Menere v Poolrite Equipment Pty Ltd
[2012] QCAT 252
•15 June 2012
| CITATION: | Menere v Poolrite Equipment Pty Ltd and Anor [2012] QCAT 252 |
| PARTIES: | Nicholas John Menere (Complainant) |
| v | |
| Poolrite Equipment Pty Ltd (First Respondent) Kamal Singh (Second Respondent) |
| APPLICATION NUMBER: | ADL001-09 |
| MATTER TYPE: | Anti-discrimination matters |
| HEARING DATE: | 25 October 2010 3 May 2011 31 January 2012 Written submissions received by 19 March 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | N Jarro, Member |
| DELIVERED ON: | 15 June 2012 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The second respondent must pay to the complainant compensation of $8,000 within 30 days. 2. Each party bear their own costs. |
| CATCHWORDS : | ANTI-DISCRIMINATION – complaint of sexual harassment in workplace – co-workers – assembly line Anti-Discrimination Act 1991, ss 118-120, 133, 174A, 209, 210 Johanson v Blackledge (2001) 163 FLR 58 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Nicholas Menere (self represented), assisted by Peter G Williams & Associates on 25 October 2010 and 31 January 2012 |
| RESPONDENTS: | First respondent Poolrite Equipment Pty Ltd (self represented) and assisted by Livingstones Australia on 25 October 2010 |
| Second respondent Kamal Singh (self represented) |
REASONS FOR DECISION
The complainant seeks financial compensation against the first and second respondents. He claims he was sexually harassed by the second respondent in the first half of 2008. The first respondent employed both the complainant and the second respondent as casual assembly line workers.
On 23 February 2009, a complaint was lodged with Anti-Discrimination Commission Queensland. The initial complaint made allegations against another work colleague, but in September 2009, the complainant elected not to pursue the allegations against the other work colleague. Instead he focused his claim on the nominated first and second respondents and alleged contravention of s 118 (and by implication s 133) of the Anti-Discrimination Act 1991. In his complaint lodged with the Queensland Civil and Administrative Tribunal, the complainant sought an apology from both respondents, an order for payment of money and costs.
Jurisdiction
In accordance with ss 9 and 10 of the Queensland Civil and Administrative Tribunal Act 2009 (“the QCAT Act”), the Queensland Civil and Administrative Tribunal (“the Tribunal”) has original jurisdiction including jurisdiction conferred upon it under an enabling Act. The enabling Act in the present instance is the Anti-Discrimination Act 1991 (“the Act”). By virtue of s 174A of the Act, the Tribunal can hear and decide the complaint said to have contravened the Act. If the complaint is proven, the Tribunal can make an order under s 209. In addition, s 210 of the Act enables the Tribunal to order a dismissal of the complaint.
Section 118 of the Act bans a person from sexually harassing another person. Section 119 of the Act provides:
119 Meaning of sexual harassment
Sexual harassment happens if a person -
(a)subjects another person to an unsolicited act of physical intimacy; or
(b)makes an unsolicited demand or request (whether directly or by implication) for sexual favours from the other person; or
(c)makes a remark with sexual connotations relating to the other person; or
(d)engages in any other unwelcome conduct of a sexual nature in relation to the other person;
and the person engaging in the conduct described in paragraphs (a), (b), (c) or (d) does so –
(e)with the intention of offending, humiliating or intimidating the other person; or
(f)in circumstances where a reasonable person would have anticipated the possibility that the other person would be offended, humiliated or intimidated by the conduct.
The complainant asserts that the second respondent’s conduct included the behaviour contemplated in subsections 119(a), (c) and (d) of the Act, and that the second respondent did so, if not with the intention of offending, humiliating or intimidating him, but at least in circumstances where a reasonable person would have anticipated the possibility that he would be offended, humiliated or intimidated by his conduct.
Section 120 of the Act dictates the circumstances relevant in determining whether a reasonable person would have anticipated the possibility that the other person would have been offended, humiliated or intimidated by the offender’s conduct.
Legal Representation
On 25 June 2010, Senior Member Endicott directed that the parties be self-represented in the hearing. Despite this, on the first day of the hearing the complainant and the first respondent attended the hearing with their representatives and on the final day of the hearing, the complainant attended with his representative. The representatives were permitted to assist their respective clients. In addition, at the end of the first day when it became apparent that Dr Bartholomew Klug was required by the first respondent for cross examination, it was directed that the parties’ legal representatives were permitted to adduce evidence from him if they elected.
It is clear this hearing spanned over a significant period of time and clearly goes against one of the important functions of the Tribunal, namely to ensure that matters are conducted in a way that is informal and quick. However due to the unavailability of witnesses and parties, the matter was unable to be expedited in the usual fashion.
Complainant’s Evidence
The complainant was a 50 year old man when he commenced working for the first respondent on 25 February 2008. He has two adult children. He performed the role of casual assembly line worker on what was known as the skimmer (pool fitting) line. There were six production lines in the first respondent’s assembly complex, including:
a.a skimmer line – which was, according to the complainant, manned by both Shantel Flay (formerly Bowlin) and himself;
b.a filter line – which was, according to the complainant, manned by Lee Morton and the second respondent;
c.a pump line – which was, according to the complainant, manned by Jimmy Roe (who was the line leader for that production line);
d.a lights line;
e.a chlorinators line; and,
f.a cell line – manned by Tamara Marini.
Piping Incidents
The complainant gave evidence that the filter line (on which the second respondent worked) was adjacent to the skimmer line where he worked. By the second week of the complainant’s employment, the complainant was exposed to what he described as “a rather drawn out tirade of a pipe stroking exhibition” by the second respondent. Initially the complainant laughed it off because he had only recently started working for the first respondent and was not familiar with the different personalities at work. He politely asked the second respondent to stop, however the second respondent persisted. According to the complainant, there were multiple occasions where the second respondent asked him to go to the toilet with him, to which the complainant initially construed to be a joke. However because of the repetitiveness, the complainant became concerned. For example, in early March 2008, the complainant was talking to Mr Lee Morton in the adjacent filter line as Mr Morton was explaining to the complainant about the importance of plastic clips on the weir doors. The complainant saw the second respondent standing right next to Mr Morton and “again he had a piece of long pipe in his hand and was rubbing and stroking it.” The complainant “was quite disgusted by what [he] saw”. He said that Mr Morton must have seen the complainant’s facial reaction as Mr Morton then turned towards the second respondent and told him words to the effect: “Are you right there Kamal”. The complainant indicated that there was nothing ever recorded or acted upon as a result of that particular incident.
Shortly after this incident, on or about 13 March 2008, the complainant indicated that when working on the filter assembly line, the second respondent walked up behind the complainant and deliberately rubbed his groin area into “my backside”. Again, the complainant was shocked about what took place.
Another incident took place on or about 18 March 2008 when the second respondent walked up to the complainant who was bending over the side on one of the workbenches and deliberately placed his groin on the complainant’s forehead. This incident was witnessed by Mr Morton because Mr Morton said to the second respondent “What the hell do you think you are bloody doing?”
On or about 10 April 2008, the second respondent yelled at the complainant: “Nick, do you like this one?” The complainant looked over and saw the second respondent stroking a large white pipe. The complainant yelled at the second respondent. He indicated that Mr Morton witnessed the incident, however, “chose not to do anything about it despite being the line leader of our area”. According to the complainant, he believed that “a lot of people should have taken the incidents more seriously before it went out of hand – especially the junior management and line leaders that worked with us on the factory floor”.[1]
[1]Mr Lee Morton was not called on behalf of the complainant nor was his position readily determined on the evidence presented before the Tribunal.
Another similar incident occurred on or about 6 June 2008 when the complainant saw the second respondent stroke “a steel tool shaped in the figure of a penis, which was used as a hand hammer, to assemble the items in the production line” in the complainant’s direction.
Handwash Soap Incidents
The complainant recalled that on three separate occasions, the second respondent would return from the bathroom with some handwash soap squirted on a piece of tissue paper with the connotation of bodily fluid and asked the complainant: “is this the right colour?” Not amused by this, the complainant yelled at the second respondent and said something to the effect of: “Get out of here you sick bastard!”
For instance on or about 17 April 2008, the second respondent returned from the bathroom with a piece of toilet paper with some liquid or gel like substance on it and was “very keen” to show it to the complainant however “at the time Zijada [Jonvic, the warehouse manager] was on her inspection tour around the factory floor [and the second respondent] must have seen Zijada looking over in our direction, as he quickly hid the tissue and rushed back to his workbench”. Another similar incident occurred on 2 May 2008 and other similar events took place on 15 and 23 May 2008. The complainant indicated that on 31 May 2008, he helped the second respondent move some furniture from the second respondent’s house.
Kitchen Incident
On the morning of 23 June 2008, the complainant arrived at work at around 6:50am. He was assigned to work on the cell production line to assist with the cleaning of chlorinated plates. As there were no plates in the factory, he went to the kitchen to wash the metal plates before they were inserted into the chlorinator. At no time was he aware that the second respondent snuck up behind him. After cleaning one batch of metal plates, the complainant lifted them out of the kitchen sink and proceeded to place them on the floor. When returning his body to an upright posture after bending over, the complainant recalled that he “felt someone grab me from behind and proceeded to thrust his pelvis and genitalia against my rear end in three successive pumps”. Shocked by this, the complainant spun around and pushed the person away. It was the second respondent. The complainant yelled at him and said: “You fucking sick bastard. You need help”, to which the second respondent replied: “No, you are the sick one”. The complainant was very shocked and appalled by what had just taken place and he walked out of the kitchen in distress, leaving the metal plates as they were.
On the few days following the kitchen incident, the second respondent would frequently gesture in the complainant’s direction “with his hands and tongue – an image which seemed something like he was trying to part two pieces of flesh with his bare hands and licking something within it”.
The complainant became very anxious when going to the toilet and would often look behind him prior to entering the toilet. On two occasions, the complainant could see the second respondent leave his work station and approach the toilet whenever the complainant was there.
The day after the kitchen incident, the complainant approached Jimmy Roe who was the supervisor/leading hand in the production area which included the filter assembly line.[2]
[2] This is denied by Jimmy Roe whose evidence was relied upon by the respondents.
A few days after this (and much to the complainant’s relief), the complainant was relocated away from the production line and on to the warehouse in an adjacent room. It was around this time, that he approached Mr Stanley Klip, the health and safety officer, about the incident on 27 June 2008. Mr Klip apparently offered to take the matter further and “report it to the big bosses”. The complainant at that stage declined. On his return to work the following Monday, the complainant approached Mr Klip who discouraged the complainant from pursuing the matter further as Mr Klip reminded the complainant that he extracted a pornographic picture from Picture Adult magazine of a female person wearing an artificial “strap on” penis. It is not disputed that the complainant previously placed this picture in a public area within his workplace. The complainant said he did this as a joke and it was directed to another work colleague. The complainant stated that Mr Klip then indicated to him that the displaying of the naked picture at work was unlawful. The complainant formed the view that Mr Klip was trying to discourage him from taking his report of the kitchen incident further.
Despite this, the complainant indicated that at work the following morning he was approached by Zijada Jonvic, the warehouse manager, who wanted to know more about the particular incident involving the second respondent. The complainant said that Jeffrey Olney, the general manager of the first respondent, requested to see him about the incident.
According to the complainant, it was principally the kitchen incident which caused him to be psychologically and emotionally scarred and he felt he was publicly humiliated in front of his fellow co-workers because of the actions of the second respondent.
The cross-examination of the complainant focused largely on allegations of on-going workplace banter between the complainant and the second respondent sufficient to minimise the impact of the complaints.[3] The complainant accepted that when he initially started there was an induction process which included receiving an induction handbook. He conceded the induction handbook went into detail about harassment and workplace bullying issues. The complainant stated that he did not complain to his supervisor or manager about the allegations concerning the behaviour of the second respondent because “Lee Morton witnessed Kamal and I” and it appears that he placed reliance upon Mr Morton to tell the second respondent to refrain from harassing the complainant. The complainant was reluctant to become involved too much because “it wasn’t [his] place because [he] was just starting a job and did not want to create or cause enemies”.
[3]This overlooks though the application of s 119(f) of the Act and in any event, the complainant denied any banter between him and the second respondent.
The complainant conceded that the second respondent’s behaviour ceased once he was transferred to another area and more particularly after the second respondent was dismissed in early July 2008.
In cross-examination, the first respondent went to the task of identifying why the complainant’s oral evidence differed from his filed statements vis-a-vis the complainant’s attempts to raise the harassment with Lee Morton. It was the complainant’s view that the line managers “did not step up to the mark”.
When challenged about the Picture Adult magazine incident, the complainant indicated that it was a completely different incident.
When asked about the effects of the harassing behaviour, the complainant indicated that his GP, Dr Hart, referred him to an Anthony Balkin. He saw Anthony Balkin. No evidence was led by Mr Balkin. The complainant confirmed that he was not receiving any treatment in respect to the effects of the behaviour. He did not want to take any more pills and was trying to “get over it” himself, and did not seek treatment from his GP.
The second respondent did not cross-examine the complainant. He chose not to cross-examine any of the witnesses.
On the final day of hearing, the complainant also called Ms Shantal Flay and Dr Bartholomew Klug, Psychiatrist. In respect to Dr Klug, he was a necessary witness as the complainant relied upon two reports dated August 2008 and the first respondent’s insistence that he be available for cross-examination.
Ms Flay was employed by the first respondent from August 2007 until approximately December 2009 in a capacity of factory assistant. She worked with the complainant and the second respondent on a daily basis. She corroborated the complainant’s evidence that on 23 June 2008 an incident took place involving the complainant and the second respondent, whereby the second respondent “grabbed Mr Menere from behind, that is, his hips, and once grabbing Mr Menere’s hips, Mr Singh pulled Mr Menere backwards with force thereby Mr Menere’s buttocks was embedded in Mr Singh’s pelvis”. She indicated that this caused the complainant to yell at the second respondent words to the effect: “Keep away from me, you sick bastard”. She also corroborates the complainant’s versions concerning the piping incidents. Ms Flay was unable to identify whether or not the complainant raised the issue with his superiors, including, for instance, Mr Morton. Further, her evidence did not indicate whether Mr Morton witnessed the events. Ms Flay impressed me as a witness doing her best to truthfully recall events that happened a number of years ago as accurately as she could.
Dr Klug was available for cross-examination on the final day of hearing. He provided two reports dated 21 and 27 August 2008. In his evidence, he indicated that he saw the complainant on 21 August 2008 for the purpose of a psychiatric assessment and to report. He took a detailed history from the complainant about the harassing events. He noted the complainant consulted his GP and opined that the symptoms (which included flashbacks, intrusive mental images of the second respondent, sleep problems, mood changes, loss of energy and easily tired, as well as anxiety and other sequelae) were consistent with the diagnosis of Post Traumatic Stress Disorder associated with significant anxiety and depression. Dr Klug was of the view that the symptoms were entirely as a result of the incident which occurred in June 2008 and other preceding incidents which had occurred throughout the complainant’s period of employment with the first respondent. In Dr Klug’s view, the complainant required both ongoing anti-depressant treatment and psychological therapy preferably under the combined care of a psychiatrist and clinical psychologist. He described the complainant’s impairment as “partial and temporary”. In his supplementary report of 27 August 2008, Dr Klug recommended that the complainant required lengthy treatment over a duration of 6-12 months, at a cost of at least $3,000 for psychiatric therapy.
Under cross-examination, Dr Klug accepted that any patient could withhold details in order to contextualise information. He accepted that an incorrect diagnosis could be obtained if a patient was not truthful. Rightly so, Dr Klug accepted that his opinion was based on the complainant’s description of events, and how the complainant had been affected by the events.
Respondents’ Evidence
The following persons gave evidence in support of the respondents’ position:
a. Stanley Klip;
b. Jeffrey Olney;
c. Jimmy Roe;
d. Chris Casey.
In addition, the second respondent gave evidence.
The applicant did not seek to cross-examine Messrs Olney, Roe and Casey. Accordingly, each of their respective statements were not challenged.[4]
[4] Exhibits 2, 3 and 4.
Mr Klip, now manager of the first respondent’s maintenance department, was the Workplace Health & Safety Officer at the time of the relevant events complained of by the complainant. He was not the complainant’s supervisor nor manager. He provided a statement dated 15 September 2010.[5] According to Mr Klip, his role as the Workplace Health & Safety Officer was to induct new employees into the business which included, amongst other things, issuing an employee handbook stipulating the conditions of employment, the expectation of the employer and the responsibilities placed on employees regarding the expected conduct in the workplace. Mr Klip required employees to sign to indicate that they had received and read the handbook. The handbook was placed before the Tribunal, and identifies, amongst other matters, the company’s policy concerning sexual harassment. The policy is in plain English and relevantly indicates that the first respondent considers such behaviour as
“an unacceptable form of behaviour that will not be tolerated under any circumstances. ... It is the goal of Poolrite to create an environment free from sexual harassment and is the responsibility of all employees to support this goal. Managers and supervisors must ensure that all employees are treated equitably and are not subject to sexual harassment. They must also ensure that people who make complaints, or witnesses, are not victimised in any way. If you believe you are being sexually harassed you must take action. Individual employees should appropriately and clearly discourage unwelcome attention at the time that it occurs. Do not ignore sexual harassment thinking it will go away – often just gets worse. If you believe you are being sexually harassed, you should contact your supervisor or manager and outline the complaint. If your complaint involves your supervisor or manager or you are unable to contact your supervisor or manager, you should raise your complaint with the next level of management”.
[5] Exhibit 5.
Mr Klip stated that in his role he was required to ensure that staff received appropriate training as and when was required. In the context of the relevant incidents occurring in early 2007, a course was arranged for the first respondent’s staff in October 2007 by Commerce Queensland to receive training on sexual harassment within the workplace. Mr Klip gave evidence that the second respondent attended the training that was carried out in or about October 2007. Mr Klip also indicated that a similar in-house training was done on 18 September 2009.
Insofar as the alleged incidents were concerned, Mr Klip indicated that the complainant saw him on 11 July 2008 (and not on 27 June 2008 as alleged). Mr Klip was approached by the complainant who informed him that the second respondent had “thrust his genitalia against his bum”. Mr Klip then asked the complainant whether he wanted to make a statement or a formal complaint about the incident but the complainant informed him that “he did not want to make an issue out of it”. Mr Klip provided a diary note in support of the meeting.
Mr Klip also indicated that five days later, on 16 July 2008, he was again approached by the complainant who wanted to “talk” to the second respondent. The complainant accepted Mr Klip’s invitation to be present during the meeting. Accordingly, the meeting took place and the complainant and the second respondent “had a discussion about the issues”. Mr Klip recalled that the complainant “asked for an apology from [the second respondent] but [the second respondent] denied the accusations that [the second respondent] had pressed his penis against [the complainant].” Mr Klip recalls that the second respondent did not provide an apology but simply denied the allegations. Mr Klip indicated that the complainant elected not to lodge any written report regarding the alleged incident. He provided a diary note in support of that meeting. It was at this meeting where Mr Klip raised the issue of “a pornographic photograph that had appeared on the noticeboard and which [he] believed was placed there by [the complainant]”.
Under cross-examination, Mr Klip was questioned about the positioning of the photograph as well as the success or otherwise of the Commerce Queensland training, and the complainant, to the best of his ability, tested Mr Klip as to his competency as a workplace health and safety officer. Despite efforts, Mr Klip maintained his version of events and I found him to be a credible witness.
The second respondent did not cross-examine Mr Klip.
The unchallenged evidence of Mr Jeffrey Olney, Operations Director of the first respondent, corroborated Mr Klip’s evidence to the extent of the company’s induction processes and its employee handbook which identified the expectations of the employer as well as the responsibilities of each employee concerning, amongst other matters, sexual harassment and workplace bullying practices.
In addition, Mr Olney’s evidence was that on 18 July 2008 he was approached by his Production Manager, Zijada Jonjic, who advised that there had been a sexual harassment complaint made by the complainant against the second respondent. Immediately, Mr Olney saw the complainant and noted his version of events. Mr Olney “thanked [the complainant] for his time and advised him that [he] would need to interview [the second respondent] as well as the witnesses [the complainant] had indicated had witnessed the incident”. Mr Olney recalled that two work colleagues, Tamara Marini and Shantel Flay, confirmed the actions as described by the complainant had been carried out by the second respondent. Thereafter, Mr Olney then interviewed the second respondent about the allegations. Mr Olney recalls that the second respondent “did not deny any part of the allegations”. At that time, Mr Olney reminded the second respondent that sexual harassment in the workplace was unlawful and “as a company we would not tolerate it in any shape or form”. Mr Olney then terminated the second respondent’s employment “effectively immediately”. He then called the complainant back into his office and advised him of the outcome and apologised to him on behalf of the company and told him “both morally and legally the company and I would always look after the welfare of employees who feel that they have been harassed”. Mr Olney also indicated that he advised the complainant that he should have gone immediately to the Production Manager (as opposed to Mr Klip) and that if he had any problems in the future of any nature at all, that he should come directly to either Mr Olney or the Production Manager. According to Mr Olney, the complainant was thankful “for the swift action” and that “he was now quite happy in his new role”.
Mr Jimmy Roe was another witness whose evidence was unchallenged. He provided a statement dated 14 September 2010. Mr Roe had been working with the first respondent for 7 years and was the Supervisor/Leading Hand in the production area. He knew the complainant. He relevantly provided evidence that he also attended the Sexual Harassment Training Course done by Commerce Queensland in October 2007. Before the training was done, he stated “there was some loose talk on the shop floor with some trivial sexual comments and remarks made and from time to time some crude photos were floating around. After the sexual harassment training was done, people were more cautious in the way that they either commented or spoke on issues of a sensitive nature”. He recalled the complainant “always participating in the banter, the sexual jokes and the dirty talk that went around the shop floor from time to time”. He disputed the complainant’s allegation that he was approached by the complainant on 24 June 2008 about the second respondent’s conduct.
Similar evidence was given by Mr Chris Casey, Warehouse Manager. The evidence of Mr Casey was unchallenged and his statement of 16 September 2010 noted, amongst other things, that the complainant worked in the warehouse for the Queensland Sales section of the business after he and the second respondent could not work together any more. He recalls that after the complainant “had started working there, he told everybody around what had happened between him and [the second respondent], but was doing so in a jocular manner and in a humorous way”. He specifically recalls a discussion he had with the complainant after the second respondent left. This was in the context of banter between the complainant and another person. He recalls telling the complainant “that someone who had put in a complaint of a sexual nature against another should not be making these crude sexual jokes with other people. [The complainant] did not stop at the time, and continued to make sexual jokes and comments to [the co-worker] and vice versa”. He recalls the complainant “always joking and throwing sexual innuendo around when he was working on the filter assembly line and [the complainant] continued with this whilst he worked in the warehouse”.
The second respondent gave evidence including by way of a statement dated 3 May 2011.[6] He denied any incidents as alleged took place by the complainant. I am unable to accept the second respondent’s evidence as either reliable or honest where it conflicts with the evidence of the complainant. At each of those points of conflict in the evidence of the complainant and the second respondent, I prefer and accept the evidence of the complainant. Further I am unable to accept his evidence, particularly in light of the overwhelming evidence of the complainant insofar as the events occurred, corroborated with that of Mr Jeffrey Olney and Ms Shantel Flay.
[6] Exhibit 6.
The second respondent confirmed that he received and read the Employees Handbook and understood the parts particularly concerning sexual harassment. He attempted to minimise his actions to indicate that his behaviour was more in a joking and jovial fashion as opposed to any malice or intention to offend the complainant.
Submissions
In the complainant’s extensive written submissions, it was submitted that the orders for the Tribunal should be that the respondents compensate the complainant for general damages and economic loss of $24,425 as awarded in KW v BG Limited, DP & DF [2009] QADT 7 by way of analogy and that the respondents pay the complainant’s legal costs on an indemnity basis, with such costs to be assessed.
It was submitted that the issues to be determined at law were as follows:
(a)Was the complainant sexually harassed by the second respondent within the meaning of s 118 of the Act?
(b)Was the second respondent’s conduct towards the complainant unsolicited acts, that were made with sexual connotations, that also engaged in unwelcome conduct of a sexual nature within the meaning of s 119(a), (c), (d) of the Act? Was the second respondent’s conduct with respect to subsections (a), (c) and (d) of the Act done with the intention of humiliating the complainant, or would a reasonable thinking person have anticipated that the complainant would for example offended or humiliated or intimidated within the conduct of the second respondent with respect to subsections (e) and (f)?
(c)Whether or not a reasonable person would have anticipated that the complainant would be offended, humiliated or intimidated by the conduct pursuant to s 120 of the Act to include the following:
(i) the effect the conduct would have on the complainant being a same sex male of heterosexual persuasion;
(ii) the effect this form of conduct had on the complainant at his stage of work life by happening to the complainant at the age of 57 and the psychological ramifications of same;
(iii) the effect of the damage the conduct had on the complainant with respect to trusting any person the complainant works with in fostering future working relationships with work colleagues.
(d)If the Tribunal answers in favour of the complainant with respect to any of the aforementioned legislative provisions, then was the first respondent vicariously liable for the second respondent’s conduct against the complainant pursuant to ss 132(1) and (2) of the Act?
In respect to the latter, reliance was placed on the decision of Johanson v Blackledge (2001) 136 FLR 58 at [105] where Federal Magistrate Driver observed that “it is not enough to have a policy. One has to apply it.”
It was submitted that the first respondent was simply paying “lip service” to their failed sexual harassment policy as it failed with the second respondent reoffending again. The complainant submitted that it was incumbent on the first respondent to ensure that its sexual harassment policy had been applied. Whilst it is noted that the sexual harassment policy goes into great detail, the complainant submitted that the first respondent failed to indicate how there was a breakdown with respect to the second respondent’s alleged conduct and how the policy is policed. It was submitted that support for this position was gleaned from the evidence of Mr Klip, Mr Singh, Dr Klug and Ms Flay.
The complainant submitted that the evidence given by Mr Klip should be exercised with some caution in that “he was not a careful witness, he engaged in propaganda, he would answer his questions in a convoluted way, failed to answer questions with respect to [the complainant] and indeed the Tribunal”. I accept the complainant was frustrated by Mr Klip’s evidence, particularly in circumstances where it seemed there were no complaints made about the complainant’s conduct or behaviour until the complainant made a complaint about the second respondent’s actions.
However be that as it may, I am unable to accept the complainant’s submission that Mr Klip’s evidence should be treated with caution. I found Mr Klip to be a credible witness. His evidence was sufficiently persuasive because it was supported by contemporaneous diary entries in relation to his meetings with the complainant around the time of the incidents.
The complainant submitted that the second respondent’s evidence should be given little weight. I accept this submission. I had the opportunity to observe the demeanour of the second respondent whilst giving evidence and do not find his evidence in respect to the incidents as reliable. As indicated earlier I am unable to accept the second respondent’s evidence as either reliable or honest where it conflicts with the evidence of the complainant. At each of those points of conflict in the evidence of the complainant and the second respondent, I prefer and accept the evidence of the complainant.
The complainant sought for the second respondent to be dealt with for contempt pursuant to ss 218(1)(g) of the QCAT Act by virtue of s 216 in that he knowingly gave false evidence at the hearing, as he claimed that his work colleague, Tamara Marini, was “a liar” to the alleged incident vis-a-vis the evidence of Ms Flay and the complainant. I am not prepared to deal with the second respondent for contempt pursuant to the provisions of the QCAT Act, because Ms Marini was not called. Further given the seriousness of the allegations, I am not prepared to make such a finding in circumstances where I find that the evidence was the second respondent’s perception of the situation.
Not unsurprisingly, the submissions of the first and second respondents were similar and merely differed from each other insofar as the application of s 133 of the Act[7] and sought a dismissal of the complaint with costs.
[7] The first respondent in its submissions addressed this issue.
The first and second respondents submitted the evidence of the complainant ought not be accepted. I do not accept this submission because I find the harassing incidents complained of did occur in light of the evidence of the complainant, including that of Ms Flay.
In the alternative, the first and second respondents submitted that the complainant failed to demonstrate that the second respondent intended to cause offence, humiliation or intimidation as required by s 119(e) or that he failed to prove that a reasonable person would have anticipated the possibility that the conduct would offend, humiliate or intimidate.
The first respondent further submitted that an alternative was that the first respondent had taken reasonable steps as required by s 133 of the Act.
Findings
In accordance with s 204 of the Act, it is for a complainant to prove, on the balance of probabilities, that a respondent contravened the Act, subject to any allegation of indirect discrimination or an exemption. This does not apply in this particular instance in circumstances where the discrimination alleged is direct. Further, in accordance with s 208 of the Act, the Tribunal is not bound by the laws of evidence and more relevantly:
(a)must have regard to the reasons for the enactment of the Act as stated in the preamble;
(b)may draw conclusions of fact from any proceeding before a court or tribunal;
(c)may adopt any findings or decisions of a court or tribunal that may be relevant to the hearing; and,
(d)may permit any person with an interest in the proceeding to give evidence.
If a complaint is proven, the Tribunal may make a number of orders as identified in s 209 of the Act. Similarly, pursuant to s 210, the Tribunal may make an order dismissing a complaint.
With the exception of the second respondent, I find that the parties appeared to give evidence to the best of their recollection. Having regard to the evidence presented and relied upon at the hearing of the complaint, I make the following pertinent findings:
(a)The harassing incidents took place, namely:
(i) the piping incidents in March, April and June 2008;
(ii) the handwash soap incidents in April and May 2008;
(iii) the kitchen incident on 23 June 2008.
(b)The harassing incidents were unwelcome conduct of a sexual nature upon the complainant.
(c)The second respondent engaged in the unwelcome conduct.
(d)He did so with the intention of offending, humiliating or intimidating the complainant.
(e)If I am in error in relation to the immediate foregoing finding, the second respondent did so in circumstances where a reasonable person would have anticipated the possibility that the complainant would be offended, humiliated or intimidated by the conduct.
(f)The reaction the second respondent’s conduct indeed caused to the complainant was humiliating and offensive.
(g)The issue concerning the complainant putting a pornographic picture on the noticeboard within the workforce is of little relevance to the harassing events.
(h)The complainant first raised the kitchen incident to Mr Klip on 11 July 2008.
(i)The first respondent had a detailed employee handbook as part of its induction process, which it issued to the second respondent and other employees.
(j)The handbook contained a detailed section dealing with sexual harassment and workplace bullying.
(k)The first respondent caused its employees to undertake training in respect to sexual harassment within the workplace on a number of occasions, both before and after the harassing incidents. By doing so, it did more than merely have a policy in place. It took sufficient positive steps to ensure awareness and attempted compliance with appropriate workplace practices. The first respondent had an appropriate policy in place and took steps to prevent the second respondent and others from contravening the Act through, for instance, undertaking the training courses. As such the first respondent has demonstrated to the requisite standard that it took reasonable steps to enable it to maintain a defence under s 133(2) of the Act.
I therefore find that the complainant has made out his complaint against the second respondent but not the first respondent. The most appropriate order to make pursuant to s 209(1)(b) of the Act is an award of monetary compensation for the complainant’s loss and damage caused by the second respondent’s contravention of the Act.
Compensation
The complainant has suffered considerable hurt as a consequence of the harassing incidents. Although he is not seeking active treatment for the psychological effects as a consequence of being subjected to the second respondent’s conduct, Dr Klug has assessed the complainant’s symptoms as being consistent with Post Traumatic Stress Disorder associated with significant anxiety and depression. In Dr Klug’s opinion, the complainant requires both anti-depressant medication and psychological therapy, preferably under the combined care of a psychiatrist and clinical psychologist. He estimates that such treatment would be in the order of $3,000 for the care of a psychiatrist.
The case submitted by way of an analogy on the complainant’s behalf was the decision of KW v BG Limited, DP & DF [2009] QADT 7. That decision concerned a female team member in the outdoor timber department of a complex who was subjected to unwelcome advances of a sexual nature by two of her male supervisors. The learned Member found that the claims against one of the male supervisors occurred and dismissed the claims against the other male supervisor. The learned Member ordered that the male supervisor and his employer pay to the complainant an amount of $23,425. The calculation of general damages was made in circumstances where essentially the complainant sought treatment from a psychologist on a number of occasions. The expert medical opinion provided a diagnosis of Major Depressive Disorder (partly treated) and assessed that the complainant had experienced severe trauma as a consequence of the sexual harassment.
In the present case, it is to be noted that Dr Klug’s opinion was based on an assessment done some 3½ years ago about events which occurred some 4 years ago. The complainant indicated that he was not receiving treatment because he did not want to take any more pills and he was trying to get over it himself.
In light of this and having regard to the decision of KW v BG Limited, DP & DF, together with the offence, embarrassment, humiliation and intimidation suffered by the complainant, I consider that an amount of $5,000 is appropriate to compensate him for the damage he has suffered as a result of the second respondent’s conduct.
The complainant also made a claim for economic loss but there is no evidence before me that the complainant ought be entitled to be compensated for any economic loss suffered as a result of the second respondent’s harassment, because it appeared that the complainant continued to work with the first respondent until he elected to leave that employment of his own volition and he has since been engaged in meaningful employment.
Insofar as medical expenses are concerned, no evidence was furnished in terms of the complainant’s out of pocket medical expenses incurred to date.
I will allow $3,000 for future medical expenses based on Dr Klug’s evidence. I accept the complainant will require psychological intervention as well but no evidence is before me to make any allowance with respect to that part of his future medical expenses component. Nonetheless, the claim for $3,000 is discounted and reasonable for future treatment including any psychological treatment.
Accordingly, I order that the second respondent pay to the complainant the amount of $8,000 within 30 days.
Costs
Insofar as costs are concerned, none of the parties are able to demonstrate any compelling factor to warrant a costs order in their favour. As was recently stated by Senior Member Endicott in Chivers v State of Queensland [2012] QCAT 166 at [188], under s 100 of the QCAT Act, parties are expected to bear their own costs in QCAT proceedings. However, the Tribunal can order that a party pay all or part of the costs of another party if the Tribunal considers it is in the interests of justice to make such an order. The learned Senior Member noted a decision by his Honour Justice Wilson in Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412 at [29] where his Honour stated:
Under the QCAT Act the question that will usually arise in each case in which costs are sought is whether the circumstances relevant to the discretion inherent in the phrase ‘the interests of justice’ point so compellingly to a costs order that they overcome the strong contra-indication against costs orders in s 100.
One of the factors that can be taken into account when considering whether costs should be ordered is the nature and complexity of the dispute that is the subject of the proceedings. In my view, the dispute was not of a complex nature sufficient to depart from the usual order. In those circumstances, each party is to bear their own costs.
Order
I therefore order that the second respondent pay to the complainant the amount of $8,000 within 30 days.
0