Nunan v Aaction Traffic Services Pty Ltd
[2013] QCAT 565
| CITATION: | Nunan v Aaction Traffic Services Pty Ltd [2013] QCAT 565 |
| PARTIES: | Dominique Mary Nunan (Applicant) |
| v | |
| Aaction Traffic Services Pty Ltd (First Respondent) Devine Constructions Pty Ltd (Second Respondent) Michael Hotson (Third Respondent) |
| APPLICATION NUMBER: | ADL069-12 |
| MATTER TYPE: | Anti-discrimination matters |
| HEARING DATE: | 29 July 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Jeremy Gordon, Member |
| DELIVERED ON: | 14 October 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. On a preliminary issue whether the Deeds of Release made between the Applicant and the First and Second Respondents have also released the Third Respondent from liability for sexual harassment because his liability is joint and several with those Respondents, the answer is in the negative. 2. The Third Respondent did sexually harass the Applicant and is ordered to pay to her compensation in the sum of $102,217 except that the sum recoverable under this order is limited to the amount by which that sum exceeds any amount already paid to the Applicant by the First and Second Respondents. 3. The Third Respondent has permission to apply to the tribunal to amend the amount of compensation he is ordered to pay to take account of any payment made by WorkCover to the Applicant for permanent impairment. 4. The Applicant is to inform the Third Respondent of the amount of any payment for permanent impairment made by WorkCover immediately upon its receipt. 5. The publication of the contents of the Deeds of Release and the contents of the agreements reached between the Applicant and the First and Second Respondents and produced to the tribunal is prohibited under section 66 of the Queensland Civil and Administrative Tribunal Act 2009. |
| CATCHWORDS: | ANTI-DISCRIMINATION - SEXUAL HARASSMENT– three respondents with joint and several liability – release of first two respondents by applicant – whether applicant can pursue the third respondent having released the others – whether tribunal may look at confidential deeds of release – whether non-publication order should be made - whether sexual harassment – correct quantum of award – correct form of order Anti-Discrimination Act 1991 (Qld) ss 119, 133, 209 Ritson v Commissioner of Police, NSW Police Force [2013] NSWADT 148 ATO Taxation Ruling 2424 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Represented by Karen Bow |
| RESPONDENT: | In person |
REASONS FOR DECISION
In this sexual harassment claim, there is a preliminary issue whether the release by deed of two respondents who were said to be jointly and severally liable for the alleged acts, also released the perpetrator of the acts.
If the claim can proceed, then there are issues as to whether there was sexual harassment and if so, the correct order to be made.
Background
Aaction Traffic Services Pty Ltd provide traffic management services on various sites. One of these sites was a development site at Hamilton Harbour in Brisbane operated by the developers Devine Constructions Pty Ltd. Ms Nunan was employed by Aaction as a traffic controller from October 2010 and soon afterwards started work at the Hamilton Harbour site.
Ms Nunan complained to the Anti-Discrimination Commission Queensland on 9 May 2011 of sexual harassment perpetrated by a fellow employee Mr Michael Hotson between her start date at the Hamilton Harbour site and 9 March 2011.
The complaint was accepted by the Commission and it was referred to QCAT on 4 July 2012. In contentions filed on Ms Nunan’s behalf the claim was cast as solely one of sexual harassment.
There were three respondents to the claim: Aaction, Devine and Mr Hotson.
The claim was made against Aaction and against Devine under section 133 of the Anti-Discrimination Act 1991. That makes a person ‘jointly and severally civilly liable’ for contraventions of the Act of their workers in the course of work.
In two separate negotiations and in two separate Deeds of Release which resulted from those negotiations, Ms Nunan released both Aaction and Devine from the claim. As a result she received one or more sums of money.
There is a rule of law that release of a person jointly liable for a debt also releases others jointly liable. The idea is that there is only one cause of action. If there is judgment against any one of those jointly liable for that cause of action, or if there is a release of any one of those parties, then the cause of action disappears. The result is that the claim cannot be pursued against the others who may be jointly liable.
If that rule applies to this case, then by releasing Aaction and Devine who were jointly and severally liable for the sexual harassment with Mr Hotson, Ms Nunan has also released Mr Hotson.
Confidentiality of the agreements and the deeds
In dealing with this preliminary issue, another question arises which needs to be dealt with first: whether it is right for the Tribunal when deciding this matter, to look at the agreements and Deeds of Release which Ms Nunan has made with Aaction and Devine bearing in mind those parties have informed the Tribunal that they are confidential. And if the Tribunal looks at them, whether Mr Hotson would also be entitled to look at them or at least to be made aware of any payment made to Ms Nunan under them. And whether it is right to preserve confidentiality as far as possible by making a non-publication order in respect of the agreements and the deeds.
The agreement reached with Devine was reached between the parties in negotiations between them outside the Tribunal. The parties notified the Tribunal that agreement had been reached and that a deed had been executed to that effect. The deed was described in that correspondence as a Deed of Confidentiality, Settlement and Release. A copy of the deed was not given to the Tribunal. Instead Ms Nunan’s representative indicated that she wanted to withdraw her claim against Devine because of the agreement.
The agreement reached with Aaction was reached in a compulsory conference held in the Tribunal. At the compulsory conference, a document was signed. The original of this document was placed in a sealed envelope and this was placed on the Tribunal file. After the compulsory conference, a deed was made up by solicitors for Aaction and was executed by Ms Nunan and on behalf of Aaction. The solicitors sent a copy of the deed to the Tribunal under cover of a letter which said that they anticipated that the deed would also be placed in a sealed envelope and placed on the Tribunal file.
The use of a sealed envelope in this way is one way the parties have to try to achieve a degree of privacy. Otherwise the documents may be seen by others who have a right to look at all Tribunal files under section 230 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). By section 74 of the QCAT Act, anything said or done in a compulsory conference is not admissible at any stage of the proceedings.
To my mind, both of the deeds need to be viewed by the Tribunal because they are relevant to the following matters:
a) whether the claim against Mr Hotson can proceed bearing in mind his liability is joint and several with the other parties to the deeds;
b) if the claim can proceed and is found to be proved against Mr Hotson, the extent to which an award of compensation can be enforced against him.
In relation to point (b) above, Mr Hotson needs to know the amount Ms Nunan has received since this reduces the extent of his ultimate liability.
Ordering disclosure of the deeds does not breach section 74 of the QCAT Act which preserves confidentiality of things done in a compulsory conference. This is because the deed was created and executed afterwards and it is clear from the solicitors’ letter that the deed was different in terms to the agreement reached in the compulsory conference.
If the Tribunal looks at the deeds there is no reason why Mr Hotson should not see them as well. It is only fair that a party see the material which may influence the decision maker.
Accordingly, I made an interlocutory order for the disclosure of the Deeds of Release of the First and Second Respondents to be made to the Tribunal and to the Third Respondent. I also ordered that the Deeds of Release shall be kept on the Tribunal file in sealed envelopes marked “not to be opened without an order of the Tribunal” and that their contents should not be published save as is necessary for QCAT to deal properly with the preliminary issue or for QCAT properly to calculate any order for compensation.
When considering whether to make a continuing non-publication order I have balanced the need for open justice with the need to preserve confidentiality of information whose publication would be contrary to the public interest. I think in order to encourage settlement of actions, it is important to continue to protect the confidentiality of the agreements and deeds. I shall be making a non-publication order under section 66 of the QCAT Act.
A similar approach was taken by Magistrate N Hennessy, Deputy President in the Administrative Decisions Tribunal New South Wales in Ritson v Commissioner of Police, NSW Police Force [2013] NSWADT 148. I have also considered the discussion in National Roads and Motorists Association v Whitlam [2007] NWSCA 81.
Dealing with the preliminary issue
The preliminary issue arises because of the joint and several liability of employers under section 133 of the Act. That section provides:-
If any of a person’s workers or agents contravenes the Act in the course of work or while acting as agent, both the person and the worker or agent, as the case may be, are jointly and severally civilly liable for the contravention, and a proceeding under the Act may be taken against either or both.
On the face of it, these words create one single indivisible cause of action. This is because the section establishes vicarious liability of the employer or principal of the person contravening the Act. This is despite the word “several” being used as well as joint.[1] This means that this is a classic instance for the application of the common law rule that release of a person jointly liable for a debt also releases others jointly liable.
[1]Parke B explained that this makes no difference to the rule King v Hoare (1844) 13 M & W 494 at 504.
I would point out that there is nothing in the deeds themselves which would permit Ms Nunan to proceed against Mr Hotson having settled her claim with the other respondents. The Deeds of Release were in standard form. They did not expressly reserve the right for Ms Hunan to proceed against Mr Hotson. Mr Hotson was not a party to the deeds. And the deeds cannot be regarded as a mere covenant not to continue with the claim against Aaction and Devine.
In Queensland, the effect of the rule of law where there is a judgment made against joint tortfeasors was altered by section 6 of the Law Reform Act 1995 (Qld). Section 6 provides that judgment recovered against a tortfeasor where damage is suffered by a person as a result of a tort shall be no bar to an action against any other person liable as a joint tortfeasor in respect of the same damage. In other jurisdictions in Australia similar statutory provisions have been made but at different times.
However, it is to be noted that section 6 only applies to a judgment (not to a release as in this case). In addition to this problem, section 6 only applies to “torts”: there is some doubt whether a breach of a discrimination statute is a “tort”.[2]
[2]The view of the NSW Court of Appeal in Commissioner of Police v Estate of Edward John Russell & Ors [2002] NSWCA 272, was that it is not a tort, seemingly also the view of Moynihan J in Mount Isa Mines Limited, Joe Kirvensniemi, Darryl Jameson, Chris Ahern, Percy Elliot v Narelle Marie Hopper [1998] QSC 287: [57] and [58]; however in Hall v Sheiban (1989) 20 FCR 217, Wilcox J described a claim under the Sex Discrimination Act 1984 (Cth) as a “statutory tort”.
On the face of it, it would appear section 6 does not apply to releases of those jointly and severally liable under the Anti-Discrimination Act 1991.
But was it really the intention of the legislature when enacting the Anti-Discrimination Act in 1991 to apply the rule about releases of those jointly liable for the same debt to contraventions of the Act? Some forty years earlier the predecessor of section 6 of the Law Reform Act 1995 was passed. This was section 5 of the Law Reform (Tortfeasors Contribution, Contributory Negligence, and Division of Chattels) Act 1952 (Qld). That made provisions in closely similar terms to that later enacted in section 6.
In Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574 the High Court considered the effect of similar words to those appearing in section 5 of the 1952 Act upon the common law rule of release.[3] It was held by the full court that the common law rule had been abolished. This was because the words of the statute could only be read to mean that with respect to judgments, the concept of a single wrong and a single cause of action in the case of joint tortfeasors had gone. And in the case of releases, not referred to in the statute:-
..the rule that a release given by one joint tortfeasor releases any others must have gone with it, for that rule is nothing more than another aspect of the same thing, namely, that there is only one cause of action against all joint tortfeasors in respect of the one tort.[4]
[3]The actual statutory provision being considered was section 11 of the Law Reform (Miscellaneous Provisions) Act 1955 (ACT) which was in closely similar terms.
[4]Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574 at 584.
Gummow J traced the history of the rule and the reason for it. The rationale of the rule was the practical unfairness of denying redress to a plaintiff injured by more than one tortfeasor who was unable to prove what damage was caused by each tortfeasor. Therefore the plaintiff was able to recover the totality of the damage from each tortfeasor.
In the context of the Anti-Discrimination Act 1991 it is significant here to recognise that the Act does not require that the award made against respondents who are jointly and severally liable should be equal. This is because section 209(1)(b) provides that the award should be such amount the tribunal considers appropriate as compensation for loss and damage caused by the contravention.[5]
[5]McCauley v Club Resort Holdings Pty Ltd (No 2) [2013] QCAT 243.
This means that the 1991 Act expressly provides for a result which is different from that envisaged by the common law rule. This is a strong indication that in providing in section 133 of the 1991 for joint and several liability of employers and agents of those contravening the Act, it was not intended that the common law rule should be reinstated.
Conclusion on preliminary issue
It follows that the release of one respondent jointly and severally liable under section 133 of the Anti-Discrimination Act 1991 does not also release other respondents also so liable. Therefore I answer the preliminary issue in the negative. This means that the claim can proceed despite the fact that it is continuing only against Mr Hotson, and despite Ms Nunan having released the other Respondents who were jointly and severally liable with him.
The sexual harassment
From October 2010, Ms Nunan and Mr Hotson were one of four traffic controllers working at the site operated by Devine at Hamilton Harbour. They would generally start their shift between 6am and 6.30am and would direct the construction traffic when it arrived on site. They were both employed by Aaction who had a contract to provide traffic control on the site. Ms Nunan and Mr Hotson would be in contact by radio and would also have visual contact because they would often work just feet away from each other if they were in the same part of the site. And they would speak together at break times, or during quiet times on site.
Mr Hotson’s behaviour which is the subject of this claim was in the form of personal comments and questions of Ms Nunan with a sexual theme, noises and gestures. It is alleged that these are examples only of what was said and done:
a) saying on the very first day they worked together that he wanted to stick his tongue in her anus;
b) asking her how old she was when she first had anal sex;
c) asking her “what colour are your pubes”;
d) telling her that he had masturbated over pictures of her;
e) asking her how big her clitoris was;
f) asking how she masturbates and at the time making finger motions backwards and forwards and asking her whether it was fast enough for her;
g) describing his penis to her;
h) asking her the proper way to give oral sex to a woman;
i) constantly saying that he would like to watch her having intercourse with her partner.
It is common ground that Mr Hotson would also engage in less serious sexual banter, or use of words with sexual connotations, both with Ms Nunan and with others. For example, Ms Nunan and Mr Hotson would play word games where they would think of words, working through the alphabet. Mr Hotson’s words would often have some sexual innuendo.
Mr Hotson and Ms Nunan did know each other from previous work. Mr Hotson’s behaviour on the two levels referred to above started from the first day they worked together on the site.
The behaviour occurred on a daily basis and throughout their shifts. Basically, almost all the interaction between them other than when they needed to discuss work matters, eventually resulted in a comment with some sexual connotation being made by Mr Hotson to Ms Nunan. He made such comments dozens of times a day and they would regularly lead to comments on the more serious level set out in paragraph [35] above.
This continued over a period of just over five months.
In the morning of 9 March 2011 Mr Hotson offered to help Ms Nunan with the functions on her new mobile phone with which she was not familiar. When Mr Hotson was operating the phone he found a photograph of Ms Nunan’s bare breasts. After a while he handed back the phone to Ms Nunan and told her what he had found. Licking his lips he said to her that he had just seen her “tits”, and that they were “spectacular”. He then proceeded to describe them and her nipples. He then made sucking noises as if sucking her nipples. He then rubbed his stop/slow stick over his trousers in the area of his penis whilst sticking his tongue out. He continued these types of sounds, comments and the sexual actions with his stop/slow stick for the rest of the working day.
As explained later in these reasons, the events of 9 March 2011 upset Ms Nunan so greatly that she suffered an emotional breakdown.
Mr Hotson does not believe Ms Nunan was upset by the incident of 9 March 2011 because to him, she seemed alright on the 9th and then for some reason which was not apparent to him, she seemed to change and came in on the 10th a different person. She screamed at him “what you did was reprehensible”. He says that this was followed by a string of obscenities.[6] He also points to a conversation about a new employee whom Ms Nunan did not like. He believes that it is possible that the starting of the new employee prompted Ms Nunan’s resignation and not the mobile phone incident.
[6]This is denied by Ms Nunan and it is unnecessary for me to resolve this particular issue.
I do not accept that Ms Nunan’s resignation had anything to do with the start of the new employee. This is denied by Ms Nunan and it is inconsistent with any of the other evidence including the contemporaneous written evidence and medical evidence. Also it would not begin to explain the serious psychological problems suffered by Ms Nunan because there is no other cause for those problems other than Mr Hotson’s behaviour. As for Ms Nunan seemingly not being upset by the incident of 9 March, the problem is that Mr Hotson was not sensitive to Ms Nunan’s feelings at all, whether apparent or real. The very fact that she referred to what happened on 9 March when she admonished him on the 10th shows that Mr Hotson is wrong about this. I accept however, he may well have been cajoled into a false sense of security by Ms Nunan’s coping mechanism which was to try to hide her true feelings, as explained below. But if he had been trained about the effect of sexual harassment, or understood it better, or had been naturally more sensitive to Ms Nunan’s feelings, instinctively he would have known that his behaviour was completely inappropriate.
As a result of a complaint about all these matters made by Ms Nunan on 18 March 2011 her employer initiated an investigation. During the investigation the main point made by Mr Hotson was that whilst he did discuss with Ms Nunan such things as masturbation and that he did make a number of “risqué” jokes using the type of language complained of, Ms Nunan would join in the banter and did not appear to mind. He described an occasion when Ms Nunan sent him a text message saying ‘I hope you are still holding your stick, Love Dom’ which was a sexual innuendo. Ms Nunan admits sending this text but denies that it had any sexual connotation.
Mr Hotson told me that he used to use sexual innuendos and word games etc to break up the day because it was a boring job. It was also common ground between the two sides that at work Mr Hotson would tell jokes with sexual innuendos both to males and to females. Mr Hotson claimed therefore that he treated everyone the same way. However, he did not speak to men the way he spoke to Ms Nunan by asking them in considerable detail about their own personal sexual matters. And there was a real difference between Mr Hotson’s sexual banter and the types of comments questions noises and gestures directed to Ms Nunan and described in paragraph [35] of these reasons.
Because of Mr Hotson’s admissions it is hardly necessary to look for further corroboration except as to the grossness of the sexual banter. There is corroboration as to that, in the evidence of Ellen Rafferty. She describes a story recited by Mr Hotson about a woman putting her leg up and a man putting coins in her vagina. Ms Rafferty responded by saying she did not want to hear this story.
At the employer’s investigation there was also corroboration from a fellow employee, Santo Ferraro. He recalled Mr Hotson asking Ms Nunan how she “liked her clit licked”. He describes Ms Nunan trying to ignore this and looking uncomfortable. Mr Ferraro said that Mr Hotson always had a sexual joke to tell and that his jokes were more crude than others in the workplace.
In such situations a woman at the receiving end of unwanted sexual comments in a male environment has to make a decision. Ideally, the woman would make it abundantly clear to the perpetrator that the comments are unwanted. Then if they continue she would complain to management.
This ideal approach is not always practical and may not be available if the employer is likely to be unsupportive, or to require proof: some employers regard the making of unsubstantiated allegations as a disciplinary matter. Whilst such a reaction to an allegation of sexual harassment might be victimisation under the Anti-Discrimination Act 1991, it can be seen that a complaint made by the victim might result in a risky battle with the employers.
Other employees faced with this problem might try to ignore the comments and hope that they cease. A further way to deal with it would be to go along with the banter to some extent and that way try to stop it getting out of hand. This was the way Ms Nunan decided to deal with it. One of the reasons for this was that she was strongly committed to her job and did not want to jeopardise it by reporting the matter. She thought in this way she would be able to indicate to Mr Hotson when he went too far. This is why she sent the text message, joked back to Mr Hotson, played words games with him, and to some extent talked about her sex life. She tried to keep the banter on a “brother/sister level”.
As part of the control mechanism she attempted, she did express shock when Mr Hotson asked her for advice as to the best way to give oral sex to a woman. And she did on a number of occasions tell Mr Hotson that he was disgusting, a “gimp”, or to “fuck off”. On my findings, sometimes this was sufficient to bring home to Mr Hotson that she did not like his behaviour[7]; other times it was not.
[7]There is corroboration for this from Gary Howcroft’s evidence to the employer’s investigation: he was a supervisor at the site.
The difficulty with the coping mechanisms which do not involve a complaint to management is that if they do not succeed, a woman might have to put up with the harassment for some time, and then find that she cannot cope after all. And the perpetrator may be encouraged by her apparent reaction. The result may be worse than if she had complained earlier in an attempt to nip the behaviour in the bud.
This is what happened to Ms Nunan. Despite having been of the belief that she could cope with the harassment, she found that she could not do so after all, and this resulted in more damage to her than would have been the case had she raised the matter earlier.
Conclusions on sexual harassment and its effect
On the above facts I have no hesitation in making these findings:
(1)From October 2010 for a period of 5 months until 9 March 2011 Mr Hotson on numerous occasions made remarks with sexual connotations relating to Ms Nunan and engaged in unwelcome conduct of a sexual nature in relation to her: these remarks and conduct were as set out in paragraph [35] of these reasons, and included other remarks and conduct of a similar nature.
(2)On 9 March 2011 Mr Hotson made remarks with sexual connotations relating to Ms Nunan and engaged in unwelcome conduct of a sexual nature in relation to her in the “mobile phone incident” of that date and for the rest of the day as described in paragraph [40] of these reasons.
This behaviour is within the terms of section 119(c) and (d) of the Anti-Discrimination Act 1991.
Such behaviour is not sexual harassment unless it also comes within section 119(e) or (f) of the Act which states that it must be:
(e) with the intention of offending, humiliating or intimidating the other person; or
(f) in circumstances where a reasonable person would have anticipated the possibility that the other person would be offended, humiliated or intimidated by the conduct.
As mentioned earlier in these reasons, I accept Ms Nunan’s evidence that she told Mr Hotson on several occasions that he had gone too far. I think he was well aware that his comments and behaviour were highly offensive. I say that because they were so explicit and inappropriate, and because they were not comments about sex in general but were specifically aimed at Ms Nunan. They sought her comments and were questions of her about her own sex life which were obviously going to be distressing to her since her relationship with Mr Hotson was solely a working one. It is my finding therefore that Mr Hotson was aware that they were offensive and humiliating and by continuing with them he intended to offend and humiliate Ms Nunan further. I do not accept his protestations to the contrary. In any case, a reasonable person would have anticipated the possibility that Ms Nunan would be offended, humiliated or intimidated by the conduct.
The mobile phone incident itself and the continuing behaviour for the rest of 9 March 2011, was of the same class for the same reasons.
The behaviour therefore over the period of 5 months and on 9 March 2011 was sexual harassment under the Act.
This behaviour must be contrasted with the sexual banter coming from Mr Hotson frequently and regularly over the same period for example, playing word games which inevitably would result in his using sexually explicit words. Ms Nunan does not allege that this banter was sexual harassment and I think this is legally correct because it was not ‘relating to the other person’ (Ms Nunan) as required by the Act under section 119(c). And it was not unwanted conduct as far as Ms Nunan is concerned contrary to section 119(d): this is because she went along with these games and participated in them to some extent.
The aftermath of the sexual harassment
For Ms Nunan, matters came to a head after the mobile phone incident of 9 March 2011. She found it difficult when giving evidence to explain the sequence of events from this time. But it is possible to piece this together from her own account, from contemporaneous documents, from the medical evidence from Jillian Millar her treating psychologist, and also from the evidence of Dr John Warlow an independent psychiatrist who made a report dated 14 September 2012 for WorkCover.
Effectively Ms Nunan suffered an emotional break down following the incident of 9 March 2011. She tried to go back to work the next day the 10th and she arrived at work but couldn’t continue because of the state she was in which was made worse when she saw Mr Hotson. She left the site, went home and resigned from her job by email that afternoon. She never went back to work.
On that day (10 March) she was in such pain with her teeth that she went to the dentist. She had cracked a tooth. She was told by her dentist this had been caused by her grinding her teeth, and he explained this was usually caused by stress. Ms Millar diagnosed Ms Nunan’s condition at that time in her letter to WorkCover on 26 May 2013. She said that Ms Nunan felt exposed, vulnerable and unable to cope with any stress and pressure and was crying uncontrollably. The incident of 9 March 2011 exceeded Ms Nunan’s existing coping mechanisms and led to an acute stress reaction with intense anxiety.
I accept the evidence about Ms Nunan’s condition at that time. The sexual harassment she had been suffering was a direct cause of this.
What happened in the period between 10 March 2011 and 23 March 2011 is unclear, however Ms Nunan told me that she was sitting and home crying and that she was drunk over this whole time. She also started smoking cigarettes again having given up three years previously. On 18 March 2011 Ms Nunan emailed her work to explain why she had left the site. She referred to ‘several days of careful consideration and contemplation’ over which she had decided to make a formal complaint about Mr Hotson. She explained that she thought she was coping with his behaviour and that she could handle the situation herself. She didn’t want to cause trouble. She just wanted a secure job. But now she realised that she was wrong. She explained that she was ‘not alright’ that she had been extremely distraught over what had happened. She said that she could not get out of her head the image of Mr Hotson (having looked at photographs of her breasts on her mobile phone) rubbing his pants over his penis with his stop slow stick, sticking his tongue out, making nibbling actions and noises and saying that she had great nipples.
The email goes on to say that she was taking legal advice and that she did not want contact until they heard otherwise from her lawyer.
Despite that request, her employers called a meeting for 23 March 2011 and Ms Nunan attended that meeting. At the insistence of her children, Ms Nunan saw her GP Dr Allan Phillips on the same day. This was the first time she had been to see her doctor since the incident of 9 March 2011. She was diagnosed then as suffering from an anxiety adjustment disorder.
From that time Ms Nunan was under care for her mental state. She received some counselling at that stage, and was referred to Ms Millar on 8 April 2011 and was seen on 20 April 2011 when Ms Millar noted anxiety, insomnia, intrusive thoughts and inability to concentrate. Ms Millar considered that Ms Nunan had an anxiety disorder with panic attacks, depression and reduced functioning.
On 27 March 2011 Ms Nunan tried to withdraw her resignation but this was not accepted by her employers.
She was put on antidepressant medication since about the time of the referral in April 2011 and also took Valium to help with her sleeping.
At this time Ms Nunan’s condition worsened and became a Major Depressive Disorder of moderate severity which encompassed also a Generalised Anxiety Disorder. She became an active suicide risk, but this had subsided by September 2012 although it needed close monitoring. In September 2012 Dr Warlow noted that the Major Depressive Disorder had lasted for 1½ years. It had manifested itself in being panicky in certain situations, anger and irritability, and being unhappy and tearful. Ms Nunan largely restricted herself to home only going out once every two weeks to shop. She was continually “down” with low energy and motivation levels, low self esteem and little pleasure. She had occasional suicidal thoughts. She had difficulty in concentrating and was easily distracted.
From April 2011 Ms Nunan saw Ms Millar weekly, then after a five month gap when WorkCover stopped sponsoring these visits, in February 2012 they recommenced on roughly a fortnightly basis. These were therapy sessions which included cognitive behavioural and coping strategies. In September 2012 she was seeing Ms Millar between once a week and once every two weeks.
In the medical reports, the fluctuations in Ms Nunan’s condition can be seen to coincide with various events. It was worse when she had difficulty in obtaining benefits from WorkCover, and when the health of her father deteriorated. It was also exacerbated by the ongoing “legalities”. But the medical opinion strongly supports the view that the sexual harassment was the substantial cause of her condition.
The reference to “legalities” are the inevitable problems arising from the case that Ms Nunan wished to bring against Aaction, against Devine and against Mr Hotson. She had made a complaint to the Anti-Discrimination Commission. Aaction and Devine were blaming each other for what had happened and they both defended the case on various grounds including a claim that they had taken reasonable steps to avoid the contravention occurring. By September 2012 Ms Nunan had needed to ask that her complaint be referred to QCAT. QCAT had made its first directions and the parties’ contentions were soon due for filing.
It is clear that the process of the litigation caused further distress for Ms Nunan. At that time in September 2012 she presented to Dr Warlow much more distressed that she was previously. She was in tears throughout the interview and more suicidal than before. He formed the view that the legal issues had impacted on her in a negative way.
Clearly at that time Ms Nunan was not fit for work. But Dr Warlow recommended that upon the ending of the legalities and the WorkCover reviews, she should be considered for host employment in an area of work which where there was strict observance of sexual harassment guidelines and women were respected. He took the view that the area of the construction industry or drama or unions where Ms Nunan had experience would be suitable. This would need to be organised as a slow return to work.
It is clear however from the Q-Comp reviews of 21 February 2013 and 15 May 2013 that the symptoms of depression persisted. I shall take it that Dr Warlow’s optimism for the future should date from the last QCAT hearing in July 2013.
The loss and damage - considerations
As a result of the sexual harassment Ms Nunan suffered a breakdown in the evening of 9 March 2011 and in hindsight there is clear medical evidence which I accept, that she suffered a Major Depressive Disorder of moderate severity soon after that time, which encompassed also a Generalised Anxiety Disorder. This stopped her from working, required continuous and frequent psychological and medicinal treatment and had a major impact on her life. In the light of Dr Warlow’s opinion, that impact will continue but lessen over the next year during which time she is likely to get back to work. The serious effects of the sexual harassment therefore have continued and will continue over a total period of about three years.
A large part of Ms Nunan’s financial losses may have arisen from her decision to resign from her employment on 10 March 2011. For example, if she had not done this she may have had a continued entitlement to her superannuation contributions through insurance cover, and it is possible she would have had access to a sick scheme. However there was no evidence about either of these things at the hearing.
Because of these possibilities however, it is necessary to consider the reason for her resignation. Clearly this was the behaviour of Mr Hotson particularly on 9 May 2011. She had a strong desire and a need, to escape from the thing that was causing her anguish.
This was not the best way to deal with what had happened. But there is no reason why Ms Nunan’s losses should be reduced because of it. In this respect Ms Millar in her letter of 26 May 2011 says that Ms Nunan’s ‘decision making processes may have been impaired due to the psychological strain she was under at the time’. In such circumstances, the duty of a party to mitigate their loss is not set too highly and they cannot be expected to make perfect decisions. In my opinion her decision was not unreasonable in the circumstances.
Ms Nunan’s losses arising from her resignation cannot be said not to be foreseeable loss and therefore irrecoverable as too remote. As found in McCauley v Club Resort Holdings Pty Ltd (No 2) [2013] QCAT 243 in claims under the Anti-Discrimination Act the test of remoteness is inappropriate.[8]
[8][177] to [182].
Ms Nunan did seek reinstatement once she started to receive treatment but this was refused by her employers.
Ms Nunan should be placed as far as financial possible, in the position in which she would have been if the sexual harassment had not occurred.[9] This requires a comparison of what would have happened if the sexual harassment had not occurred with what has actually happened.
[9]Hall v Sheiban (1989) 20 FCR 217 at 239.
If the sexual harassment had not occurred then Ms Nunan would not have resigned from her employment on 10 March 2011 and she would have continued working for Aaction for a while. Quite how long she would have stayed with Aaction is difficult to assess. The only evidence I have about it is from the parties.
The contract on the Hamilton Harbour site ended early in 2013. If it had not been for the sexual harassment I believe Ms Nunan would have continued to work for Aaction up to that time.
The question arises however, whether Ms Nunan would have continued working for Aaction after that. Aaction provided traffic control services on various construction sites directing construction traffic. Therefore at any one time the requirement of the business for traffic controllers would depend on how many sites the business was under contract to provide those services. Whilst permanent employees like Ms Nunan would hope to be redeployed on another site, this could by no means be guaranteed.
There were four traffic controllers who worked on the Hamilton Harbour site. Mr Hotson was moved from the site later in 2011, but he remained employed by Aaction. Sometime later he was dismissed by Aaction seemingly for redundancy. He was then re-hired as a casual. He said his casual hours were ‘intermittent, unpredictable and very difficult’ because the only hours he was offered was on the night shift. So he had to leave the company. He had looked for work elsewhere but this proved to be difficult to find and was intermittent. On 15 May 2013 Mr Hotson sent an email to the tribunal saying that he had not worked since November 2012 and that he had just started another job which was ending in June 2013. I believe this demonstrates the difficulty in finding secure work of the type that Mr Hotson and Ms Nunan were doing. What happened to the other two traffic controllers is not known although Ms Nunan assumed they had been moved to another site in Newstead where Aaction provided traffic services although she had no direct knowledge of this.
Mr Hotson was of the view that Ms Nunan would not have been favoured over other employees when it came to redundancy because of her union connections, but there was no other evidence to support this suggestion.
At the hearing Ms Nunan told me about her work history. After having four children in quick succession, although her working career was not exactly continuous she did work in various jobs and she had experience which would enable her to offer her services in various capacities. In addition to this, she had a long term aim of training to become a workplace health and safety officer. I have taken that work history into account in my assessment.
There is a distinct possibility that Ms Nunan would have been made redundant by Aaction at some point like Mr Hotson was. Although at the hearing Ms Nunan was optimistic about her chances of staying on with Aaction, this was not based on any hard evidence and I think it was overstated. If she had been made redundant, then she would have been looking for other work. I do believe despite her workplace experience that she would have suffered a similar problem as faced by Mr Hotson when he was looking for work. There would probably been a gap in her employment and she may well have had to take on work at least on a temporary basis which was insecure and not so well paid.
In assessing the correct level of compensation it is important to try to reach the correct level of loss suffered by Ms Nunan to reflect these variables.
The appropriate orders
Under section 209, there are a number of orders which can be made on making a finding of a contravention of the Act. I do not regard it as appropriate after everything that has happened in this case to order anything other than compensation under section 209(1)(b) of the Act.
Such an order is for loss and damage caused by the discrimination. Section 209(5) states that “damage” in relation to a person includes the offence, embarrassment, humiliation, and intimidation suffered by the person. The award should therefore be in two parts: financial loss and non-financial loss.
Award for financial loss
I take the view that as a result of the sexual harassment Ms Nunan lost earnings from her employers Aaction from one week from the date of her resignation, that is 15 March 2011 to say the end of January 2013 when (roughly) she would have left the Hamilton Harbour site. From 1 February 2013 she lost a chance of continuing with Aaction. That chance I am assessing as 75% because of the exigencies arising from the nature of the work which I have described above. If the 25% possibility of losing her job with Aaction at that time had occurred, she would have looked for other work, but there would have been a gap in her employment and she would have had only a chance in the following year of obtaining similar full-time employment. I think that chance would be about 50%. The alternative would have been more intermittent work. Doing the best I can with the limited information available I shall discount the loss of earnings at Aaction by 17.5% to account for these factors up to 1 February 2014. After that time, over the following 6 months I think the discount should be 12.5%. The difference is to allow for the improved chances of Ms Nunan to find permanent work as time progressed, had she lost her job with Aaction when the Hamilton Harbour site closed.
At the hearing, there was insufficient evidence submitted to make the appropriate calculations and the parties were given the opportunity to provide figures in writing. On Ms Nunan’s behalf spreadsheets have been submitted showing the calculations of her loss and I am assisted by these. They are all based on “normal weekly earnings” of $1,230 per week. This is an amount calculated by WorkCover and includes the normal salary and overtime, but excludes any allowances for example those related to travelling to work. There was some discussion about such allowances at the hearing since Ms Nunan was receiving these but she had no such expenditure since she was not actually working. I am content to use the normal weekly earnings (NWE) of $1,230 per week. It has been put forward on Ms Nunan’s behalf and seems to be about right. It does omit any pay increases but there has been no evidence about these provided at all (despite the opportunity given to do so).
The spreadsheets submitted on Ms Nunan’s behalf also include an amount for loss of superannuation guarantee payments made by the employers and I consider this in principle to be a correct head of claim, but a deduction should be made for the 15% tax which would have been paid on the receipt of this in the fund.
As for the period over which these losses should be calculated, I have no alternative but to accept the view expressed by Dr Warlow that Ms Nunan will be able to return to work over a period of six months or so, with a return to full-time work over a period of a year or so from the ending of the WorkCover review. I take this to mean from the ending of the legal proceedings since that will be likely to have the greater impact. To this I add Ms Nunan’s own optimism for the future – she told me that she wants to work out the issues and move forward. This means that about one year after the QCAT last hearing on July 2013, that is July or August 2014, it is to be expected that Ms Nunan will be in no worse financial position in a work context because of her health than she would if the sexual harassment had not occurred. Put another way, in legal terms if she has any loss of income after that time it is not caused by the sexual harassment but by other things. Accordingly the losses should cease in August 2014.
All the figures used to calculate past loss should be gross of tax. This is because damages for loss of earnings in discrimination and sexual harassment cases are taxable in the hands of the recipient.[10] Loss of future earnings or loss of future earning capacity are capital in nature and are not taxable in the hands of the recipient.[11] I have therefore made that calculation net of tax.
[10]ATO Taxation Ruling 2424.
[11]ATO Taxation Ruling 2424 at [21].
It is agreed on both sides that from Ms Nunan’s gross loss, the payments made or to be made by WorkCover over the same periods should be deducted, and I agree that this is the correct approach.[12] The WorkCover payments were as follows:-
[12]The reasoning appears in McCauley v Club Resort Holdings Pty Ltd (No 2) [2013] QCAT 243 at [272].
| Period | Weeks | WorkCover payments per week | Totals |
| 15 March 2011 to 12 September 2011 | 26 | $1,045.50 (gross) | $27,183 |
| 13 September 2011 to 18 March 2013 | 79 | $799.50 (gross) | $63,161 |
| 19 March 2013 to 14 October 2013 | 30 | $931.35 (gross) | $27,941 |
| Total gross WorkCover payments to date of this decision: | $118,285 | ||
| 15 October 2013 to early August 2014 | 41 | say, $671 (net) | $27,511 |
| Total likely future payments net of tax: | $27,511 | ||
The calculation of Ms Nunan’s losses in the periods which I am considering is as follows:-
Period Weeks NWE Discount Loss Past loss 15 March 2011 to end January 2013 98 $1,230 0% $120,540 End January 2013 to 14 October 2013 37 $1,230 17.5% $37,546 Total past loss of earnings to the date of this decision: $158,086 Add 9% for lost guaranteed superannuation contributions less 15% tax on receipt: $12,094 Total gross past financial loss: $170,180 Deduct WorkCover payments: $118,285 Actual past financial loss: $51,895 Future loss 15 October 2013 to 1 February 2014 16 say, $850 (net) 17.5% $11,220 2 February 2014 to early August 2014 26 say, $850 (net) 12.5% $19,338 Total future loss of earnings net of tax: $30,558 Add 9% for lost guaranteed superannuation contributions based on gross loss of earnings of $44,218 = $3,980 less 15% tax on receipt: $3,383 Total future loss after tax: $33,941 Deduct likely future WorkCover payments net of tax: $27,511 Actual future financial loss: $6,430
As for interest, the past financial loss is spread over 2½ years before the date of this decision. A reasonable rate for interest is 6% which should be applied for half that time. On that basis I calculate the correct award of interest at $3,892.
Ms Nunan is currently being assessed by WorkCover for permanent impairment. A final decision on that had been postponed by WorkCover until the conclusion of these proceedings. If Ms Nunan receives a lump sum for permanent impairment, this should also be deducted from this award.[13] I shall therefore give permission to Mr Hotson to apply to amend the award should this occur. I shall order Ms Nunan to inform Mr Hotson should she receive a WorkCover permanent impairment payment.
[13]The reasoning appears in McCauley v Club Resort Holdings Pty Ltd (No 2) [2013] QCAT 243 at [273] to [275].
The award against Mr Hotson should also be reduced by any amounts Ms Nunan has received already from the other respondents.
Award for non-financial loss
Where as in this case a recognised personal injury is caused by the contravention then it is an acceptable to be guided by the level of compensation which might be awarded at common law for that personal injury.[14] This was the approach of the learned member in Barney v State of Queensland and Anor [2012] QCAT 695[15] and this approach was not challenged on appeal[16].
[14]Hall v Sheiban (1989) 20 FCR 217 at 239.
[15]see [132] and [134].
[16]State of Queensland & Anor v Barney [2013] QCATA 104.
The objects of the QCAT Act include requirements to promote the quality and consistency of tribunal decisions[17] and to enhance the quality and consistency of decisions made by decision makers[18]. It is a function of the tribunal to ensure like cases are treated alike[19]. Accordingly it is also right for the tribunal to be guided by the level of previous similar awards in like cases.
[17]Section 3(c).
[18]Section 3(d).
[19]Section 4(d).
Consistency in awards between the Queensland tribunals and the federal courts which have parallel but not equivalent jurisdiction in Anti-Discrimination matters, cannot be achieved at least in a first instance decision of this type because of differences in the level of awards. For example, in KW v BG Limited, DP & DF [2009] QADT 7, sexual harassment caused the complainant to suffer a Major Depressive Disorder which remained untreated and so lasted for over 3 years, and which was not necessarily going to resolve at the conclusion of the litigation. An award of $15,000 was made for non-financial loss. Allowing for price inflation this award would be $16,500 today.
This can be contrasted with Poniatowska v Hickinbotham [2009] FCA 680 where the applicant faced sexual harassment at work over nearly a year and was then dismissed because she did not accept the behaviour. She had suffered severe depression over the three years before the hearing, which was likely to improve after the hearing, and she was expected to return to work after one or two years. An award of $90,000 was made for non-financial loss. Allowing for price inflation this award would be $100,000 today.
These differences may also be apparent in less serious cases, so for example in McCauley v Club Resort Holdings Pty Ltd (No 2) [2013] QCAT 243 as a result of sexual harassment which continued over a period of three days, the complainant suffered an adjustment disorder with mixed anxiety and depressed mood over a period of nine months or so, although the psychological effects of the harassment lasted longer than that. The award for non-financial loss was $20,000.
This can be contrasted with Evans v National Crime Authority [2003] FMCA 375, where as a result of sex discrimination perpetrated by her employers, the complainant suffered clinical depression over a period of about six months, which by the time of the hearing three years later continued as mild depression. An award of $25,000 was made for non-financial loss. Allowing for price inflation this award would be $32,000 today.
In Barney v State Of Queensland and Anor [2012] QCAT 695 the complainant was subjected to bullying, harassment and racial abuse at work causing him to suffer a major depressive episode of moderate severity with symptoms continuing over a period of about 20 months but which still affected him 5 years later. An award of $40,000 was made for non financial loss. The learned member assessed the award as $55,000 on a full liability basis but discounted it to $40,000 because there were other causative factors. The case was considered on an appeal against the proper amount of the discount, and the assessment of $55,000 for this injury was not challenged. In Barney the learned member appears to have sought greater consistency with federal court decisions than with previous Queensland tribunal decisions.
I regard the injury suffered by Ms Nunan in this case closer to that of Barney than it is to McCauley and in the comparable cases cited there. The period over which the harassment was suffered was much longer than in McCauley. However, the effects of the harassment appear to be not as long lasting in Ms Nunan’s case as they were in Barney. Perfect consistency is not possible to achieve between all the first instance authorities: in my opinion a fair and appropriate award in this case for non-financial loss is $40,000.
I do not award interest on the compensation for non-financial loss because it is assessed at the date of this decision.[20]
[20]For reasons why it is inappropriate to award interest in these circumstances see McCauley v Club Resort Holdings Pty Ltd (No 2) [2013] QCAT 243 at [85] to [87].
Bringing the figures together
The total award payable by Mr Hotson is calculated as follows:
Non-financial loss (personal injury and the offence, embarrassment, humiliation and intimidation) $40,000 Past financial loss (using gross figures for the purpose of tax) $51,895 Interest on this amount $3,892 Future financial loss (net of tax) $6,430 Total: $102,217
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