Players Film Co. [1926] 2 K.B. 474, at p. 491; Adelaide Corporation v. Australasian Performing Right Association Ltd. (1928) 40 C.L.R. 481, at pp. 489, 497. It can also mean ‘permit’, and in Adelaide Corporation v. Australasian Performing Right Association Ltd. (1928) 40 C.L.R. 481 ‘authorize’ and ‘permit’ appear to have been treated as synonymous. A person cannot be said to authorize an infringement of copyright unless he has some power to prevent it: Adelaide Corporation v. Australasian Performing Right Association Ltd. (1928) 40 C.L.R., at pp. 497-498, 503. Express or formal permission or sanction, or active conduct indicating approval, is not essential to constitute an authorization: ‘Inactivity or “indifference, exhibited by acts of commission or omission, may reach a degree from which an authorization or permission may be inferred” ’: Adelaide Corporation v. Australasian Performing Right Association Ltd. (1928) 40 C.L.R., at p. 504. However, the word ‘authorize’ connotes a mental element and it could not be inferred that a person had, by mere inactivity, authorized something to be done if he neither knew nor had reason to suspect that the act might by done. Knox C.J. and Isaacs J. referred to this mental element in their dissenting judgments in Adelaide Corporation v. Australasian Performing Right Association Ltd. Knox C.J. (1928) 40 C.L.R., at p. 487 held that indifference or omission is ‘permission’ where the party charged (amongst other things) ‘knows or has reason to anticipate or suspect that the particular act is to be or is likely to be done’. Isaacs J. apparently considered that it is enough if the person sought to be made liable ‘knows or has reason to know or believe’ that the particular act of infringement ‘will or may’ be done (1928) 40 C.L.R., at pp. 490-491.”
And later (at 17):-
“For these reasons I hold that the University did not adopt measures reasonably sufficient for the purpose of preventing infringements taking place. It follows that in these circumstances when Mr. Brennan used the means provided by the University to make an infringing copy he was authorized by the University to do what he did. Of course, the University did not intend that anyone should use its facilities for the purpose of obtaining evidence against it, but what Mr. Brennan did was nevertheless within the general authority given to all persons entitled to use the library.
In these circumstances I hold that the University authorized the act of Mr. Brennan in making the copies in question which, as I have held, were infringing copies.”
The meaning of the word “authorise” has been considered on a number of occasions, particularly as to the degree of knowledge of the employer of the conduct, the power to prevent the conduct and the measures taken, if any, to prevent it happening in the future.
Moorhouse (supra) itself referred to Adelaide Corporation v Australasian Performing Right Association Ltd. (1928) 40 CLR 481. The question was whether the Corporation “permitted” the Town Hall to be used for a performance that would infringe the copyright of the respondent. The Corporation had been informed that a song in which the respondent had copyright would be sung without its authority, but the Corporation did nothing to prevent it. The majority found that, on the facts of the case, no inference should be drawn that the Corporation “permitted” the song to be sung and hence there was no infringement of the copyright by the Corporation. There were, however, two dissenting judgments that are relevant to the present discussion even though they deal mainly with the word “permit”. Knox CJ said this (at 487):-
“I agree with the learned Judges of the Supreme Court in thinking that indifference or omission is ‘permission’ within the plain meaning of that word where the party charged (1) knows or has reason to anticipate or suspect that the particular act is to be or is likely to be done, (2) has the power to prevent it, (3) makes default in some duty of control or interference arising under the circumstances of the case, and (4) thereby fails to prevent it. This statement of the legal position was not challenged in argument before this Court.”
Isaacs J held (at 490) that the word “permit” should not be restricted to narrow limits. Later (at 494-5) His Honour held that the Corporation has “permitted” the infringement because it proceeded with the contract of hire and allowed the hall to be used for the performance of the song in the knowledge it was going to be so used.
In Shellharbour Golf Club Limited v Wheeler & Ors [1999] NSWSC 224 (24 March 1999), Studdert J considered the Anti-Discrimination Act, 1977 (NSW) which is similar to the South Australian EO Act. After referring to Gibbs J in Moorhouse (as referred to above), Studdert J said this:-
“58 The decision in University of New South Wales v Moorhouse has been much followed in copyright cases and the broad concept of ‘authorise’ reflected in the above passage has been frequently applied for the purposes of statutory construction under the copyright legislation. For present purposes, bearing in mind the nature of the Anti-Discrimination Act, I consider that the word ‘authorise’ should be given an equally broad meaning to that given to the word in the copyright cases. Accordingly, it seems to me that for the purposes of s 53 the word ‘authorise’ embraces ‘sanction, approve, countenance and permit’. Permission may be inferred from inactivity and indifference where the person sought to be made liable is aware that some particular behaviour may occur.”
S.53(1) of that Act provided as follows:-
“(1) An act done by a person as the agent or employee of the person’s principal or employer which if done by the principal or employer would be a contravention of this Act is taken to have been done by the principal or employer also unless the principal or employer did not, either before or after the doing of the act, authorise the agent or employee, either expressly or by implication, to do the act.”
The onus under s.53 of the NSW Act is different from that under the EO Act. Under s.53 the onus on the issue of authorisation is cast on the principal or employer; it is for the principal or employer to establish that it did not authorise the act of the agent or employee (Samuels Real Estate v Lamb & Anor (1998) EOC 92-923 per James J). The onus under the EO Act is cast upon the party seeking damages or seeking to prove vicarious liability that the employer or agent “instructed, authorised or connived at that act” (of sexual harassment). We would respectfully adopt what Studdert J said in Shellharbour Golf Club (at para.58 quoted above), particularly the last sentence.
The only other case to which we would like to refer is Caton v Richmond Club Limited [2003] NSWADT 202 (27 August 2003) (EO Division). The decision of that Tribunal is useful in two respects. The first is that there was an adoption of what Studdert J said in Shellharbour para.58 (as above). Secondly, it made remarks, with which we respectfully agree, concerning whether the making of a complaint is necessary before an employer needs to act (para.143):-
“143 It is not enough to wait for a complaint before appropriate action needs to be taken by managers/employers. An employer’s obligation to prevent discrimination, harassment and victimisation does not begin at the time that a formal complaint (e.g. a written note from, or documentation provided by, a complainant to an employer, or a written note from, or documentation provided by, an employee or manager witnessing the behaviour) is made. Certainly, if at the time a formal complaint is made, it is the first time that the employer is made aware that potentially discriminatory, harassing or victimising behaviour has occurred, and the employer takes appropriate and immediate action in response including reasonable steps to prevent contravention of the Act, the employer is more likely to have met the requisite statutory standard to avoid vicarious liability. However, if an employer is made aware informally of potentially discriminatory, harassing or victimising behaviour (e.g. observations of staff verbally conveyed to management, management observing relevant behaviour and so on) prior to a formal complaint being made, and the employer takes no action until the formal complaint is made, the fact the employer takes appropriate and commensurate action in response would not be sufficient to avoid its being found vicariously liable.”

Under this heading it remains for us to consider what the Public Trustee knew of Mr H’s behaviour at what stages, what it did about his behaviour and what it did not do.
We have already said that we generally accept the evidence of Mr McKibbin as to the nature of Mr H’s conduct from about May, 2000 until August, 2002 (see para.11). We have also accepted that Mr McKibbin complained to Mr O’Neill on a number of occasions, but that insufficient was done by management at an early stage to stop Mr H’s conduct and protect Mr McKibbin (para.13). We mention that the person occupying the position of Public Trustee changed during the period under consideration and Mr McKibbin praised the efforts of Ms O’Loughlin upon her appointment.
We now look at Mr O’Neill’s evidence more closely.
Mr O’Neill was aware of the breakdown in the working relationship between Mr H and Mr McKibbin before the letter of 17th May, 2000 (exhibit P8) and the letter further highlighted that fact (TP264). Mr O’Neill said, and we accept, that there was no mention of sexual allegations before and at the Hilton Hotel.
Going forward in point of time, when Mr McKibbin made his complaints in exhibit P2 dated 12th August, 2002, including the annexure that referred to specific instances of sexual and racial harassment, those complaints were acted upon quickly and decisively. However, the same cannot be said for the period between about May, 2000 and August, 2002. Although Mr O’Neill did speak to Mr H during that period concerning his management performance, this is what he said about sexual harassment (TP269):-
“....In relation to concerns raised about sexual harassment, I said to Mr McKibbin that these are quite serious allegations and that in order for us to proceed with them effectively, that we would need more details, we need clarification in relation to those complaints in order to proceed with them.”
There are two further references to the evidence, the second at length, that need to be made (at 278):-
“Q.You did make a comment concerning my letter of clarification of my complaints relating to Mr H....’s sexual proclivities. You have, from memory, attested to the effect that I did use words such as ‘touching himself around the groin area, the crotch area’, would that be correct.
A.Yes.
Q.Because I’m just wondering what further clarification would be required because I do recollect on many occasions saying ‘he touches himself and he rubs himself’ and I’m not sure what further clarification you would require rather than that particular description of his behaviours. Should I have elaborated on that or taken it to another degree because I’m not quite sure how much further I could go other than saying he was touching himself, if that wasn’t sufficient.
A.I consider them to be fairly serious allegations and I felt it deserved further clarification as to precisely what the concern was. Sometimes I think you might recall that you referred to it as ‘stuff’, so I had concerns and difficulties in trying to deal with that and I felt that the advice I gave you in relation to if we could clarify the nature of the complaint then we would be in a position to proceed in much the same way as we proceeded in May 2000 and then, subsequently, in August 2002.”
And later (280-285):-
“Q.At some stage, and I’m not talking about August 2002, much earlier I’m talking about, were allegations made by Mr McKibbin that were at least less specific about Mr H...., talking about sexual behaviour.
A.On occasions the comments made were more specific than on other occasions, so on some occasions the comments were around ‘stuff’ and on other occasions Mr McKibbin referred to, I think the main comment was around Mr McKibbin touching his groin area, but only in that sort of sense, they weren’t specific in relation to the way that these things arose.
Q.When he referred to it as ‘stuff’, did you believe that he was speaking about the sexual antics, so-called sexual antics.
A.Yes, and that’s when I would say to Mr McKibbin that ‘We need more clarity, we need a complaint to move forward with this so that we can deal with this properly’ and on each occasion I commented to him that I would speak to Mr H.... about his behaviour generally but in order to move forward with these other comments that we would need clearer details in relation to that and a commitment from him that we were actually making a complaint, and I was never able to get that commitment from him.
Q.I assume it was not necessary in your view for a complaint to be in writing.
A.No, not necessarily.
Q. What’s the difference between a complaint that’s a complaint and a complaint that’s not a complaint.
A.Yes. Well, I suppose I felt it was in the context of Mr McKibbin coming to see me about a whole raft of different issues and he would also throw in these other comments to some extent further justifying his reasons for his concerns about Mr H.... as a manager, and I would say to him ‘Look, those management issues I can address because I’ve already given Mr H.... some instruction in relation to how he should behave as a manager, and I will further clarify that with him’, and I did in each occasion. In relation to these other issues, they were unclear and I was not at any time given a commitment that Mr McKibbin was actually making a complaint. He indicated to me on one occasion that he was concerned that if he made a complaint, then he would be victimised. I assured him that he could not be victimised in the Public Trustee as a result of making any complaint.
Q.Irrespective of whether or not he wanted to regard them as a complaint, did you regard them as a complaint about matters of a sexual nature. I’m not talking about management style and administrative matters; I’m talking about matters that could be construed as sexual harassment.
A.I suppose relating them to the nature of the policy at the time, in that it was – the policy was proposed that it was up to the complainant to complain and not Public Trustee to come to a position as to whether someone had complained or not. I couldn’t ever get an understanding from him whether he was just having a chat with me about a whole raft of issues or whether he was seriously making a complaint about sexual harassment.
Q.From what he said to you, did that appear to amount to or may have amounted to sexual harassment.
A.I think those things are to some extent a perception on the part of the person who’s caught up in those events. They may have been.
Q.Once he had told you for the first time, you then became aware of at least that potential.
A.Yes.
Q.Although Mr McKibbin may not have done anything further with respect to complaints of that nature, did you or did the organisation do anything about them.
A.The two things that we tried to do, in the absence of having a complaint, the two things that we did was on the one hand frequently counsel Mr H.... about his performance with a view to trying to avoid any of those sorts of situations arising. So what I asked Mr H.... to do was to create a very formal management style, to avoid unnecessarily interacting with his work group, to set up very formal case loads with his staff, to formally meet with those staff in a meeting environment each week and then to provide me with reports on the progress of each of their case loads on a weekly basis, and then more formally on a monthly basis. So I felt that in doing that I was at least in a position to reduce the likelihood of those risks. The other thing I tried to do was provide Mr McKibbin with other employment opportunities to remove him from the sorts of risks that were potentially there. So that explained the offer which Mr McKibbin took up on of travelling to Sydney and being trained on a new client relationship management application that we introduced, and then subsequently offering him a proposal position in a project away from Mr H.... in implementing that software. That would have given Mr McKibbin more than 12 months away from that IT group and I felt that would have been a good strategy for avoiding these sorts of problems.
Q.Do I assume from your answer that in speaking and dealing with Mr H.... after Mr McKibbin mentioned matters of a sexual nature and potentially sexual harassment, that you did not express, in your discussions with Mr H...., complaints of a sexual nature or relate those things.
A.The only time we raised those issues with Mr H.... was in the August 2002 meeting.
Q.So by the time August 2002 came around, you would have had, what, half a dozen or a dozen separate complaints by Mr McKibbin about matters of a sexual nature on the part of Mr H....
A.I couldn’t be definite about the number, but I don’t believe that it was that level of contacts from Mr McKibbin about sexual harassment.
Q.How many do you estimate it was in that period of time.
A.He certainly came and saw me on a number of occasions in relation to a whole raft of management issues, but they were on just some occasions did he raise issues about his concerns about the sexual antics of Mr H...., so four plus occasions, approximately that number, but one of the situations was that each time I spoke to him, and the reason I haven’t got a strong recollection of this is that on each occasion that I spoke to Mr McKibbin, I was very much of the impression that he was satisfied with the advice that I gave him and we had resolved to move forward in one way or another.
Q.But he was still making that occasional complaint, wasn’t he, relating to sexual matters.
A.Yes.
Q.Had you heard from anybody else, leaving Mr McKibbin to one side, that Mr H.... was behaving in a sexually inappropriate manner towards any other employee.
A.No.
Q.Did you learn of the particular use that a whiteboard was being put to in their work area.
A.I have subsequently heard about the whiteboard, but not during the period May 2000 to August 2002.
Q.So I take it from that you’re unaware of the way in which certain notations are put on there to indicate a certain level of interruption by him or a sexual behaviour of a particular type made by him.
A.That’s correct.
Q.You did not specifically raise with Mr H.... his, I put it loosely, his sexual behaviour apropos Mr McKibbin until the written report of August 2002.
A.That’s correct.”
We find that Mr McKibbin raised with Mr O’Neill, on a number of occasions before August, 2002, the sexually suggestive conduct and behaviour of Mr H. We are unable to say on how many occasions Mr McKibbin did so, but we consider it to be a significant number. We also find that Mr McKibbin was raising these matters in the form of an oral complaint. The precise status of those complaints was the subject of dispute. Certainly there was no need for any such complaint to be in writing. In our view, the number of complaints made by Mr McKibbin and the nature of the conduct about which he was complaining, made it imperative that management intervene at an early stage. This management failed to do. The necessary policies were in place but their application was misunderstood or misguided.
Amongst the options available to management was formal counselling of Mr H, making alterations to the management structure or completely separating their work areas. There is no reason why Mr McKibbin should have to find another position or even be put in the position where he felt he should be looking for another position.
In making these comments and findings, we are all too conscious of the need to proceed with caution when a complaint such as this is made. Allegations such as these are serious with serious consequences if substantiated. Understandably, management would look to the person making the complaint for an indication of how that person wants the complaint treated. When an allegation is made against someone more senior, the person making the complaint may well think his or her position is at risk if a “formal” complaint is made, as distinct from what may be referred to as an “informal” complaint. Such a person may also fear victimisation or being shunned by others. However, the wishes or desires of the person making the complaint are not paramount and cannot be used as a reason for no action by management or inadequate action. As the Attorney-General’s Department statement of Sexual Harassment Policy and Procedures (exhibit P7 – Public Trustee is part of the Attorney-General’s Department for these purposes) makes plain, the employer must take all reasonable steps to prevent sexual harassment and may be held to have authorised it if it is aware of an incident and does nothing.
In our view, in this instance Public Trustee impliedly authorised Mr H’s conduct (and here we are not referring to management conduct or style) by doing nothing about Mr McKibbin’s complaints or not doing sufficient about them. In our view, Public Trustee has vicariously authorised that conduct. (We mention again that, on the facts of this matter, that conduct did not amount to sexual harassment within its meaning in the EO Act. It may, however, have progressed to that stage.)
It also follows from our conclusion that, had Mr H’s conduct amounted to sexual harassment, Mr McKibbin may have established a right to damages assuming there were not other legal impediments in his path.
We now turn briefly to the remaining issues.
Interplay with the WR&C Act
One of the objections taken on behalf of the respondent is that the provisions of s.54 of the WR&C Act mean that the recovery of damages can only be achieved by an application of the provisions of that Act.
In this regard, Mr McKibbin referred to Smart v State of South Australia [2002] SADC 59 where a similar point was taken. We see no reason to differ from that decision. In our view, not only does this Tribunal have jurisdiction to entertain a damages claim for sexual harassment arising out of employment, it also has the power to award damages for an injury or injuries not otherwise the subject to compensation pursuant to the WR&C Act.
Having said that, there are a number of reasons why an award should not be made.
First, Mr McKibbin had a compensable disability that was the subject of WorkCover payments. Included in that disability, and therefore those payments, was hurt and injury to his feelings arising from his employment. In other words, his claim for damages under the EO Act has been subsumed under the WorkCover payments. His claim for WorkCover payments was for the very same matters the subject of the present claim (see medical and psychiatric reports). Mr McKibbin is not able to obtain damages twice for the same injury.
Secondly, the making of the complaint that founds the basis of the Commissioner’s and this Tribunal’s jurisdiction must be made, in this case, within six months of the last of the acts of alleged sexual harassment. The Commissioner received the complaint on 27th February, 2003. In that event, the last act should have been on or after 27th August, 2002. On the evidence, any such last act occurred before 12th August, 2002. Hence the complaint is out of time and provides a further basis upon which no award is able to be made. There is also the problem that Mr McKibbin was not an employee for some of the time he was subjected to this conduct.
Settlement agreement
We do not find it necessary to discuss at length the reach of the Settlement Agreement dated 2nd July, 2003 (exhibit R1). We do not need to decide whether that agreement can preclude scope for a finding of vicarious liability of the organisation itself with the possibility of an order pursuant to s.96 of the EO Act (see J F & B E Palmer Pty Ltd v Blowers and Lowe Pty Ltd (1987) 75 ALR 509).
With regard to this complaint, we determine that no contravention of the EO Act by Public Trustee has taken place.
The complaint is dismissed.