Noble v Baldwin
[2011] FMCA 283
•28 April 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NOBLE v BALDWIN & ANOR | [2011] FMCA 283 |
| HUMAN RIGHTS – Whether sexual harassment and/or victimisation by fellow employee – whether offensive behaviour based on racial hatred – liability of employer. |
| Australian Human Rights Commission Act 1986 (Cth) (formerly Human Rights and Equal Opportunity Commission Act 1986 (Cth)), s.46PO Evidence Act 1995 (Cth), s.140 Racial Discrimination Act 1975 (Cth), ss.18C, 18E Sex Discrimination Act 1984 (Cth), ss.28A, 28B, 94, 106 |
| Aldridge v Booth (1988) 80 ALR 1; [1988] FCA 170 Creek v Cairns Post Pty Ltd (2001) 112 FCR 352; [2001] FCA 1007 Elliott v Nanda and Another (2001) 111 FCR 240; [2001] FCA 418 Hagan v Trustees of the Toowoomba Sports Ground Trust [2000] FCA 1615 Hall and Others v A & A Sheiban Pty Ltd and Others (1989) 20 FCR 217; [1989] FCA 72 Jones v Scully (2002) 120 FCR 243; [2002] FCA 1080 Korczak v Commonwealth of Australia (Department of Defence) (2000) EOC 93-056; [1999] HREOCA 29 Lee v Smith & Ors [2007] FMCA 59 Macedonian Teachers' Association of Victoria Inc v Human Rights and Equal Opportunity Commission and Another (1998) 91 FCR 8; [1998] FCA 1650 |
| Applicant: | TSARA NOBLE |
| First Respondent: | PAUL BALDWIN |
| Second Respondent: | R & P PTY LIMITED |
| File Number: | SYG 437 of 2009 |
| Judgment of: | Barnes FM |
| Hearing dates: | 10, 11, 12, 13 and 26 August 2010 |
| Delivered at: | Sydney |
| Delivered on: | 28 April 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr D Tynan |
| Solicitors for the Applicant: | Newnhams Solicitors |
| Counsel for the Respondents: | Ms K Edwards |
| Solicitors for the Respondents: | Gillis Delaney Lawyers |
ORDERS
The respondents pay to the applicant damages of $2,000 by way of compensation for unlawful discrimination pursuant to s.46PO(4) of the Australian Human Rights Commission Act 1986 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 437 of 2009
| TSARA NOBLE |
Applicant
And
| PAUL BALDWIN |
First Respondent
| R & P PTY LIMITED |
Second Respondent
REASONS FOR JUDGMENT
These proceedings
On 25 February 2009 the applicant, Tsara Noble, filed an application in this court under s.46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (now called the Australian Human Rights Commission Act 1986 (Cth) (the AHRC Act)). Ms Noble alleged breaches by the respondents, Paul Baldwin and R & P Pty Limited (R & P) of the Racial Discrimination Act 1975 (Cth) (the RDA) and the Sex Discrimination Act 1984 (Cth) (the SDA).
R & P provides services, including accounting duties and functions, for companies within a group which import products into Australia. At all relevant times Mr Baldwin was R & P’s National Finance Manager and Ms Noble’s immediate supervisor.
Ms Noble commenced temporary employment in the Finance Department at R & P in December 2003. In March 2004 she was appointed accountant on a part-time basis. She started working full-time in this role in September 2004.
Ms Noble was appointed cost accountant at R & P from 1 January 2008. She last attended work at R & P on 31 March 2008.
In her application to this court Ms Noble alleged that she was “exposed to constant sexual remarks”, sexual harassment and racial comments by Mr Baldwin during her employment at R & P. She claimed that R & P had not responded to her complaints and also that she was victimised after she made formal complaints.
Accompanying the application was a copy of Ms Noble’s original complaint to the Human Rights and Equal Opportunity Commission (HREOC), now known as the Australian Human Rights Commission, and a copy of the notice of termination of her complaint.
The parties filed points of claim and points of defence. These have been amended on several occasions. The points of claim were the subject of interlocutory proceedings.
The applicant ultimately relied on second further amended points of claim filed on 28 July 2010 (the Points of Claim). The respondents rely on amended Points of Defence filed on 25 March 2010 in relation to an earlier version of the applicant’s Points of Claim. However it was confirmed at the hearing that these Points of Defence also applied to the Points of Claim.
In the Points of Claim Ms Noble complained of sexual harassment under the SDA in that Mr Baldwin was said to have engaged in unwelcome conduct of a sexual nature in relation to her whilst at their workplace. Such conduct was said to be that Mr Baldwin:
(a)for the approximate period December 2003 to March 2008, “looked at [Ms Noble’s] breasts almost every time he spoke with her”;
(b)for the approximate period December 2003 to March 2008, “touched his genitalia regularly in [Ms Noble’s] presence”;
(c)on approximately two occasions in or around early 2005, “raised his leg onto [Ms Noble’s] desk, causing his groin to be at [her] eye level, and swung his hips to and fro”; and
(d)on approximately three or four occasions during approximately January 2005 to June 2007 “brushed himself against [Ms Noble’s] breasts”.
In addition the applicant pleads that Mr Baldwin engaged in unwelcome conduct of a sexual nature in her presence while at the workplace in circumstances in which a reasonable person having regard to all the circumstances would have anticipated that she would be offended or humiliated in that it is alleged that:
(a)on a date after June 2007 Ms Noble saw Mr Baldwin raise his leg on to the desk of another female employee of R & P “causing his groin to be at the employee’s eye level, and swung his hips to and fro”;
(b)on approximately 12 occasions during Ms Noble’s employment at R & P she saw Mr Baldwin “brush himself against female employees’ breasts”;
(c)in or around late 2005 Mr Baldwin made a comment of a sexual nature to Ms Noble about Marny Hilson (a colleague) regarding the “sexual orientation of females” and the “sexual desires and requirements of females, particularly ‘older’ females”;
(d)in or around April 2006 and December 2006 Mr Baldwin made comments of a sexual nature to Ms Noble regarding the “size of females’ breasts” and the “employment of females based on the size of their breasts”.
The applicant claimed that R & P was vicariously liable for these alleged unlawful actions of Mr Baldwin pursuant to s.106 of the SDA.
Ms Noble also claimed that Mr Baldwin victimised her within s.94 of the SDA in circumstances where she was given a formal warning “in relation to an incident that occurred in March 2008 in which it was alleged that [she] struck another employee’s face”. Ms Noble’s initial contention that R & P also victimised her was not pursued.
In addition, Ms Noble alleged in the Points of Claim that Mr Baldwin committed an action in breach of s.18C of the RDA which consisted of referring to her (a person of “mixed ethnicity”) as being “latte coloured”. She did not press a claim about comments made to her about persons of Filipino, Chinese and Fijian descent. Ms Noble claimed that R & P was vicariously liable for such action under s.18E of the RDA.
Ms Noble claimed to have experienced “[p]ain, suffering, anxiety, loss of motivation and enjoyment of life”, as well as a “psychiatric disorder and injury, being an Adjustment Disorder with Depressed and Anxious Mood” as a result of this conduct. She seeks damages for both economic and non-economic loss.
The legislation
Ms Noble alleged that Mr Baldwin engaged in actions that were in breach of s.18C(1) of the RDA, which is as follows:
(1) It is unlawful for a person to do an act, otherwise than in private, if:
(a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and
(b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.
(2) For the purposes of subsection (1), an act is taken not to be done in private if it:
(a) causes words, sounds, images or writing to be communicated to the public; or
(b) is done in a public place; or
(c) is done in the sight or hearing of people who are in a public place.
(3) In this section:
"public place" includes any place to which the public have access as of right or by invitation, whether express or implied and whether or not a charge is made for admission to the place.
It was contended that R & P was vicariously liable for such conduct of Mr Baldwin under s.18E of the RDA which is as follows:
(1) Subject to subsection (2), if:
(a) an employee or agent of a person does an act in connection with his or her duties as an employee or agent; and
(b) the act would be unlawful under this Part if it were done by the person;
this Act applies in relation to the person as if the person had also done the act.
(2) Subsection (1) does not apply to an act done by an employee or agent of a person if it is established that the person took all reasonable steps to prevent the employee or agent from doing the act.
Ms Noble also claimed that in the course of her employment with R & P Mr Baldwin sexually harassed her within ss.28A and 28B(2) of the SDA which, relevantly, are as follows:
28A (1) For the purposes of this Division, a person sexually harasses another person (the person harassed ) if:
(a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or
(b) engages in other unwelcome conduct of a sexual nature in relation to the person harassed;
in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimidated.
(2) In this section:
"conduct of a sexual nature" includes making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing.
28B (2) It is unlawful for an employee to sexually harass a fellow employee or a person who is seeking employment with the same employer.
In addition, Ms Noble alleged that Mr Baldwin victimised her contrary to s.94(2)(g) of the SDA. Section 94 is, relevantly, as follows:
(1) A person shall not commit an act of victimization against another person.
Penalty:
(a) in the case of a natural person--25 penalty units or imprisonment for 3 months, or both; or
(b) in the case of a body corporate--100 penalty units.
(2) For the purposes of subsection (1), a person shall be taken to commit an act of victimization against another person if the first‑mentioned person subjects, or threatens to subject, the other person to any detriment on the ground that the other person:
…
(g) has made an allegation that a person has done an act that is unlawful by reason of a provision of Part II;
or on the ground that the first‑mentioned person believes that the other person has done, or proposes to do, an act or thing referred to in any of paragraphs (a) to (g), inclusive.
An initial contention that R & P also victimised Ms Noble in breach of s.94(2)(g) of the SDA was not pressed.
It was contended that pursuant to s.106 of the SDA R & P was vicariously liable for such unlawful acts of Mr Baldwin. Section 106 is as follows:
(1) Subject to subsection (2), where an employee or agent of a person does, in connection with the employment of the employee or with the duties of the agent as an agent:
(a) an act that would, if it were done by the person, be unlawful under Division 1 or 2 of Part II (whether or not the act done by the employee or agent is unlawful under Divison 1 or 2 of Part II); or
(b) an act that is unlawful under Division 3 of Part II;
this Act applies in relation to that person as if that person had also done the act.
(2) Subsection (1) does not apply in relation to an act of a kind referred to in paragraph (1)(a) or (b) done by an employee or agent of a person if it is established that the person took all reasonable steps to prevent the employee or agent from doing acts of the kind referred to in that paragraph.
Onus and standard of proof
Except in relation to s.106(2) of the SDA (in relation to which the respondents bear the onus of proof), the applicant bears the responsibility of establishing the allegations she makes in these proceedings according to the civil standard of proof upon the balance of probabilities in accordance with s.140 of the Evidence Act 1995 (Cth) having regard to the matters in s.140(2) and any other relevant matter (see the discussion by Branson J in Qantas Airways Ltd v Gama (2008) 167 FCR 537; [2008] FCAFC 69 at [123] – [139]).
Thus, when considering whether I am satisfied of the facts in issue I have borne in mind that the nature of the cause of action is a human rights complaint founded on s.46PO of what is now the AHRC Act. As Branson J pointed out in Gama at [133]:
The legislative requirement for complaints of unlawful discrimination to be made in the first instance to the President [of the AHRC formerly HREOC] reflects a recognition, as it seems to me, that the practical implications of human rights principles are not always well understood by members of the Australian community. For this reason, not only may claims of discrimination lack substance but acts of discrimination may occur without the actor intending to breach those principles. For these reasons moral opprobrium may, but does not necessarily, attach to an allegation of discriminatory conduct.
Further, I have had regard to the nature of the subject matter of the proceedings under the SDA and the RDA which, as “anti-discrimination legislation should be regarded as beneficial and remedial legislation”. (Macedonian Teachers' Association of Victoria Inc v Human Rights and Equal Opportunity Commission and Another (1998) 91 FCR 8 at 29; [1998] FCA 1650 per Weinberg J and see Gama at [134] – [136] although I also note Toben v Jones (2003) 129 FCR 515; [2003] FCAFC 137 in relation to the background to and purpose of Part IIA of the RDA).
I have also borne in mind the gravity of the matters alleged (see s.140(2)(c) and Branson J at [137] in Gama). In this instance, without in any way belittling the claims made, the conduct alleged is not of the gravity of some claims based on such legislation.
As stated in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd and Others (1992) 67 ALJR 170; [1992] HCA 66 at [2] “…the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove” as well as “the circumstances in which it is sought to be proved” (see Gama at [139]).
Preliminary issues
In pre-hearing written submissions the respondents raised three “preliminary” issues. First, issue was taken with the extent to which aspects of Ms Noble’s affidavit sworn on 9 June 2010 raised fresh matters that went beyond the leave that had been granted to put into proper form her earlier affidavit evidence. Objections on that basis were dealt with at the hearing.
Secondly, it was submitted that the court did not have jurisdiction to determine whether a breach of the SDA or RDA had occurred in relation to any matters which, although the subject of evidence, were not referred to in the original complaint to HREOC.
Section 46PO(3) of the HREOC Act (now the AHRC Act) relevantly provides that the unlawful discrimination alleged in the application:
(a) must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or
(b) must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.
However, Katz J stated in Charles v Fuji Xerox Australia Pty Ltd (2000) 105 FCR 573; [2000] FCA 1531 at [37] – [39]:
It appears to me that s 46PO(3) of the HREOCA is only incidentally concerned with those allegations of fact which can be made in an application under s 46PO(1) of the HREOCA; it is primarily concerned, not with such allegations, but rather with the legal character which those allegations of fact can be claimed to bear. In the two situations with which it deals, it permits an applicant in a proceeding before the Court to claim that the facts alleged against the respondent constitute unlawful discrimination of a different legal character than the unlawful discrimination which was claimed in the relevant terminated complaint.
Paragraph (a) of s 46PO(3) of the HREOCA proceeds on the basis that the allegations of fact being made in the proceeding before the Court are the same as those which were made in the relevant terminated complaint. The provision naturally permits the applicant to claim in the proceeding that those facts bear the same legal character as they were claimed in the complaint to bear. However, it goes further, permitting the applicant to claim in the proceeding as well that those facts bear a different legal character from that they were claimed in the complaint to bear, provided, however, that the legal character now being claimed is not different in substance from the legal character formerly being claimed.
Paragraph (b) of s 46PO(3) of the HREOCA, on the other hand, permits the applicant to allege in the proceeding before the Court different facts from those which were alleged in the relevant terminated complaint, provided, however, that the facts now being alleged are not different in substance from the facts formerly being alleged. It further permits the applicant to claim that the facts which are now being alleged bear a different legal character than the facts which were alleged in the complaint were claimed to bear, even if that legal character is different in substance from the legal character formerly being claimed, provided that that legal character "arise[s] out of" the facts which are now being alleged.
His Honour continued at [41]:
On the construction which I give to s 46PO(3) of the HREOCA, it is apparent that par (a) thereof provides no warrant for an applicant in a proceeding in this Court to make any allegation of fact in the proceeding different from those which were made in the applicant's earlier complaint to the Commission. On the other hand, par (b) thereof does permit an applicant in a proceeding in this Court to make allegations of fact in the proceeding different to a certain extent from those which were made in the applicant's earlier complaint to the Commission.
On this approach the court’s jurisdiction extends beyond the matters determined in the original complaint to the extent to which the circumstances fall within s.46PO(3)(a) or (b) of the HREOC Act. I have borne in mind that as Lehane J stated in Travers v New South Wales [2000] FCA 1565 at [8]:
No doubt it was intended that a terminated complaint should not be used to launch an application to the Court, effectively bypassing the procedures provided by the legislation, alleging discrimination other than that of which a complaint had been made or covering a course of conduct substantially wider - or beginning substantially earlier - than that initially complained of. At the same time, it must be recognised that the terms of s 46PO(3) suggest a degree of flexibility ("or the same in substance as", "or substantially the same") and a complaint, which usually will not be drawn by a lawyer, should not be construed as if it were a pleading: Commonwealth v Sex Discrimination Commissioner [1998] FCA 1607; (1998) 90 FCR 179 at 188. Indeed, the initial complaint may be in quite brief and general terms, the detail being elicited in the course of inquiries by the relevant Commissioner: Simplot Australia Pty Ltd v Human Rights and Equal Opportunity Commission (1996) 69 FCR 90 at 94. It may well be that the ambit of a complaint is to be ascertained, for the purpose of s 46PO(3), not by considering its initial form but by considering the shape which it had assumed at the time of its termination. Counsel for the State contended that the "complaint" to be considered for the purpose of s 46PO(3) in this case comprised the letter of 10 February 1997 and nothing else. Although there is no need to reach a firm conclusion about it, there is in my view much to be said for the applicant's submission to the contrary.
(See also Hurst and Devlin v Education Queensland [2005] FCA 405 at [105] per Lander J and Gama v Qantas Airways Ltd (2006) 195 FLR 475; [2006] FMCA 11 at [9] per Raphael FM).
The conduct said to constitute breaches of the SDA and/or the RDA is that particularised in the Points of Claim.
In this case, the terminated complaint addressed allegations made in a Complaint Form dated 23 May 2008 and a written statement by Ms Noble dated 29 April 2008. Insofar as the respondents objected to parts of Ms Noble’s unsworn statement to HREOC, it was before the court as evidence of what her complaint to HREOC was, not as affidavit evidence in these proceedings. Ms Noble’s allegations therein relevant to the RDA claim were that Mr Baldwin was a “racist bully”, that he made comments to her about her skin colour (that she was “latte coloured”), and that he made racist comments about others, including a Fijian auditor and about the employment of Chinese and Indians. The contentions about racial comments about persons other than Ms Noble were not pressed. It was open to Ms Noble to make allegations of fact in these proceedings not different in substance to these complaints, bearing in mind the need for flexibility referred to in Travers v New South Wales. The matters now relied on under the RDA in the Points of Claim do not go beyond the limits of s.46PO(3) of the HREOC Act (now the AHRC Act).
The original complaint by Ms Noble under the SDA was of victimisation and sexual harassment by Mr Baldwin. Ms Noble also complained of victimisation by R & P, but she no longer presses this claim (although she maintains an assertion that R & P is vicariously liable for the acts of Mr Baldwin under s.106 of the SDA). The victimisation complaint in relation to Mr Baldwin referred to the fact that Ms Noble was issued with a first and final warning on 31 March 2008 after a complaint was made against her that she physically assaulted another employee. Ms Noble claimed the warning was issued because she had made a complaint about Mr Baldwin and had spoken about her concerns in relation to Mr Baldwin to Mr Mellino, the new Managing Director of R & P, at a social function.
In relation to sexual harassment Ms Noble’s written statement to HREOC referred to Mr Baldwin brushing his arm against her breasts on three or four occasions; looking at breasts of female employees during conversations with them; “publicly play[ing] with his genitals”; placing his foot on her desk and “swing[ing] his leg with his groin at eye level”; and telling her that he “only select[ed] his staff because of the size of their breasts”.
In her statement to HREOC Ms Noble also complained in general terms about Mr Baldwin “being sexist”. She alleged that Mr Baldwin “deliberately brush[ed] his arm against women’s breasts whilst reaching across their workstations”; that he asked about a colleague’s sex life; that he made a comment that a colleague was overweight because she “wasn’t getting any”; that he looked at female employees’ breasts and not their faces when he spoke to them; that he publically played with his genitals (or scratched himself in public); and that he constantly used “bad language” to the staff, on the telephone and to Ms Noble.
Insofar as issue was taken by the respondents with allegations in Ms Noble’s affidavit evidence that on two separate occasions in 2007 Mr Baldwin had asked her and another employee “Would you like to rub my feet?” and had attempted to rub the backs of particular employees on two occasions in 2007, counsel for Ms Noble confirmed that these, as well as some other matters, were raised as part of the context in which particular incidents of sexual harassment were said to have taken place and were not themselves said to constitute incidents of sexual harassment. Hence it is not necessary to determine whether such allegations would fall within s.46PO(3) of the AHRC Act.
Objections were upheld in relation to parts of Ms Noble’s affidavit of 9 June 2010 that went beyond the leave granted to put her earlier evidence in proper form. Having regard to this, the fact that certain other parts of her affidavit were not read by Ms Noble and her concession that other parts were relied on only as background or context and not as allegations of breaches of the SDA or RDA, I am satisfied that the court has jurisdiction to determine the matters now relied on in the Points of Claim. The allegations of victimisation and unwelcome conduct by Mr Baldwin of a sexual nature in relation to Ms Noble are not such as to take any of these matters outside the jurisdiction of the court, being not different in substance from the matters alleged to HREOC (see s.46PO(3)(b)).
While the allegations that Mr Baldwin engaged in unwelcome conduct of a sexual nature in the presence of Ms Noble are expressed in more specific detail in these proceedings than the initial general allegations made to HREOC of sexist behaviour and remarks, the facts now alleged are not different in substance from the facts formerly alleged (see s.46PO(3)(b) and Charles v Fuji Xerox at [39]).
The third such issue raised by the respondents was a submission that the applicant would be unable to make out her claims on the Points of Claim “either as a matter of law or on the basis of the evidence filed and served” in these proceedings and hence that the pleadings were deficient and ought to be struck out or withdrawn. It was submitted that the Points of Claim ought to be struck out insofar as they purported to bring claims for sexual harassment based on behaviour done in relation to persons other than the applicant and not done “in relation to” the applicant, as was said to be required under s.28A of the SDA. Secondly, it was submitted that the claims of vicarious liability under s.106 of the SDA on the part of R & P for the actions of Mr Baldwin said to constitute victimisation under s.94 of the SDA should be struck out because there was no evidence to support such claims and because s.106 did not operate in relation to s.94. Further, it was submitted that the claim of offensive behaviour because of race, colour, nationality or ethnic origin under s.18C of the RDA should be struck out on the basis that the acts described were not done in a “public place” or “otherwise than in private” as was said to be required by the legislation. It was foreshadowed that indemnity costs would be sought if the applicant did not withdraw such claims. The applicant did not withdraw these claims.
Insofar as this submission was expressed as a contention that the Points of Claim ought to be struck out, there was ample opportunity prior to the hearing for any such issue to be taken by the respondents in relation to the Points of Claim which are, in all relevant respects, in substance the same as the earlier version. In fact the respondents filed an application in a case on 3 December 2009 contending that the court had “no jurisdiction to entertain” certain matters and seeking dismissal of certain aspects of the applicant’s claims. That application in a case did not address the matters now raised, but rather took issue with other aspects of the then extant further amended points of claim. On 15 December 2009 the court made orders by consent striking out those paragraphs of the further amended points of claim with which the application in a case took issue. Had the respondents also wished to raise the matters now raised they had the opportunity to do so.
In the circumstances I am of the view that it is appropriate for the matters relied on in the Points of Claim to be determined. If the respondents’ submissions are accepted, then the applicant will not succeed in those aspects of her claim.
Credit
Before considering the particular allegations made by Ms Noble it is relevant to address the credit of each of the witnesses, a matter on which the parties made extensive submissions.
At the hearing Ms Noble relied on the affidavit sworn by her on 9 June 2010 and affidavits of Julie Clark, Marny Hilson, Gillian Shumack, Dr Selwyn Smith and Alan Cowan. Other than Mr Cowan, each of these witnesses was cross-examined.
The respondents relied on affidavits of Mr Baldwin, Peter Joseph Mellino, Gary Michael Seaton, Maree Susan Leanne Vormister, Bryan Francis McHutchison and Glen Tess. These witnesses, other than Mr Tess, were also cross-examined.
Credit is of some significance in these proceedings, given that there are factual disputes between the parties as to issues such as whether the conduct complained of by Ms Noble occurred; whether it occurred in the way she said it did; how often it occurred; and the extent to which she complained to R & P about Mr Baldwin. There is also a factual dispute (connected to the victimisation claim) as to whether the warning Ms Noble was given in March 2008 was in any way related to any complaints by her to R & P about Mr Baldwin.
I have borne in mind the care required in making findings in a matter such as this. As Mansfield J stated in Poniatowska v Hickinbotham [2009] FCA 680 at [47]:
The reliability of witnesses is always difficult to assess. Each witness sees events from his or her own perspective. Over time there is sometimes a degree of rationalisation to fit objective material (documents) as it emerges into the understanding of events. Some witnesses’ memories become refined by a strong belief in the rightness of their role, so that objectivity is lost to a degree.
Ms Noble
The hearing in this matter was originally listed to commence on 22 March 2010. On 3 March 2010 the hearing dates were vacated and the matter was listed for hearing on 24 May 2010. The time for filing affidavit evidence was extended. On 19 May 2010 Ms Noble sought a further adjournment on the basis that she had only recently obtained fresh legal representation. Ms Noble’s counsel sought, and was granted, leave to consolidate her earlier affidavits into a fresh affidavit in order to put her evidence into proper form. Subsequently she filed, and now relies on, an affidavit sworn by her on 9 June 2010.
Insofar as post-hearing submissions for Ms Noble now suggest that she was “prevented” in some way “from expanding or clarifying any of the substance of the evidence” contained in her earlier affidavits and that this is in some way relevant to her credibility, such a claim is not made out. Ms Noble was legally represented from the start of these proceedings until January 2010 and then from May 2010 on. She was given extensions of time to file affidavit evidence, both in chief and in reply.
When Ms Noble sought (through counsel) to consolidate her affidavit evidence in chief the respondents had filed all their evidence. Despite having been given the opportunity to do so on more than one occasion, Ms Noble had not filed evidence in reply. No application was made then (or thereafter) for a further extension of time to do so or to put fresh evidence before the court, or for leave to reopen her case. There was no suggestion at that time that matters had come to the attention of Ms Noble or her lawyers that had not been included in her earlier affidavit evidence or that new evidence had come to light. As discussed further below, I do not accept that the additions and embellishments on her claims suggested by her in response to cross-examination should be regarded as evidence that she was prevented from putting before the court as affidavit evidence.
Counsel for Ms Noble submitted that she should be treated as a witness of truth, whereas counsel for the respondents submitted that in general Ms Noble was not a witness of truth. In particular, the respondents submitted that Ms Noble did not give evidence in a free and frank manner or make appropriate concessions, that she frequently overstated or understated her testimony to strengthen her own case both in affidavit evidence and under cross-examination and that she made sweeping generalisations which were consistent with her complaint but were easily proven wrong. In support of these contentions reference was made to a number of aspects of Ms Noble’s evidence. I have considered all these contentions.
There were some difficulties with Ms Noble’s evidence of the nature contended for by the respondents which do not reflect well on her credit in particular respects, but not all of the concerns raised by the respondents are made out and these issues are not such as to establish that she was not a witness of truth in any respect.
Counsel for the respondents submitted that an example of a sweeping generalisation by Ms Noble which was easily proven wrong was that in cross-examination Ms Noble “denied that her husband was not earning any money over the last three years and that she had not claimed a tax rebate for him over that time” when “her tax returns clearly showed that she had listed [his] earnings as “zero””. However, this contention is not made out as a significant criticism of Ms Noble’s evidence or credibility. The transcript of this part of the cross-examination reveals that when it was put to Ms Noble that she had “claimed a tax rebate because [her] husband ha[d] not been earning any money for the last three years”, while she initially stated “That is incorrect”, she continued “Sorry, can I clarify that point?” and subsequently explained that an indication of zero taxable income in her tax returns did not mean that her spouse did not earn “any” money. She conceded that she had claimed a tax rebate in relation to her husband’s income.
The respondents also contended that in cross-examination Ms Noble tended to overstate and then resile from or qualify her evidence when possible inconsistencies emerged. One area in which this was said to be apparent was in relation to Ms Noble’s role at R & P. In her affidavit Ms Noble had described herself as the “National Accountant” with six people reporting to her and for whom she was “responsible” (including an Assistant Accountant). According to the evidence of Mr Baldwin, the National Finance Manager, Ms Noble was employed as “Assistant accountant” and “did not have anyone reporting to her”. He claimed that the six people in the finance team directly reported to him. In cross-examination Ms Noble claimed that when she was national accountant, not only did the people in the finance section report to her “and then to Mr Baldwin on a day-to-day basis”, but also that she was “second in charge”.
There was no affidavit evidence to this effect and Ms Noble subsequently agreed that she had not received anything in writing and that she had not deposed as to any verbal advice that she was second in charge. While the claim that she was second in charge was new evidence given for the first time under cross-examination, it was elicited in relation to Ms Noble’s assertion in her affidavit that she had six people reporting to her. Mr Baldwin’s evidence was that there was a “completely flat management structure” and that Ms Noble did not have anyone reporting to her. Ms Noble did not file any affidavit evidence in reply on this issue.
However, whilst the evidence does not establish that Ms Noble had a formal supervisory role as she initially claimed in cross-examination, I accept that (as she claimed) other employees consulted her and that when Mr Baldwin was away she was (at least in effect) left in charge.
The respondents also submitted that in cross-examination Ms Noble refused to accept what were “relatively uncontentious matters”, such as the job description annexed to the letter dated 10 April 2007 advising her of an increase in her salary. That evidence was filed and served by Ms Noble as an annexure to her affidavit of 2 June 2009, although she did not put it into evidence at the hearing. The letter referred to Ms Noble’s then current position as accountant (not assistant accountant as Mr Baldwin attested), expressed pleasure and appreciation for her work and advised that the “Board of Directors had recently reviewed and approved [her] salary” for 2007. Ms Noble’s evidence in cross-examination was that she did not agree that the page attached to the letter that referred to the job description for the position of “accountant/assistant accountant” was a copy of her job description. Ms Noble explained that it was a “mixture of accountant/assistant accountant duties” and that there were “two positions”. She conceded that the people who wrote it clearly thought it had relevance to her, but nonetheless maintained that it was “completely inaccurate”.
Given Ms Noble’s evidence that there were separate positions of accountant and assistant accountant, her refusal to accept the accuracy of the job description is not such as to raise doubts of substance about her credit, albeit she at times demonstrated a somewhat defensive approach in response to cross-examination. That is not of itself a basis for criticism of her credibility.
Moreover, contrary to Mr Baldwin’s evidence that Ms Noble’s role was that of “assistant accountant”, there is (consistent with her claim) evidence that for most of the time that she worked for R & P she was employed as “accountant”. Thus, included in the exhibit to the affidavit of Mr Seaton (R & P’s National Human Resources Manager) are copies of letters to Ms Noble from Mr Baldwin dated 1 March 2004 and 7 March 2004 offering her the position of “accountant” on a part-time basis. Subsequent correspondence from Mr Baldwin confirmed Ms Noble’s appointment as “Accountant” on a full-time basis. The salary review letter of 10 April 2007 from R & P described Ms Noble’s then current position as “Accountant for R & P Pty Ltd, Head Office – Accounts”, as did the “Head Office Staff Listing” dated 1 January 2007. Mr Seaton’s evidence is that Ms Noble was employed as an accountant. I accept that this was Ms Noble’s position from at least March 2004 to the end of 2007. Ms Noble was appointed Cost Accountant from 1 January 2008 and it is not in dispute that no staff reported to her in that role.
Another example of what was said to be a refusal by Ms Noble to accept a relatively uncontentious matter was her response when it was put to her in cross-examination that she made a complaint about Mr Baldwin to Mr McHutchison and Mr Dix in 2005. The following exchange occurred:
See, you haven’t admitted to using the word “fuck,” because that would mean you weren’t offended by use of that word by Mr Baldwin. That’s right, isn’t it?---I’m extremely offended by it.
It was you who made the complaint to Mr McHutchison and then Mr Dix in 2005, wasn’t it?---No. Not in the way that you say it, no.
Well, did someone else make a complaint in 2005?---No. It was I that complained, but I didn’t make the complaint in the way that you say I made the complaint.
Well either you did make a complaint or you didn’t. Are you saying someone else made that – made a complaint in 2005?---No - - -
And if so, how is it relevant?---The way that it happened is that Bryan asked me what was going on, which he then followed by saying, “Do you want to make a complaint?”
We’ll come to 2005. I’m simply asking you to agree with me that it was you who made, let’s say, a complaint, and it’s the complaint that you give evidence about in these proceedings, yes?---Yes. Yes.
So we’re clear? And that complaint was made in 2005, wasn’t it?---Yes.
(Transcript page 95)
In such exchange the applicant was said to be “apparently avoiding agreeing with the cross-examiner on an issue that [was] part of her own case and seeking to assert that the cross-examiner was being somehow unfair in the way the question was posed”, when there was no such unfairness apparent. However, while it appears from this exchange that Ms Noble drew a distinction between the fact of a complaint and the circumstances in which it was made and was somewhat on the defensive, again this does not necessarily call into question her truthfulness or credibility generally.
Such an exchange is, however, indicative of Ms Noble’s capacity to understand and draw fine distinctions. Ms Noble demonstrated an ability to take issue with any statement that she felt did not reflect the manner in which she perceived that events had occurred. This suggests that if there had been issues concerning the extent or accuracy of Ms Noble’s evidence (as she tried to imply in response to cross-examination), she would have been quite capable of providing detailed clarification of relevant issues in her affidavit evidence.
Similarly, in several other instances Ms Noble took issue with the precise context in which conversations occurred. For example, when counsel for the respondents characterised her evidence about an alleged conversation with Mr Baldwin in January or February 2006 as evidence, that she “had a conversation with Mr Baldwin about Ms Hilson” the following exchange occurred:
Right. Now, if you look at paragraph 19 of your affidavit, dated 9 June 2010, you say you had a conversation with Mr Baldwin about Ms Hilson, don’t you?---No, I think it says that he spoke to me.
My question was, you say you had a conversation with Mr Baldwin. Now, regardless of who spoke to whom, that is a conversation, isn’t it?---But it sounds like you are implying that the conversation was about that before he mentioned the lesbian rock band, which is not - - -
All I am asking you to do, Ms Noble, is answer my questions?---I was having a conversation with Mr Baldwin.
(Transcript page 66)
Drawing such a fine distinction is not of itself necessarily indicative of a lack of frankness and honesty, either about the conversation in question or more generally. In that exchange, as Ms Noble then explained, she was concerned that counsel for the respondents may have been mischaracterising the order in which the comments she complained of had occurred. While the respondents contended that this showed that the applicant was attempting to try to “second guess the cross-examination” to “provide only evidence that was useful to her case”, this is also consistent with Ms Noble being determined to ensure that the evidence put to her was precisely as put in her affidavit.
The respondents also contended that Ms Noble “demonstrated a pattern of adding to her complaints” over time and that most of the allegations before the court were made after Ms Noble left her employment with R & P. However, the fact that an applicant provided more detail and included additional complaints in legal proceedings (as compared to the claims made while in employment and/or to HREOC) is not of itself such as to warrant an adverse credibility inference being drawn (although of course the restrictions in s.46PO(3) of the HREOC Act apply).
On the other hand there are a number of respects in which Ms Noble’s evidence suggested the lack of objectivity and rationalisation (in the sense considered by Mansfield J in Poniatowska) and also raised concern about the truthfulness of her additional claims about the extent to which events complained of occurred throughout the period of her employment and the impact of Mr Baldwin’s conduct on her.
In particular it was of concern that certain parts of the applicant’s evidence under cross-examination were inconsistent with her affidavit evidence. Notably, Ms Noble’s evidence in relation to the increase in her alcohol consumption while at R & P was not consistent. This is of significance given that Ms Noble claimed that such increase occurred due to the alleged sexual harassment.
In her affidavit of 9 June 2010, under the heading “Consequences of Working at R & P Pty Limited”, Ms Noble’s evidence was that:
In or about March 2006 I started drinking heavily to relax myself after work and to drown out the events of the day, particularly Paul’s behaviour. I started drinking about six beers and a large glass of wine each night. Prior to this, it was unusual for me to drink more than one or two drinks per night approximately three times per week, and I never drank wine during the week.
She went on to attest that:
I often drink six beers and a large glass of wine each night after work. I cannot drink socially because I cannot control my drinking, and I have started avoiding social events.
In cross-examination Ms Noble was taken through her statement of 29 April 2008 made in support of her application to HREOC, in which she had stated that she used to drink about three or four nights a week “about two or three drinks at a time and a bit more at the weekend”, but that because of her injury she found “… that I am drinking every day about 8 beers and a couple of glasses of wine”. After a discussion about the size of the drinks (in the course of which she agreed that eight beers was “probably” more like ten standard drinks and that the glasses of wine were more than 125 ml), Ms Noble suggested that she had meant in her statement that she found she was drinking what amounted to eight standard drinks a day. She then conceded that she had not drunk the same amount every day and that it was probably about six to ten standard drinks a night, averaging at eight.
However, critically, even allowing for the variation in the amount said to be consumed, Ms Noble’s evidence in cross-examination was that the change in her drinking habits occurred in around “early 2005”. This is inconsistent with her affidavit of 9 June 2010 in which she claimed that she started to drink heavily “[i]n or about March 2006”.
When it was put to Ms Noble that in her affidavit of 9 June 2010 she had said that the change in her drinking started in March 2006, she then said that it was a “gradual increase” that “culminated [in] an average of eight beers a day by early 2006”. This attempted qualification is also not consistent with her affidavit evidence.
Further, while in cross-examination Ms Noble’s evidence was that she still had a problem with alcohol at the date of hearing, her own medical expert had generally noted that she had “substantially recovered” from the time that she ceased working with R & P and commenced employment with another company.
The inconsistency in Ms Noble’s evidence in this respect and her subsequent attempted explanation or qualification does not reflect well on her credit in relation to the impact of the conduct of which she complained, albeit it is not such as to satisfy me that she is not in all other respects a witness of truth.
The respondents submitted that it was more likely that the applicant already had a problem with alcohol before she was employed with R & P referring to the fact that she ran a pub in England before she came to Australia and suggesting that her financial situation may have been the cause of the stress so that this could not form the basis for any claim for damages.
The evidence does not go so far as to warrant such inferences being drawn. There are inconsistencies in Ms Noble’s evidence about whether she started drinking heavily in about early 2005 or in March 2006 or whether there was a gradual increase in her alcohol consumption from the time she started at R & P. As discussed below, having regard to this, to the fact that much of the alleged conduct of Mr Baldwin that Ms Noble found offensive was not unlawful within the SDA or RDA, any alcohol problem has not been shown to be caused by the specific instances of unlawful conduct established in these proceedings.
Also said to be of concern in relation to the question of whether and when Ms Noble complained to R & P about Mr Baldwin was her denial that she was aware of any formal grievance handling procedure at R & P, notwithstanding the fact that evidence in that respect was before the court.
Ms Noble’s evidence in relation to this issue in her affidavit of 9 June 2010 was as follows:
From the time I started work at R & P Pty Limited in December 2003, I was not aware of the existence of a Grievance Handling Policy. In January 2007 I was given a Human Resources Manual which referred to a Grievance Handling Policy, however, there were no such procedures attached.
In cross-examination Ms Noble maintained a denial that she was aware of any formal grievance handling procedure. However, included in the documents annexed to her affidavit sworn on 2 June 2009 (which the respondents tendered in these proceedings) was a copy of the R & P Human Resources Manual released on 1 January 2007 which included in conditions of employment a “Grievance Procedure” which included the statement:
If you feel you have a sincere genuine grievance (complaint) you have the following procedure available to you:
1) Raise it first with your immediate supervisor
2) If dissatisfied, request an interview with your Manager
3. In the unlikely event that you still feel aggrieved, you may as a final resort, request an interview with the Managing Director.
Ms Noble confirmed in cross-examination that her evidence was that this manual referred to a grievance handling “policy” but that there were “no procedures attached”. When a copy of the manual was shown to her and it was put to her that it was not correct to say that she was unaware of any grievance procedure, given that she had conceded that she had received this document, she stated “To me, this is not a procedure. This is just something – this is a statement”. She reiterated that this was “not a grievance procedure” and then agreed that her view was that it was not an “adequate” grievance handling procedure. The following exchange occurred:
So, much the same as the job description which you didn’t agree was a job description for you, you disagree that this is an adequate grievance-handling procedure. Is that the state of affairs?---Absolutely.
Right. But this is a grievance procedure that the company set down and provided to you, isn’t it?---Yes, in 2007.
Yes. So, when you said that you were unaware of any grievance procedure, that was incorrect, wasn’t it?---This is not a grievance procedure.
(Transcript page 66)
There is an obvious distinction between the existence and the adequacy of a grievance handling procedure. I am satisfied that Ms Noble, who presented as an intelligent witness, was quite aware of such a distinction. I do not accept that she was unaware of the “grievance procedure” in the 1 January 2007 manual, albeit she did not regard it as adequately specifying the procedure to be followed.
Ms Noble’s evidence that she was not aware of any formal grievance handling procedure at R & P was also maintained in the face of evidence (from the respondents) that she had attended a presentation in relation to R & P’s workplace harassment policy in June 2006. Ms Noble did not refer to attendance at such a presentation in her affidavit evidence. When her attention was drawn to a signed acknowledgement dated 21 June 2006 that she had attended such a presentation, she conceded that she had done so. When it was put to Ms Noble that the presentation covered material in a document entitled “Corporate Policy - Procedure Statement” on Workplace Harassment dated 5 June 2006 (which described workplace harassment and stated that employees were “encouraged to speak out against harassment” and to “report all cases” of harassment or suspected harassment to their manager and supervisor), she claimed she “ha[d] never seen”, then that she “did not recall seeing”, or “did not believe that she had ever seen” this R & P Corporate Policy Procedure Statement.
However, when it was put to Ms Noble that this material may have been covered in the presentation but that she had no recollection of it being covered, she then replied “Not in that great detail, no”. Indeed, when it was put to Ms Noble that she had given no evidence of having attended the presentation, she replied that she “was under the impression that it was in there somewhere, or I said I attended a seminar”. She later conceded that this seemed to be an “omission” from her evidence.
Insofar as Ms Noble may have sought to suggest in cross-examination that an R & P corporate policy on workplace harassment did not exist in mid-2006 or that she was not aware of this policy at that time, such allegation is not made out. Her failure to refer to her attendance at a training seminar on workplace harassment conducted before some of the alleged acts of harassment occurred leaves unanswered why, given that she attended such a presentation, she did not make any formal complaint about conduct she alleged was committed by Mr Baldwin in the period after June 2006 (apart from her claims about her discussion with the new Managing Director, Mr Mellino at a social function at a hotel in October 2007 and her attempt to raise such an issue with Mr Seaton on 31 March 2008).
Ms Noble’s evidence in this respect is of significance in relation to whether her claims about what occurred thereafter are accepted (particularly given that she did complain in 2005 notwithstanding that there is no evidence that R & P had a corporate policy on workplace harassment at that time and, on her evidence, action was taken by R & P in 2005).
In cross-examination Ms Noble also attempted to suggest that she made complaints about Mr Baldwin beyond those attested to in her affidavit. She conceded there was nothing in her affidavit to this effect (other than in relation to the occasions in September/October 2005 and October 2007 and March 2008 discussed below). She then claimed that such other complaints were “unofficial”.
Ms Noble did not refer to making any other complaints about Mr Baldwin in her statement to HREOC. She had the opportunity in these proceedings to put on affidavit evidence addressing any other complaints made to R & P.
While her attempt to raise additional claims in response to cross-examination does not lead me to reject all of her evidence as untruthful, I do not accept on the evidence before the court that Ms Noble made any complaint to any of her superiors at R & P about alleged behaviour of Mr Baldwin the subject of these proceedings, apart from a September/October 2005 complaint, an October 2007 discussion with Mr Mellino (considered below) and an attempt on 31 March 2008 (her last day at work) to complain about Mr Baldwin’s conduct when Mr Seaton and Mr Baldwin were discussing with her an allegation that she pushed the face of another employee.
In this respect, as in other instances, Ms Noble gave what can be seen as fresh evidence beyond that contained in any of her affidavits in an apparent attempt to bolster her case. A further example is her evidence in relation to the conversation with Mr Baldwin in early 2006 that is the basis for the allegation in the Points of Claim that in or around late 2005 Mr Baldwin made a comment of a sexual nature to Ms Noble about Ms Hilson regarding the sexual orientation of females and the sexual desires and requirements of older females.
Putting aside the issue of the date of this claimed conversation, what is relevant in relation to Ms Noble’s credit is the inconsistencies in her evidence.
Ms Noble’s affidavit evidence in relation to the alleged conversation with Mr Baldwin in January or February 2006, was that Mr Baldwin spoke to her about the fact that Ms Hilson, one of her co-workers, “had joined a lesbian rock band” and that he said words to the effect “Is Marny going to become a lesbian now? Has she gone over to the other side?” Importantly, Ms Noble’s affidavit evidence was that she “did not respond”.
However in cross-examination the following exchange occurred:
And you never made a complaint about this to Mr Baldwin, did you?---Telling him that I didn’t like to discuss things like that should be - - -
No, it’s a yes or no - - -?--- - - - should be enough.
Ms Noble, it is a yes or no answer. You didn’t make a complaint to Mr Baldwin, did you?---“I don’t want to talk about this,” to me, is a complaint.
Ms Noble, you didn’t make a complaint to Mr Baldwin about this statement, did you?---In my view, yes, I did.
And how did you do that?---By telling him that it’s not something that I wanted to discuss.
Right. And that’s not in your affidavit, is it?---No, sorry, it isn’t.
You do have to say “yes” or “no,” because we are recording it?---Yes.
Now, you never made a complaint about this to anyone else at R & P, did you?---Not about that conversation, no.
And that’s because Mr Baldwin never made any such comment, did he?---Yes, he did.
(Transcript page 67)
When it was put to Ms Noble that she never made a complaint to Mr Baldwin about this incident, she claimed that “Telling him that I didn’t like to discuss things like that should be enough”. Not only was this not a direct answer to the question, it was contrary to her affidavit evidence that she did not respond to Mr Baldwin’s comments about Ms Hilson.
Ms Noble’s evidence in this regard about her response to Mr Baldwin was not simply a clarification or elaboration of her claims. I do not accept that Ms Noble responded to Mr Baldwin as she claimed in cross-examination.
Counsel for Ms Noble submitted that to the extent that matters Ms Noble sought to raise for the first time in response to cross-examination were not addressed in her previous affidavits, an adverse inference should not be drawn against her based on such non-inclusion. However such affidavits were prepared at a time when Ms Noble was legally represented.
Insofar as this submission was made not on the basis of attributing some blame to the former legal adviser, but rather on the basis that, as the applicant stated in response to cross-examination, she was “not in a very good mental state” and that she included as much as she could remember at the time, such a suggestion does not take into account the considerable time Ms Noble had to file affidavit evidence.
These proceedings were commenced in February 2009 after a detailed complaint was made to HREOC by Ms Noble accompanied by a statement dated 29 April 2008 (which was relatively contemporaneous, being not long after she stopped attending work at R & P). In addition, she swore affidavits on 15 May 2009 and 5 August 2009 (detailing her complaints), on 2 June 2009 (annexing a number of relevant documents in relation to particular parts of her May 2009 affidavit) and on 19 March 2010 (in relation to procedural matters and not of direct relevance to the issues in question) as well as the affidavit of 9 June 2010. Ms Noble was given extensions of time to file affidavit evidence.
At the time that leave was granted to Ms Noble to consolidate her former affidavits in order to put her evidence in proper form, the respondents opposed any opportunity being given to Ms Noble to raise fresh matters at that stage of the proceedings (less than a week before the hearing in circumstances where there had been an earlier adjournment of the hearing and the respondents’ evidence had been filed). There was no suggestion at that time from counsel for Ms Noble that there were any significant additional matters or that she would be prejudiced if any such matters were not allowed in evidence before the court. The applicant did not subsequently seek leave to reopen her case.
Even if, as Ms Noble stated in cross-examination, in her view she was not in “a very good mental state at the time” her statement to HREOC was prepared, she had ample opportunity thereafter over a lengthy period of time to put her case before the court completely. Prior to the hearing, when issues were raised in relation to inadequacies in the points of claim, these were modified and she was given extensions of time to file further affidavit evidence prior to the time at which the hearing dates were vacated. As indicated, she had the opportunity to file evidence in reply to the respondents’ affidavit evidence.
In all the circumstances, having regard to these matters and Ms Noble’s evidence in cross-examination, it has not been established that the circumstances are such that no adverse inference should be drawn in relation to those matters not addressed in affidavit evidence that are of direct relevance to the nature and extent of Ms Noble’s claims.
The respondents also submitted that it was of general relevance in relation to Ms Noble’s credibility that she denied that she was doing anything wrong in emailing home confidential payroll records on 21 December 2007 even though R & P wrote to her about this (on 26 May 2008) when it found out she had done so. Annexed to Mr Seaton’s affidavit is a letter of 26 May 2008 to Ms Noble advising that it had “come to the company’s attention that [she] had emailed to [her] home email address company confidential information”. The letter requested her to return it or to provide a written statement confirming that she had destroyed any such information and would not disclose the contents of the information to any other persons. In response, Ms Noble wrote to Mr Seaton on 27 May 2008 advising that “the only company information that was emailed to [her] home email address was for the purpose of work undertaken by [her]self from home outside of normal office hours”.
In cross-examination Ms Noble agreed that she emailed the payroll information for employees of R & P and associated companies to her home. When this issue was first raised, Ms Noble said that she “frequently” emailed confidential payroll records (which she was authorised to access) to her home email so she could work on files at home. When it was put to her that this was a “breach of privacy” she claimed she had Mr Baldwin’s verbal permission (Transcript pages 96 – 97). She also claimed that she had reason to work on such files at home.
When asked “The fact is, you had no reason to email home confidential employee payroll records. That’s right, isn’t it?” Ms Noble replied “No, that’s not correct. I used to do it all the time” (Transcript page 97). The next day Ms Noble claimed she had sent payroll records home before (Transcript page 112). However, there is no suggestion that the computer records of sent items downloaded from Ms Noble’s work computer in evidence before the court as an exhibit to Mr Tess’s affidavit contain payroll information other than the information sent on 21 December 2007.
Moreover, while Ms Noble first said she had a reason to work on these files at home, she later conceded there was no work for her to do on the list of salaries over the 2007 Christmas break. Further, whilst she claimed she had the verbal permission of Mr Baldwin to send work home, she later resiled from any suggestion of specific verbal permission in this instance, on the basis that she had “overall, a cover blanket that I could do whatever I wanted as far as sending files home to work on them”.
Ms Noble further asserted that even though she had no precise recollection of sending the relevant email in December 2007, she did recall that there were people in the office at the time. That is not consistent evidence, although Ms Noble subsequently sought to explain it by claiming she was never alone in the office. In this part of the cross-examination Ms Noble did not answer questions asked directly and had to be directed to answer questions.
This issue is not of direct relevance to the claims brought in these proceedings (and there is no suggestion that Ms Noble’s departure from R & P had anything to do with any such issues or indeed that there was any dissatisfaction with her performance on the part of R & P). However her evidence in this respect was not consistent internally or with the evidence relied on by the respondents.
In responses in cross-examination Ms Noble did not always give evidence in a direct or spontaneous manner, but rather demonstrated on occasion a propensity to elaborate on her evidence in a manner that would, if accepted, strengthen her claims. The extent to which Ms Noble sought to modify her claims in cross-examination, as well as her apparent reluctance to accept or acknowledge matters not supportive of her claims (such as in relation to the existence of an R & P grievance procedure) and the inconsistencies in her evidence are such that she did not impress as an entirely open and frank witness. Her responses when challenged were not always convincing.
As discussed below in relation to particular issues, while I do not accept her evidence in all respects or the elaborations on her claims raised for the first time in cross-examination, I am not persuaded that Ms Noble’s evidence was such that it should not be accepted in any respect. There was some corroboration of her claims. I am satisfied that to a large extent her evidence in cross-examination reflected the loss of objectivity that can accompany a strong belief in the “rightness” of a claim in relation to events that occurred some time ago (see Poniatowska per Mansfield J at [47]). I have borne in mind Ms Noble’s obvious view that she was subject to a range of inappropriate, if not necessarily unlawful, conduct by Mr Baldwin. It may be that her concern about the circumstances in which she left R & P has coloured her assessment of events and her recollection of the frequency with which events occurred. There are, however, aspects of her claims that Ms Noble has consistently maintained and that are consistent with or supported by other evidence, in relation to which I accept that she was truthful. These issues are discussed further in relation to the particular claims relied on by Ms Noble.
Other witnesses for the applicant
The affidavits of the other witnesses for Ms Noble were relatively short and lacking in detail. In general, the cross-examination was not such as to raise significant concerns about the credibility of these witnesses and there was no suggestion from the respondents that they should not be accepted as witnesses of truth.
Ms Clark, who worked with Mr Baldwin “from approximately 2000 to 2006” at R & P, gave evidence generally that Mr Baldwin engaged in a number of behaviours, without any clarification of when particular events occurred. She claimed that he “would pick his nose and eat it”, that he “would scratch his testicles in front of all the women in the office” and that “[h]e would often put his leg up on the photocopier whilst talking to [her] and other staff members and scratch his testicles.” She also claimed that he “constantly made comments about the race and nationality of visiting auditors”. Mr Baldwin denied these claims, but where there is a conflict between the evidence of Mr Baldwin and Ms Clark I prefer that of Ms Clark.
Mr Baldwin did not deny and I accept other allegations made by Ms Clark about his behaviour, including that he told a woman in the office who was “well endowed” that she “would not need air-bags” and that “[i]f women in the workplace wore tops that were slightly lower cut, [Mr Baldwin] would stand above them and look down their shirts”. Ms Clark claimed she was aware of (unspecified) complaints made about Mr Baldwin but that R & P “would never act upon complaints about Paul Baldwin” and that “[t]he response from management was something like “yes he does that in front of us too””. However the generality of this evidence means that it can be given little weight. Ms Clark did not address the specific issue of complaints by Ms Noble. I accept Ms Clark’s evidence about Mr Baldwin’s intimidatory treatment of her in relation to her annual leave and her complaint that he yelled at her and verbally abused her and Ms Noble on one occasion when she took leave to attend a funeral.
As indicated, the respondents did not take issue with Ms Clark’s credibility in post-hearing submissions. I accept her evidence, but note its limitations. There is nothing in Ms Clark’s affidavit to suggest that she made any complaint to R & P management about Mr Baldwin, although in cross-examination she, like Ms Noble, contended she had done so. On the evidence before the court I do not accept that Ms Clark made any specific complaint to R & P management about Mr Baldwin’s alleged behaviour.
Further, while I accept that Ms Clark witnessed the events complained of, her evidence does not assist in determining exactly when and how often such events occurred and whether Ms Noble was the subject of or witness to such events (except that they were prior to Ms Clark’s departure from R & P on an unspecified date in 2006).
Ms Hilson’s evidence was also lacking in detail. No issue was raised about her credibility. I accept her evidence that Mr Baldwin looked at her breasts while speaking to her and that she was offended by this and that she observed him “brush past women” in the office. Mr Baldwin did not deny these claims in his affidavit. Ms Hilson confirmed in cross-examination that she did not make a complaint to anyone other than Mr Baldwin. Her complaint consisted of remarking to him on one occasion “tits don’t have eyes”. Despite Mr Baldwin’s denial, I accept that Ms Hilson said these words to him and also her evidence about his close examination of the breasts of a girl wearing a top with writing across it. However it is not clear when and how often the events complained of occurred or in whose presence, other than that of Ms Hilson. She worked with Mr Baldwin for approximately five years. There is no evidence as to when she ceased to work with Mr Baldwin. I accept that he made her feel “uncomfortable” and “belittled”.
Ms Shumack, another former R & P employee, gave evidence relating to the events of 26 March 2008 and the issue of whether or not Ms Noble hit or pushed Ms Sawtell (another employee), a matter discussed further below. There is some conflict in the evidence about what occurred on that day. I accept that Ms Shumack’s evidence is her recollection of what occurred on that day, but also that the events in question occurred more than a year before she swore her affidavit and that she had not taken notes of what occurred. Ms Sawtell did not give evidence in these proceedings.
Mr Cowan (the managing director of R & P until May 2007) was not required for cross-examination. I accept his evidence, albeit it was very limited. It was to the effect that he was aware of Mr Baldwin having been “disciplined twice before for harassment and bullying in the workplace” the last time in the first quarter of 2007 and that he “personally delivered two warnings to Paul Baldwin regarding harassment in the workplace”. He provided no other details of Mr Baldwin’s conduct. There is no suggestion that the occasion in 2007 was as a result of a complaint by Ms Noble. Mr Cowan was aware of and referred to the fact that Ms Noble had made a sexual harassment claim against Mr Baldwin that had been “managed by the National Manager of merchandising” (the 2005 complaint). He was unaware of the details or the outcome.
Mr Baldwin’s evidence is that the only warnings he received from Mr Cowan were a “warning” in relation to the 2005 complaint by Ms Noble to “Be careful of her” and a 2007 written warning “for harassment”. Mr Baldwin’s concession that he was called into Mr Cowan’s office in the first quarter of 2007 and handed a written warning “for harassment” is consistent with Mr Cowan’s evidence. However there is no other evidence of such a warning before the court. According to Mr Baldwin the written warning did not contain details of the alleged conduct, when it was alleged to have occurred or to whom it related. He stated that Mr Cowan said it was in the hands of their solicitor. However Mr Baldwin claimed that he had never heard anything further about such “warning” (which he had not kept).
The only expert evidence relied on by the applicant in these proceedings is the affidavit of Dr Selwyn M Smith. The respondent did not put any other expert evidence before the court and did not challenge Dr Smith’s credit. I accept that he is a witness of truth. Dr Smith’s evidence is discussed below where relevant.
Mr Baldwin
The respondents contended that Mr Baldwin was a witness of truth, that he “tried his best to answer the questions honestly and truthfully” even when they may have been against his interests and that he did not “try and second guess the cross-examination” or to “put any further gloss on his evidence”. On the other hand, the applicant submitted that Mr Baldwin’s evidence revealed a “serious lack of understanding of appropriate workplace behaviour and what amounts to sexual harassment and racial vilification”, that he was an “unconvincing witness” and was “evasive” in cross-examination.
As discussed below, Mr Baldwin did not appear to appreciate that certain conduct (such as looking at a fellow-worker’s breasts while speaking to her in the workplace, or scratching his genitals in the presence of others in the workplace) may not be appropriate workplace conduct, although he made concessions about his behaviour in some respects.
The applicant submitted that Mr Baldwin was “unable to recall significant events”, including whether he had referred to an employee as a “black bitch”, whether employees were given a copy of R & P’s 2006 workplace harassment policy and “how many times he brushed up against Ms Noble’s breasts”.
However, Ms Noble’s allegation was that Mr Baldwin referred to an external auditor (not a fellow employee) as a black bitch. His negative answer to a question about an allegation that he called “an employee” a “black bitch” reflected the nature of the question. In cross-examination Mr Baldwin denied that it was possible that he referred to “someone” as a “black bitch”. This went beyond and was not the same as his affidavit evidence about a lack of recollection, which I accept. That does not mean that the conduct did not occur.
Mr Baldwin’s inability to recall whether or not he handed a copy of the workplace harassment policy (which he recognised and was familiar with) to attendees at the June 2006 seminar (which he recalled attending) is of concern given that the policy provided for attendees to report cases (even suspected cases) of harassment or harassing behaviour to him as their manager. While it does not relate to his credit as such, it is consistent with an apparent lack of awareness or concern about such matters.
As to the suggestion that Mr Baldwin failed to recall “how many times he brushed up against Ms Noble’s breasts”, Mr Baldwin’s evidence was that he never “deliberately” brushed his arm against any woman’s breast while reaching across their workstation and that if he did ever touch a woman or any woman’s breast it was “inadvertent”. Consistent with this evidence he conceded in cross-examination that it was possible he did touch someone’s breasts in the workplace and possible that he brushed Ms Noble’s breasts while reaching across her workstation. While his reply “No” to the question “Can you indicate to the court on how many occasions you brushed Ms Noble’s breasts in the workplace?” must be seen in light of his claim that he did not recollect any such “brushing” in August 2005 and that any such action was inadvertent, nonetheless, he also agreed that he had apologised to Ms Noble for brushing against her breasts in the workplace. This is consistent with such conduct having occurred.
In cross-examination Mr Baldwin agreed that the 2005 complaint by Ms Noble related to his swearing, “getting too close to her and grabbing her mouse at her workstation”. Contrary to Mr McHutchison’s evidence, he claimed that he did not recall that the complaint also extended to staring at Ms Noble’s breasts. As discussed below I prefer Mr McHutchison’s evidence in this respect. Mr Baldwin agreed that he apologised to Ms Noble at that time and conceded that he tried to change his behaviour. Indeed he claimed that he did change his behaviour and that he “significantly reduced” his swearing despite the fact that he did not think he had done anything wrong at that time. I do not accept that Mr Baldwin was unaware of the fact that legitimate concerns were raised by the 2005 complaint which was raised with him by senior R & P management, even if prior to that time he had not given thought to the appropriateness of his conduct. Insofar as Mr Baldwin’s evidence appeared to suggest that he was unaware of the basis for the 2007 harassment warning by Mr Cowan, that would not be credible. At best, it suggests a lack of awareness of or concern about what constitutes workplace harassment.
Mr Baldwin’s answers in cross-examination were, for the most part, very short and direct. He conceded that he had engaged in certain behaviours, denied others and stated that he was unable to recall other allegations that were put to him. There were, however, some inconsistencies in his affidavit and oral evidence about particular alleged incidents. While these do not lead me to reject the truthfulness of all his evidence, such matters are relevant in relation to whether particular incidents occurred, as discussed below.
As counsel for the applicant submitted, Mr Baldwin’s demeanour in the witness box was somewhat “unusual”. He did appear to be avoiding engaging in eye contact with counsel for the applicant. He was somewhat stilted in his demeanour, although his demeanour is not of itself such as to warrant rejection of all his evidence. Further, while his answers were short and direct, no adverse inference can be drawn from this of itself, given the nature of the questions put to him in cross-examination. At the same time, his acknowledgment that he engaged in certain behaviours and his lack of recollection of others is not inconsistent with the truth of the complaints made by Ms Noble, as discussed further below, particularly as he claims not to recall conduct for which he apologised to Ms Noble.
Mr Baldwin admitted that when in the workplace he looked at women’s breasts when talking to them and when asked if he ever looked at Ms Noble’s breasts while speaking to her in the workplace, he conceded that he had done so (albeit he denied that she had said “Do you mind?” in such circumstances in around May 2006). Mr Baldwin also admitted that he had “touched”, adjusted or “scratched” his genitals at work and that he may have unconsciously or inadvertently done so in the presence of others. He regarded it as appropriate workplace conduct to adjust or scratch his genitals in the presence of others, but not to “play with [his] genitals in the presence of others”.
In this respect and in relation to other specific allegations Mr Baldwin conceded the possibility that certain events had occurred, but he denied others. At times his answers were against interest. Beyond this, his denials must be seen in light of the evidence corroborative of Ms Noble’s claims about his behaviour, relevant inconsistencies in his evidence, his lack of awareness of or concern about the appropriateness of certain workplace conduct and his claimed lack of knowledge about the details of the 2007 warning from Mr Cowan about harassment.
After a discussion with Mr Baldwin and Mr Mellino, Mr Seaton proposed to issue Ms Noble with a written warning. This was approved by Mr Mellino as Managing Director. Mr Seaton issued such a warning as a first and final written warning. He informed Ms Noble that if she committed similar actions that may lead to termination of her employment, but if there were no further problems the “letter” would be “removed” from her file after six months. Ms Noble volunteered to and did apologise to Ms Sawtell. She did not return to work at R & P thereafter.
It is not necessary for the purposes of these proceedings to determine precisely what occurred between Ms Noble and Ms Sawtell (and I note that Ms Sawtell was not a witness in these proceedings). It is clear on the evidence before the court that Ms Vormister complained of Ms Noble’s conduct to Mr Baldwin and that Mr Baldwin raised this with Mr Seaton who investigated. It is also clear that, while there was evidence to the contrary from Ms Noble and, to some extent, from Ms Shumack, there was also evidence before Mr Seaton and Mr Baldwin that was supportive of the view that Ms Noble had pushed Ms Sawtell’s face and therefore provided a basis for the decision to issue a warning.
It cannot be said that there was no evidence at all in support of the allegations that Ms Noble had pushed the face of a fellow employee. Even if there was no such assault, that would not be determinative in these proceedings. What is in issue is not whether there was or was not an assault, but rather whether Ms Noble was, as her counsel claimed, disciplined as retribution for making a complaint against Mr Baldwin in circumstances which amounted to victimisation by Mr Baldwin.
While I accept that both Mr Baldwin and Mr Seaton were involved in the decision to issue Ms Noble with a final warning (and hence that both accepted that she had pushed Ms Sawtell and did not accept her account of what occurred), even if the incident was as Ms Noble described it (that is that she moved but did not push Ms Sawtell’s face so that she could not see certain material on the computer), considerable time had passed since Ms Noble’s complaint of September 2005. She had remained in the employment of R & P and had received pay rises, including from the beginning of 2008. Having regard to the seriousness of the matter alleged (see s.140 of the Evidence Act). I am not satisfied that Ms Noble’s complaints were a substantive and operative reason for Mr Baldwin’s actions in relation to the March 2008 incident. It has not been established that Mr Baldwin’s involvement in the decision to impose a first and final warning on Ms Noble was on a ground within s.94(2)(g) of the SDA or that the warning was given to her due to the allegations made by her about the conduct of Mr Baldwin.
The 2005 complaint was made some two and a half years before the warning given to Ms Noble on 31 March 2008. Even if Mr Baldwin had become aware of what Ms Noble said to Mr Mellino in October 2007, that was some five months earlier. There is nothing in Ms Noble’s evidence to suggest that she was subjected to any particular detriment following those events prior to the warning. The only instance of victimisation alleged is in relation to a warning given to her in connection with conduct which a fellow worker (not Mr Baldwin) alleged occurred in relation to another employee.
The evidence is not such that it can be inferred that this amounted to victimisation by Mr Baldwin. Mr Seaton, who did not become National Human Resources Manager with R & P until October 2007, was the person responsible for the investigation. There is no evidence that he was aware of either the 2005 complaint or of what happened in 2007, except insofar as on the first working day after the events at the hotel in October 2007 Ms Noble went to see Mr Seaton and asked him if she had been fired. It has not been established that Ms Noble expressed this concern because she thought she had made a complaint to Mr Mellino about aspects of Mr Baldwin’s conduct, particularly having regard to Mr Mellino’s evidence about her conduct that evening. Indeed, there is no suggestion that there was any discussion of Mr Baldwin in Ms Noble’s conversation with Mr Seaton in October 2007. I accept Mr Seaton’s evidence that, except in the conversation of 31 March 2008, Ms Noble made no complaint to him in relation to the behaviour of Mr Baldwin.
The respondents’ evidence establishes that the warning provided to the applicant was not inappropriate and cannot be said not to have been warranted on the view taken by Mr Seaton (in association with Mr Baldwin) of what had occurred. Such a view was open on the material as reflected in Mr Seaton’s notes of his investigation. The evidence discloses that it was only after Ms Vormister made a complaint to Mr Baldwin that he went to see Mr Seaton, who then took appropriate and reasonable action by interviewing those involved. Mr Seaton spoke to Ms Noble and gave her an opportunity to respond and she offered to apologise to Ms Sawtell. She was also told that if there was no recurrence the warning would be removed from her file within six months. Contrary to Ms Noble’s contention, even if she was not provided with a written statement regarding the complaint made against her, this does not go to show victimisation by Mr Baldwin.
It has not been established that Mr Baldwin engaged in victimisation of Ms Noble within s.94 of the SDA.
Vicarious liability of R & P: victimisation
Insofar as the applicant claimed that R & P was vicariously liable for victimisation by Mr Baldwin, as no victimisation within s.94 of the SDA has been established no such complaint can succeed. In any event, as the respondents submitted, s.106 of the SDA does not operate in relation to s.94, being limited to vicarious liability for acts within Part II of the SDA. Section 94 is in Part IV of the SDA. No other basis for liability of R & P in this respect was relied on by the applicant.
The applicant’s claims against Mr Baldwin and R & P based on alleged victimisation are not made out.
Damages
In the Points of Claim Ms Noble claimed that as a result of the “victimisation, unlawful discrimination and/or sexual harassment” by the respondents she had suffered economic and non-economic loss. She sought special and general damages.
Under s.46PO(4)(d) of the AHRC Act if the court is “satisfied that there has been unlawful discrimination by any respondent” the court may make:
an order requiring a respondent to pay to an applicant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent
However, as set out above, neither victimisation under the SDA nor any breach of the RDA has been established. Some, but not all of the alleged conduct within s.28B(2) of the SDA has been made out. The claim for damages must be seen in light of these findings. Relevantly, in proceedings commenced under s.46PO of the AHRC Act Cowdroy J stated in New South Wales Department of Housing v Moskalev and Another (2007) 158 FCR 206; [2007] FCA 353 at ([34]) that “In the absence of any finding of unlawful conduct by [the respondent] there [i]s no jurisdiction under s 15 of the FMA which [can] support the order” sought under the applicable legislation.
The applicant’s “closing” written submissions claimed generally that the applicant was “entitled to an award of special and general damages”. However, while in the Points of Claim an amount of $12,125.63 was claimed as special damages for economic loss, in submissions the applicant provided a “Schedule of Economic Loss” which limited her claimed economic loss to superannuation of $991.41 in relation to the period of her unemployment (1 April 2008 to 23 May 2008) and loss of income from 26 May 2008 until 18 September 2008 of $118.50. The submissions did not address the principles applicable to the award of special damages.
In the Points of Claim the applicant also claimed $70,000 for non-economic loss for “Pain, suffering, anxiety, loss of motivation and enjoyment of life” and “psychiatric disorder and injury, being an Adjustment Disorder with Depressed and Anxious Mood” on the basis that the conduct of the respondents:
caused or substantially contributed to the applicant abusing alcohol, suffering feelings of anxiousness, depression, despair, irritability, difficulty sleeping, reduced appetite, fear of open spaces, reduction of self-esteem, worthlessness and humiliation…at various times from 2004 to 2008, but were acutely felt by the applicant and medical treatment sought in early 2008.
However in submissions for the applicant an amount in the order of $15,000 to $20,000 by way of general damages was sought. Reference was made to other cases in relation to conduct within the SDA in which such damages had been awarded. It was submitted that Ms Noble had suffered “significant, as opposed to mild” psychiatric damage (in contrast to the situation considered in Phillis v Mandic [2005] FMCA 330) as a consequence of the conduct of the respondents. The applicant did not otherwise address the question of damages in detail.
The respondents submitted, and it was not disputed by the applicant, that the assessment of damages in the discrimination jurisdiction generally follows the approach taken in tort law (See Hall v Sheiban at 256 per Wilcox J). It was submitted that insofar as the court made any findings in favour of Ms Noble, the amounts to which she became entitled as a result of her worker’s compensation claim had to be deducted from any amount awarded relating to remuneration (as opposed to general damages for pain and suffering). This appears to have been acknowledged in the applicant’s modification of the claim for special damages.
In any event, the respondents submitted that Ms Noble was not required to leave her job by the respondents, that she “resigned of her own volition” and that she “ha[d] not been unable to work as a result of the alleged conduct”. It was contended that Dr Smith’s medical evidence based on an examination of the applicant on 1 May 2009 indicated that any injury the applicant was suffering as a result of the conduct as described was “rapidly resolved once she left the company”.
Moreover, insofar as Ms Noble sought economic loss it was submitted that all the damages claimed flowed from the alleged victimisation which, it was submitted, was not made out. On this basis it was submitted that Ms Noble had no entitlement to special damages.
More generally, it was submitted that Dr Smith’s evidence was of little assistance to Ms Noble’s case. It was contended that, as Dr Smith had also conceded, his opinion would be modified were the truth of the underlying assumptions not made out. It was noted that the first time Ms Noble reported alcohol abuse was after she left employment with R & P and also that, as Dr Smith had acknowledged in cross-examination, depression could occur independently of work-related harassment and could be caused, for example, by alcohol abuse or financial stress. It was submitted that insofar as Ms Noble claimed she was starting to drink more in early 2005 that preceded most of the conduct in question.
The respondents also submitted that the applicant was not a “shrinking violet”, but was a “powerful and articulate, smart woman” and that after receiving a warning “she left her work without any good reason and any injuries she suffered as a result are of her own making and not anyone else”.
In the alternative, it was submitted that if the court was minded to award general damages the applicant’s claim was at the very low end of such damages and that she ought not to be awarded more than $1,000, consistent with the approach taken in Cooke v Plauen Holdings.
As counsel for the respondents contended, damages for conduct within the SDA are compensatory (see Hall v Sheiban) and the assessment of damages requires a comparison between the position in which the applicant might have been expected to have been in if the discriminatory conduct had not occurred and the situation she was placed in by reason of the discriminatory conduct.
The applicant has established that there was some sexual harassment in breach of s.28B of the SDA. The acts constituting unlawful sexual harassment consisted of Mr Baldwin looking at the applicant’s breasts frequently between 2003 and 2008; brushing past her breasts on three to four occasions up to mid 2006 and remarking to her in 2006 that he employed females based on the size of their breasts. The applicant must demonstrate that the conduct constituting unlawful discrimination caused her unemployment (and hence the claimed loss of $1,109.91) to merit any compensatory award for economic loss.
While the applicant may be compensated for consequences that “flowed” from the unlawful conduct (Leslie v Graham at [78] per Branson J), there is no evidence from the applicant or any other witness to establish that the applicant’s unemployment “flowed” from the sexual harassment.
Ms Noble continued to work for R & P for a considerable time after the specific instances complained of by her (see Hall v Sheiban at [60], Johanson v Blackledge at [39] and Poniatowska at [299] and [300]). While I accept that she found the sexual harassment offensive, the evidence does not establish that it contributed to her decision to leave her employment with R & P (see Rispoli v Merck Sharpe & Dohme & Ors [2003] FMCA 160 at [89]). On Ms Noble’s own evidence, she does not complain that the sexual harassment gave rise to her unemployment. In her affidavit sworn on 9 June 2010 Ms Noble attested that “I felt like they used the events that took place at work on 26 March 2008 to make it impossible for me to remain at work”. The circumstances which she alleged led to her resignation have not been shown to constitute or to have been caused by any conduct in breach of the SDA. Accordingly, any economic disadvantage which she suffered thereafter is not attributable to the conduct in breach of the SDA. On her own evidence there can be no award for special damages.
The applicant did not address the issue of causation in relation to the damages claimed. However, the entire economic loss, as claimed, resulted from the fact that Ms Noble ceased to work for R & P after she was warned on 31 March 2008. Her victimisation claim based on the events of March 2008 is not made out. She was not required to leave her job or constructively dismissed. I am satisfied on the evidence before the court that she resigned of her own volition. The circumstances which led to this have not been shown to constitute or to have been caused by any conduct in breach of the SDA or the RDA. Any economic disadvantage she suffered thereafter has not been shown to be caused by or attributable to the conduct in breach of the SDA.
Moreover, Ms Noble has not been unable to work as a result of the alleged conduct. She was re-employed at the same or similar level of remuneration very shortly thereafter and indeed received workers compensation payments to the full amount of her salary for the period she was off work. Dr Smith, her expert medical witness, gave evidence that any injury she was suffering as a result of the relevant conduct “rapidly resolved once she left the company” and he would not expect her to be suffering any further illness given her re-employment with a different employer. His evidence was that she had recovered well, having moved on to a new employer that she found quite supportive, that “she was not disabled from a psychiatric point of view” and that “although she harboured continuing psychological vulnerabilities”, he viewed her as “substantially recovered” (Transcript page 191). It has not been established that as a consequence of any unlawful conduct of the respondents within the SDA Ms Noble suffered any significant psychiatric damage resulting in economic loss.
Ms Noble has not established any entitlement to special damages. The damages claimed on that basis resulted from her departure from R & P, which has not been shown to be in any way to be attributable to the unlawful conduct of either or both of the respondents in breach of the SDA, notwithstanding that Ms Noble resigned in circumstances in which she was given a warning which she regarded as unjustified.
Ms Noble’s affidavit evidence relevant to her claim for general damages is that she:
experienced thoughts of hurt and helplessness about how [she] was treated at work by [the second respondent] and the lack of support [she] received at work. [She] experienced palpitations and high blood pressure.
She attests that “[o]n or around March 2006, [she] started crying spontaneously and started to avoid eating”. She claimed she started to drink “heavily” in March 2006, that she “started to feel anxious all the time and …fear going out”, that she had “had suicidal thoughts due to the events that took place at R & P Pty Limited” and felt like she was “letting [her] children and family down”. She concluded her affidavit with the statement that: “Prior to working at R & P Pty Limited I was confident, outgoing, happy and family oriented. Now I feel exhausted, unhealthy and disrupted.”
As discussed above, Ms Noble’s evidence about when she started drinking heavily was inconsistent. In cross-examination in relation to when she started drinking an average of about eight standard drinks per night, she responded that in early 2005 she “started increasing my drinking habit” (Transcript page 54). When questioned about evidence in her affidavit that her increase in drinking commenced in March 2006, her evidence was that it began “pretty much from the first month I was there” (Transcript page 55).
Dr Smith’s oral evidence was that people who are prone to depression may be more likely to resort to alcohol abuse, and vice versa, and that it was important to establish which was primary (Transcript page 191 lines 2 – 15). However, it has not been established that Ms Noble was prone to depression. In any event, evidence of the propensity of an applicant to resort to alcohol would not of itself negate an entitlement to compensation for an increase in alcohol consumption, if it were shown to be caused by the unlawful conduct in accordance with the approach taken by the Federal Court in South Pacific Resort Hotels Pty Ltd v Trainor in which Black CJ and Tamberlin J rejected the suggestion that “if the overall reaction of a victim could not have been anticipated by a reasonable person any damage suffered by such a person would be altogether outside the contemplation of the statute and thus not recoverable” (at [45]).
However, having regard to the inconsistency in Ms Noble’s evidence about the increase in her alcohol consumption and also the fact that much of the conduct of Mr Baldwin that Ms Noble found offensive was not unlawful conduct within the SDA, it has not been established that any alcohol problem was caused by the specific instances of unlawful sexual harassment established in the these proceedings.
Ms Noble started work at R & P as a temporary employee in December 2003. She contended in her affidavit sworn on 9 June 2010 that the respondent “made offensive comments to me and in my presence and behaved in an offensive manner throughout my period of employment at R & P Pty Limited”. More generally, I accept that Ms Noble reacted to perceived offensive behaviour on the part of Mr Baldwin and to the perceived unfairness of the 2008 warning. However offensiveness of itself is not unlawful conduct within the SDA.
In Dr Smith’s medical report annexed to his affidavit sworn on 2 November 2009 he stated that:
In my opinion the conduct experienced by Ms Noble combined with a lack of support from her other superiors resulted in the development of heightened levels of anxiety and an apprehensive expectation that further harm would befall her in the work setting. Ms Noble ruminated about her work and was having difficulty controlling her worry. She felt vulnerable in the work setting. She was restless, keyed up and on edge. She had difficulty concentrating and was irritable. Her sleep patterns were impaired. Her appetite diminished. Her mood became increasingly depressed. Thoughts of self harm emerged. Her self esteem and self confidence were lowered and she experienced feelings of inadequacy, pessimism, despair and hopelessness. There was social withdrawal.
Even accepting that Ms Noble experienced the feelings she deposed to in her affidavit evidence (and drank heavily), damages are not recoverable in these proceedings in relation to loss caused by matters other than the unlawful conduct within the SDA. Clearly Ms Noble found aspects of Mr Baldwin’s conduct to be offensive. Subject to what is said below, the impact of any such offensiveness falling short of unlawful conduct itself does not provide a basis for an award of damages in these proceedings.
Nonetheless, in relation to the conduct that is made out, I have borne in mind that, as French J stated in Hall v Sheiban at [61]:
In the case of sex discrimination and sexual harassment the identification of compensible loss and damage suffered is not to be assessed by reference to the reasonableness of the victim's response to the conduct in question…The question to be addressed so far as injury to feelings and humiliation is concerned is the factual one - what was the effect on the complainant of the conduct complained of?
(and see South Pacific Resort Hotels Pty Ltd v Trainor per Black CJ and Tamberlin J at [45] – [51]).
The respondents asserted that the applicant was not a “shrinking violet” and was “powerful and articulate”. It is unclear if these assertions are intended to imply that her “experience might equip her to respond more robustly and suffer less injury to feelings and humiliation than another” (Hall v Sheiban per French J at [69]). However this has to be determined as “a matter of fact in each case” (ibid). In this respect the applicant’s evidence about her state of mind and the negative consequences of all the conduct she experienced is supported by the evidence of Dr Smith, although there is no medical evidence as to any current impact on Ms Noble.
Dr Smith’s oral evidence was that the applicant suffered depression at the time that he interviewed her on 1 May 2009 (Transcript page 190). However he conceded that “if the facts as it is presented to be were obviously not a true reflection of what occurred, then, obviously, I would have modify my opinion” (Transcript page 190). He later stated that “I diagnosed her with an adjustment disorder with a mixed depressed and anxious mood” (Transcript page 191). He was not able to say whether the applicant would have been exhibiting the full range of observed symptoms in December 2005 (Transcript page 192).
Dr Smith also gave oral evidence that any injury Ms Noble was suffering as a result of the relevant conduct “rapidly resolved once she left the company” and he would not expect her to be suffering any further illness given her reemployment with a different employer (Transcript page 191). His evidence was that she had recovered well, having moved on to a new employer that she found quite supportive, that she was not disabled from a psychiatric point of view and although she harboured continuing psychological vulnerabilities he viewed her as “substantially recovered” (Transcript page 191). In a statement headed “In response to the specific questions raised in your letter of 29 April 2009 I would state as follows” annexed to his affidavit sworn on 2 November 2009 Dr Smith stated that the Adjustment Disorder had “partially resolved” and that Ms Noble was:
…not currently disabled from a psychiatric point of view and continues to harbour ongoing psychological vulnerabilities connected to her work situation, increased alcohol and cigarette consumption as a method of coping. Her work situation in my opinion with R & P has not completely resolved as displayed by her emotionality when discussing what occurred.
Dr Smith’s evidence supports a finding that to some extent that Ms Noble’s condition was contributed to by the sexual harassment (cf Lee v Smith & Ors [2007] FMCA 59 per Connolly FM at [197]). However as he stated in the medical report annexed to his affidavit sworn on 2 November 2009:
It is my opinion that against a background of ongoing bullying and harassment and inappropriate conduct on the part of Mr Baldwin, Ms Noble did emotionally decompensate. On a balance of medical probability she developed diagnostic criteria for an Adjustment Disorder with Depressed and Anxious Mood.
This reinforces the fact that much of the conduct Dr Smith described as affecting Ms Noble (such as ongoing bullying and inappropriate conduct) as part of the context in which Ms Noble developed a psychological disorder did not fall within the SDA. In addition, as indicated, some of the alleged harassment was not made out, no breach of the RDA was established and, importantly, the events of March 2008 did not constitute victimisation within the SDA.
Furthermore, it has not been established that Ms Noble had the condition diagnosed by Dr Smith prior to the events of March 2008 and the evidence does not establish that she continues to suffer psychological injury or “vulnerabilities” at the present time. While I accept that the sexual harassment experienced by Ms Noble contributed to the Adjustment Disorder with Depressed and Anxious Mood as diagnosed by Dr Smith as well as to the feelings of hurt and humiliation complained of, on the evidence before the court this was to only a very limited degree.
Since all the conduct that caused this impact on the applicant does not constitute unlawful conduct amounting to sexual harassment, the damages must be appropriately quantified to reflect this (see Gama v Qantas Airways Ltd (No.2) [2006] FMCA 1767 per Raphael FM). In such circumstances it is not appropriate for the quantum of damages for non-economic loss to be of the order sought by Ms Noble.
In relation to the injury to Ms Noble’s feelings it is also relevant to bear in mind that:
Damages for injury to feelings should be restrained in quantum though not minimal. On the other hand, awards compensating for injured feelings should not be so low as to diminish the respect for the public policy of the legislation: Horne & McIntosh v Press Clough Joint Venture (1994) EOC 92-591 at p77, 179.
(See Cooke v Plauen Holdings per Driver FM at [41]).
This case is at the lower end of the range of cases involving sexual harassment. It is not, compared to other such cases, a case involving conduct of the most serious nature. It is also difficult to assess the extent to which the established unlawful conduct contributed to Ms Noble’s reactions having regard to the evidence about other unpleasant (but not unlawful) conduct of Mr Baldwin and to the events of March 2008. The award of general damages in a matter such as this is not intended to be punitive but rather, as Raphael FM observed in Phillis v Mandic at [26], “to place complainants in the situation that they would otherwise have been in had the harassment not occurred”.
While the applicant has an entitlement to general damages for non-economic loss, the circumstances are such that having regard to the extent and nature of the unlawful conduct the award should be modest, albeit recognising that some of the conduct occurred over the period of Ms Noble’s employment, while other aspects involved specific infrequent instances of physical contact and a remark to Ms Noble. The medical evidence does not establish any significant on-going injury. I have borne in mind that it is necessary to consider the effect of such conduct on Ms Noble, as far as that can be done in assessing appropriate damages for hurt and humiliation in a broader context of a psychological response to conduct including other perceived offensive behaviour. In Qantas Airways Ltd v Gama [2008] FCAFC 69 French and Jacobson JJ acknowledged the difficulties of assessing general damages where a depressive illness was “a serious element of the sequelae of a relatively few and isolated episodes of discriminatory conduct” (at [99]). In this case the illness was not, on Dr Smith’s evidence, as serious as in many other cases and was a response to conduct that went beyond the unlawful conduct. The episodes of harassment were, except for the regular looking at Ms Noble’s breasts, relatively few and isolated instances. Relevantly, as their Honours pointed out in Qantas v Gama (at [99]), s.46PO(4)(d) “does not require that a damages award must provide full compensation”. By analogy with the reasoning in that case, the fact that the sexual harassment was a contributor to the feelings and illness experienced by Ms Noble, but not the “sole cause”, should be taken into account in determining an appropriate sum by way of compensation. The damages for hurt, humiliation and distress should be “restrained” (albeit not “minimal”) whilst nonetheless being calculated to have regard to the public policy of the legislation.
Cooke v Plauen Holdings, a 2001 case cited by the respondents, is not directly in point, albeit in that case there was conduct of a workplace supervisor (as here) and no evidence of a permanent psychological injury. The conduct in question occurred over a three week period and only involved relatively mild inappropriate personal comments, sitting close to the applicant, one incident of accidental physical contact in a darkroom of the photographic laboratory and invitations to the complainant to model, to go to the supervisor’s home and to have coffee with him. This conduct was found not to constitute sexual harassment but to amount to sex discrimination contrary to s.14 of the SDA. In assessing general damages of $750 for pain and suffering Driver FM referred to the recent tendency towards higher awards for non-economic loss, but observed that that was mostly in relation to “very serious” cases of sexual harassment (at [27]).
In all the circumstances an appropriate award for non-economic loss suffered by Ms Noble is the sum of $2,000 to be paid by the respondents. I will, as previously requested, hear the parties in relation to costs.
I certify that the preceding three hundred and forty-six (346) paragraphs are a true copy of the reasons for judgment of Barnes FM
Date: 28 April 2011
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