Sharma v QSR Pty Ltd t/as KFC Punchbowl

[2009] NSWADT 166

CITATION:	Sharma v QSR Pty Ltd t/as KFC Punchbowl [2009] NSWADT 166
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT J Sharma RESPONDENT QSR Pty Ltd t/as KFC Punchbowl
FILE NUMBER:	071102
HEARING DATES:	17,18 March 2008, 3 April 2008, 30 July 2008
SUBMISSIONS CLOSED:	30 July 2008
DATE OF DECISION:	30 June 2009
BEFORE:	Smyth M - Judicial Member; Hayes E - Non-Judicial Member; Mooney L - Non-Judicial Member
CATCHWORDS:	Sexual Harassment in workplace, Sex Discrimination in work
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997Anti-Discrimination Act 1977 Evidence Act 1995
CASES CITED:	Briginshaw v Briginshaw (1938) 60 CLR 336 Chand v Rail Corporation of NSW (No 2) [2009] NSWADTAP 27
REPRESENTATION:	APPLICANT P Elias, solicitor RESPONDENT J Murphy, barrister
ORDERS:	1.That the complaints of sexual harassment is substantiated in relation to the Bondi incident (Allegation 5) and the leg pulling incident (Allegation 10) alleged to have occurred on or about 9 and 10 May 2007. 2.That the complaints of sexual harassment are not substantiated in relation to the complainant’s other allegations. 3.That the complaint of sex discrimination is substantiated in relation to the Bondi incident (Allegation 5) and the leg pulling incident (Allegation 10). 4.That the complaint of sex discrimination is not substantiated in relation to the complainant’s other allegations. 5.That the respondent pay the applicant $15,000 in damages within 28 days.

REASONS FOR DECISION

Introduction

1 Ms Sharma worked for the respondent, QSR Pty Ltd, in customer service at a KFC restaurant. She commenced in August 2005 when she was 15 years old and continued to work there until May 2007.

2 Ms Sharma alleged that she was sexually harassed and subjected to sex discrimination at work in the period early February 2007 to 10 May 2007.

3 On 11 May 2007 Ms Sharma complained to Mr Singh, the Restaurant Manager about the behaviour of Mr Matic, an Assistant Manager at the KFC store she worked in. She was asked to put her complaint in writing and did so on 12 May 2007. The following day she was asked to fill out a complaint form and she handed that form to the respondent on 14 May 2007. She did not return to work after making her complaint.

4 On 15 May 2007 Ms Sharma lodged a complaint of sexual harassment against Mr Matic with the President of the Anti-Discrimination Board of NSW. On 22 May 2007 Ms Sharma lodged a complaint of sexual harassment and sex discrimination against her employer, QSR Pty Ltd.

5 Ms Sharma’s complaint against Mr Matic was settled and this decision concerns her complaints against QSR Pty Ltd.

6 The President of the Anti-Discrimination Board referred her complaints of sex discrimination and sexual harassment in employment against QSR Pty Ltd to the Tribunal on 30 August 2007 on the basis that endeavours to resolve the complaint by conciliation had been unsuccessful.

7 Mr Matic was not a party to these proceedings and the Tribunal had no direct evidence from Mr Matic before it.

8 The respondent submitted that the complaints should be dismissed. They contended that the actions of Mr Matic did not constitute sexual harassment or sex discrimination. The respondent submitted that Ms Sharma was a willing participant in the exchanges between herself and Mr Matic and did not complain of them until 10 May 2007.

9 Furthermore the respondent contended that they had not authorised Mr Matic to sexually harass Ms Sharma and that they had taken all reasonable steps to prevent Mr Matic engaging in any unlawful conduct.

Relevant Law

Sexual harassment

10 Under s. 22A of the Anti-Discrimination Act 1997 [the AD Act] a person sexually harasses another person if:

(a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the other person, or
(b) the person engages in other unwelcome conduct of a sexual nature in relation to the other person,
in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated.

11 It is unlawful for an employer to sexually harass an employee [s. 22B(1)(a)] and unlawful for an employee to sexually harass a fellow employee [ s. 22B(2)].

12 In Chand v Rail Corporation of New South Wales (EOD) [2007] NSWADTAP 54 the Appeal Panel of this Tribunal set out the test for sexual harassment where it is alleged to have occurred between fellow employees in breach of s 22B(2) of the AD Act . The Appeal Panel set out the four elements that have to be satisfied under s. 22A [at 24] as:

a) one person has engaged in unwelcome conduct;
b) that conduct is a sexual advance, a request for sexual favours or other conduct of a sexual nature;
c) the conduct is “in relation to” another person; and
d) a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated by that conduct.

13 The test in element (d) is an objective one. As the Appeal Panel stated in Chand [at 26]

The question is not whether the person was offended, humiliated or intimidated by the conduct. Rather, the question is whether a reasonable third party would have anticipated, in all the circumstances, that the person would have had that reaction.

Sex discrimination

14 The applicant maintained that she had been subjected to direct sex discrimination. She submitted that a hostile work environment was created by the sexual harassment over a lengthy period of time and that the respondent had failed to take all steps to deal with the harassment and properly deal with her complaints.

15 Section 24 (1)(a) of the AD Act defines direct sex discrimination. Direct sex discrimination occurs when an employer treats a person less favourably on the ground of sex than the employer treated or would have treated a man in the same circumstances or in circumstances that are not materially different. Consequently the question for the Tribunal is did the employer, on the ground of sex or a characteristic of sex, treat Ms Sharma less favourably than it treated or would have treated a man in the same circumstances or in circumstances that are not materially different?

Onus of proof

16 The onus is on Ms Sharma to prove her allegations of sexual harassment and sex discrimination.

17 The respondent submitted that the Briginshaw test applied, not so much because of the seriousness of the allegations, but because of the consequences. In their submission this was a case that, if made out, would have led to the dismissal of Mr Matic. An employer would need to have been comfortably satisfied before taking this action.

18 We have applied the civil standard of proof. The correct approach to the onus of proof was canvassed by the Appeal Panel of this Tribunal in Chand v Rail Corporation of NSW (No 2) [2009] NSWADTAP 27. The Appeal Panel referred to the Federal Court’s discussion of the “Briginshaw standard” in Qantas Airways v Gama [2008] FCAFC 69 [at 55] and concurred with the approach taken by Branson J [at 139] in the Gama decision.

The correct approach to the standard of proof in a civil proceeding in a federal court is that for which s 140 of the Evidence Act provides. It is an approach which recognises . . . that the strength of the evidence necessary to establish a fact in issue on the balance of probabilities will vary according to the nature of what is sought to be proved – and, I would add, the circumstances in which it is sought to be proved. [Branson J at [139] ]

19 In addition the Appeal Panel referred to s 140 of the Evidence Act 1995 at [56]. That section states:

(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence, and
(b) the nature of the subject-matter of the proceeding, and
(c) the gravity of the matters alleged.

20 We have taken the approach set out in Chand v Rail Corporation of NSW (No 2) referred to above including the factors set out in s 140 of the Evidence Act 1995.

21 Ms Sharma alleged that Mr Matic engaged in unwelcome conduct of a sexual nature toward her when they both worked at the KFC Restaurant. She alleged that Mr Matic made comments of a sexual nature to her, touched her on a number of occasions by rubbing past her as he walked by, dragged her along the floor by the leg, touched her on the leg and growled at her like a cat, showed her pornographic images on his mobile phone and gave her boyfriend pornographic material in her presence.

When is an employer liable for the acts of their employees?

22 Section 53 of the Anti-Discrimination Act 1997 covers liability of employers for the acts of their agents or employees. Section 53(1) states that

(1) An act done by a person as the agent or employee of the person’s principal or employer which if done by the principal or employer would be a contravention of this Act is taken to have been done by the principal or employer also unless the principal or employer did not, either before or after the doing of the act, authorise the agent or employee, either expressly or by implication, to do the act.

23 Section 53 (3) provides a defence if the employee took all reasonable steps to prevent the employee from contravening the Act. The onus is on the respondent to prove that they did not authorise the actions of their employee either expressly or by implication. Similarly the onus is on the respondent to prove that they took all reasonable steps to prevent their employee from contravening the AD Act [s. 104 AD Act].

24 Ms Sharma allegations are set out in her statement of 22 November 2007 in evidence before the Tribunal. For convenience we have numbered each allegation.

Comments of a sexual nature

25 Ms Sharma stated that Mr Matic made a number of comments of a sexual nature to her. These included that:

on approximately four occasions Mr Matic said to Ms Sharma ‘You have a nice ass’;(Allegation 1)

on approximately ten occasions Mr Matic said words to the effect of ‘I wouldn’t mind if the buttons on your top went all the way down’;(Allegation 2)

in or about early February 2007 Mr Matic said to the applicant ‘I wouldn’t mind rooting your sister’;(Allegation 3)

in or about early May 2007 Mr Matic said to the applicant’s mother ‘if you were single, I would have you’; (Allegation 4)

on or about 9 May 2007 Mr Matic said to the applicant that he wanted to take the applicant to Bondi where the applicant could swim nude;(Allegation 5)

on or about 9 May 2007 Mr Matic said to the applicant “You would go wild if drunk.”(Allegation 6)

in or about April or early May 2007 Mr Matic showed the applicant pornographic material on his mobile phone and said how he loved filthy pornos (Allegation 7) and

in or about early May 2007 Mr Matic gave pornographic material to the applicant’s boyfriend in the car park of the KFC Punchbowl store in the view and presence of the applicant(Allegation 8)

Touching

26 On at least two occasions Mr Matic rubbed his body against the applicant as he walked past in the workplace. (Allegation 9)

27 On or about 10 May 2007 Mr Matic pulled the applicant along the ground by her left leg at the KFC Punchbowl store and stared at the applicant when other staff intervened. A short time later he had approached her again, bent down in front of her, touched her leg and started growling like a cat. He had then stared at her until other staff intervened. He had returned and placed his face against hers. Ms Sharma’s evidence was that Mr Kenny had then said to Mr Matic “Leave her alone. She is really scared.”(Allegation 10)

Ms Sharma’s complaint to her employer

28 On 11 May 2007 Ms Sharma made a verbal complaint to Mr Singh, the Restaurant Manager. In her statement of 22 November 2007 Ms Sharma said she told Mr Singh that “I don’t like the way Daniel (Mr Matic) is treating me at work. He was pulling my leg the other day”. Mr Singh told her to put it in writing and give it to him the next day. Ms Sharma stated that on or about that day she decided she could not return to work at the store due to the stress she had suffered by the sexual harassment and sex discrimination.

29 Ms Sharma stated that she gave Mr Singh a two page written complaint on 12 May 2007 that she did not keep a copy of. She then alleged that Mr Singh had said that “Daniel always jokes around. These are only little things. You should forget about them.”

30 She had told Mr Singh that she would take it further and he said he would get statements from others at work and would take it to Satish (the Area Manager, Mr Chandra). She then called Mr Singh on 13 May 2007 and asked what was happening. He asked her to come to the store and fill out a complaints form. She filled out the form on 14 May 2007. Her evidence was that Mr Singh called her a few days later to ask her if she could attend a meeting with the Human Resources Manager at Bondi Junction on 21 May 2007. She claimed that she told him she could not as she was doing a nurse’s course.

31 That evidence conflicts with the information contained in her complaint that the Anti-Discrimination Board received on 22 May 2007. In that complaint she stated that she had informed Mr Singh of her grievances and that he had not taken them seriously. Among other things she stated that she had told Mr Singh numerous times of the incidents and that she wanted to see him and the owner of the store. Mr Singh had said he did not have the time and that he could not take the matter further. Under cross examination she agreed that this was not true.

Ms Sharma’s evidence

32 Ms Sharma’s written statement dated 22 November 2007 including four annexures was in evidence before the Tribunal. The annexures included an incident report made to her employer dated 14 May 2007, a letter from a clinical nurse specialist that confirmed she had been treated at a mental health service from March to May 2007, a one page document from Mr Kenny dated 12 July 2007, one of Ms Sharma’s work colleagues, and an excerpt from QSR’s sexual harassment policy. In addition the applicant provided the Tribunal with a four page excerpt of progress notes from a community health service she was treated by, a letter from Ms Smith dated 3 March 2008 and a statement from her husband Mr Jones dated 22 November 2007. Mr Jones also appeared before the Tribunal.

33 Ms Sharma’s written incident report of 14 May 2007 specified Daniel (Mr Matic) as the person involved in the incident and outlined allegations including sexual comments and sexual talk. She gave the examples of “sexual comments about my ass” “if I was drunk I would go off”, “talking dirty about my Family, relatives”, “touches me in ways I feel wrong”, “pornography dealings from work”, “rubbing my leg” “facial expressions. She also stated that “told him to stop but still continues.” Ms Sharma also stated that she had “lodged a (sic) official complaint to harassment and sexual harassment board - upon directions from my legal advisors (sic).”

34 The original of Mr Kenny’s one page document dated 12 July 2007, referred to above, was also tendered as a separate exhibit. Mr Kenny was a work colleague of Ms Sharma and also a cousin of her then boyfriend (now husband) Mr Jones who also gave evidence before the Tribunal. In that document Mr Kenny described an incident that occurred on 10 May 2007. He said that Ms Sharma was sitting in front of the safe and he was counting money in his register. He described Mr Matic approaching Ms Sharma and said that Mr Matic had

“pulled and dragged her by the leg along the floor and jasmine (Ms Sharma) said to matic (Mr Matic) stop you are really scareing (sic) me but he continued and dragged jasmine to the burger station and he then let go . Then jasmine seemed to be frightened and distreessed (sic), then matic went to the back and approached jasmine again bent down in front of jasmine and started touching her legs and making cat noises growling he then got up and started staring at jasmine for a while then left to get his bag and returned to jasmine put his face next to hers then I said to matic leave her alone cause she is really scared so he did back of then while leaving he made funny faces and left the store.” [sic]

35 Mr Kenny also referred to an incident on the same day where Mr Matic has offered to drop him and Ms Sharma home. Mr Matic has wanted to drop him first and “go to bondi with jasmine he told jasmine he would buy her ice cream and told her not to bring a swimming costume or any clothes as she wont need it and he wont bring any clothes as it is a free world and jasmine can swim in the nude.” He also alleged that on other days Mr Matic made a “lot of filthy remarks to jasmine and numerous of (sic) times jasmine told him she has a boyfriend and did not like his comments but he still continued.”

36 In addition he said that Mr Matic always had pornographic material on his phone and displayed it to other staff and that he “used to talk sexual to staff about his private and his sexual fantises [sic].

Mr Kenny’s evidence before the Tribunal

37 At the hearing Mr Kenny appeared as a witness for the respondent and provided a written statement dated 1 February 2008. He was cross examined.

38 In addition an incident report completed by Mr Kenny on 14 May 2007 and given to his employer was also in evidence. In that report Mr Kenny described the leg pulling incident and recorded the date of the incident as 9 May 2007. He stated

“..Daniel got hold of Jasmines legs and was pulling her, no-one said anything or did anything because it seemed to me as if they were mucking around and having a laugh. Before I left to go home Daniel approached Jasmine and apologised for taking the joke too far.

39 In Mr Kenny’s statement of 1 February 2008 he also described the “leg pulling incident” between Mr Matic and Ms Sharma. He said that on 14 May 2007 the Restaurant Manager questioned him about a complaint made by Ms Sharma about Mr Matic and asked him to prepare a formal written statement. He stated that he did not read Ms Sharma’s complaint and that his statement was what he remembered. He also said that he spoke to Mr Matic before he did his statement and he told him “it was probably about the incident when he pulled Jasmine’s leg to move her way from the safe.”

40 His version of events about the incident on 10 May 2007 in his statement of 1 February 2008 differed in several respects from the document dated 12 July 2007 referred to above (Annexure C of Ms Sharma’s statement). Mr Matic acknowledged that he had signed that statement in July 2007.

41 Rather than describing Ms Sharma as frightened and distressed he described Ms Sharma and Mr Matic as “just mucking around like they normally did”. He described how Ms Sharma was sitting in front of the safe and Mr Matic “needed to get into the safe, and he dragged Jasmine away from the safe by pulling her leg.” He said it was the first time that he had seen Mr Matic touch Ms Sharma and that they were both laughing and having fun.

42 He denied having heard Ms Sharma tell Mr Matic “stop you are really scareing (sic) me” and said that Ms Sharma told him when they prepared the statement that this is what she said to Mr Matic. He said that he did not remember Ms Sharma “looking frightened or distressed” on the day of the incident and said that when he was preparing that statement Ms Sharma had “told me that she felt frightened and distressed so I put it into my second statement.”

43 He said that:

Afterwards, Daniel went to Jasmine and apologised for dragging her by the leg and taking the joke too far, but Jasmine was not really paying attention when he said that, so Daniel then asked me to apologise to Jasmine for him. I went over to Jasmine and said words to the effect:

“ Daniel is sorry for taking the joke too far ”.

I cannot remember what Jasmine said back to me, but she was OK. Later in the shift Jasmine said to me words to the effect:

“ That was a bit scary ”

44 He also described Ms Sharma as looking fine and not saying anything about the incident being sexual. He observed that Ms Sharma and Mr Matic used to “talk rubbish, dirty talk, at work all the time” and that he thought this was mucking around. He also stated that Mr Matic “talked that dirty talk with everyone in the store the same, he was just really funny”.

45 In his statement of 1 February 2008 he said that Ms Sharma and Mr Jones had asked him to prepare a statement (the July 2007 statement). He had told them he did not remember what had happened and that Ms Sharma had reminded him. He had sat with Ms Sharma to type up his statement that had been sent to the Anti-Discrimination Board.

Mr Kenny’s oral evidence to the Tribunal

46 Mr Kenny gave oral evidence to the Tribunal. He said that his February 2008 statement was true and he had signed the July 2007 statement because he thought his part in all of this would be over and he would be out of it.

47 He acknowledged that Mr Matic made “dirty talk” with everyone in the store and he considered it funny. In essence his evidence was that Mr Matic made a lot of filthy comments to Ms Sharma. Mr Matic also walked around at work watching pornography on his phone.

48 When put to him in cross examination that after the leg pulling incident he had gone over to Mr Matic and said “leave her alone” he said he was not sure and then said “I think I said she’s scared.” He thought that it was minutes after the leg pulling incident that Jasmine had told him it was a bit scary. Having denied hearing Mr Matic make cat noises in his statement of 1 February 2008 under cross examination Mr Kenny acknowledged that Mr Matic did purr like a cat. He agreed that Mr Matic has said that he and Ms Sharma would go to Bondi and go swimming without any clothes on and agreed that he found Mr Matic’s comment hilarious stating “Yep, cos it was not towards me”.

Other evidence regarding the leg pulling incident

49 Mr Chandra, an area manager, employed by the respondent provided a statement dated 31 January 2008. Attached to his statement were several incident reports from Ms Sharma, Mr Matic, Ms Melhem and Mr Kenny. Mr Matic’s incident report referred to an incident of 9 May 2007 and described Ms Sharma sitting in front of the safe, he said that team members should not have been congregating around the safe and that he had growled at her and she got up.

50 Ms Melhem’s statement also put the incident date as 9 May 2007. Ms Melhem referred to Daniel (Mr Matic) and Jasmine (Ms Sharma) joking around about going on a date to the beach, having fun and laughing. She noted that around 5 pm “she was waiting for her shift to start so she was nearling (sic) down in the office and Daniel (Mr Matic) was standing. I was watching them because I was putting chips down.” She stated that she did not see Mr Matic touch Jasmine in any sexual way at all. Ms Melhem did not give evidence before the Tribunal.

Respondent’s application to place further evidence before the Tribunal

51 After the conclusion of the case the respondent made an application on 18 June 2008 to place further evidence before the Tribunal. That evidence consisted of four witness statements from KFC employees regarding an incident alleged to have occurred at the KFC Punchbowl store on 19 May 2008.

52 It was alleged that Ms Sharma was a customer in the drive through area, along with her husband, Mr Jones. Ms Sharma was alleged to have asked a customer service officer, Ms Borgache, whether that officer gave Ms Sharma’s husband “ freebies” and had alleged that the customer service officer was “checking out” her husband. The employee denied doing so. The applicant was alleged to have sworn at the customer service officer who swore back, Ms Sharma was then alleged to have got out of the car.

53 The Customer Services officer stated that she “wanted to hit me, she told me I know where you work, you better watch your back”. Ms Sharma was alleged to have screamed and yelled. In a statement the Store Manager at the time alleged that he was told that a customer was fighting. He said that the customer (the applicant) was distressed, he tried to calm her down, she explained that the staff member had made inappropriate comments and gestures towards her husband. He alleged that the applicant had threatened that if he did not take disciplinary action against the staff member then the applicant would contact the human resources manager and would attempt to have him fired.

54 The respondent submitted that the applicant had placed her own character in issue contending that her legal representative had made repeated references to the applicant being a 16 year old girl in her first job and that the applicant had painted a picture of a meek, mild and vulnerable individual preyed upon by Mr Matic. The respondent referred to Mr Kenny’s evidence that the applicant was a willing participant in the episodes between Mr Matic and was a person who got “as good as she got.”

55 The respondent claimed that the evidence of their witnesses regarding the incident was probative on the issue of the applicant’s character as contrary to the case presented by the applicant. The respondent further submitted that the applicant’s actions constituted harassment and sexual discrimination against a female employee and that conduct was inconsistent with the image of herself that the applicant portrayed to the Tribunal but is consistent with the evidence given by Mr Kenny about the Applicant and her behaviour.

56 The applicant opposed the application and submitted that the alleged incident related to an incident that occurred over one year after the applicant ceased working for the respondent at that KFC store. By that stage the applicant was a married woman with a child. At its highest the statements related to a discussion between the customer and Ms Borgache about what Ms Sharma considered was a relationship between Ms Borgache and her husband. They submitted that the statements did not go to any of the relevant issues in the case, particularly as to whether the applicant was submitted to unlawful conduct between 2 February 2007 and 10 May 2007.

57 The Tribunal has power to determine its own procedure, subject to the rules of procedural fairness: Administrative DecisionsTribunal Act, s 73. In this instance the statements describe an incident that occurred over a year after the incidents that gave rise to Ms Sharma’s claims before this Tribunal. Even if the statements are taken at their highest in our view they do nothing more than prove that the applicant had a fiery exchange with a staff member at the store over a year later. In our view the evidence does not assist the Tribunal to determine the issues before it. The respondent’s application is dismissed.

Findings

Bondi comment and leg pulling incident (Allegations 5 and 10).

58 Having examined the evidence and had the opportunity to see and hear Ms Sharma and Mr Kenny give evidence regarding the comment about swimming at Bondi and the leg pulling incident we accept Ms Sharma’s evidence about those events. While she made a number of concessions under cross examination regarding other aspects of her evidence, and we consider that some of her evidence was exaggerated, we are comfortably satisfied that these two incidents occurred as she described them. There are conflicting versions as to when they occurred. We are satisfied that they occurred on either 9 or 10 May.

59 Under cross examination the respondent’s witness, Mr Kenny, acknowledged that the comment was made about swimming at Bondi although he maintained that Ms Sharma did not say it was disgusting and she giggled.

60 In regard to the leg pulling incident under cross examination Mr Kenny’s version of events was close to Ms Sharma’s. He agreed that she had been dragged by the leg, he also agreed that Mr Matic had purred like a cat and that he had told Mr Matic that Ms Sharma was scared.

Sexual Harassment.

61 Mr Matic is a man almost twice the applicant’s age and as the Assistant Manager was her supervisor. Based on Mr Kenny’s evidence, the respondent’s own witness, it is evident that Mr Matic frequently “talked dirty”, walked around at work watching pornography on his phone, showed staff pornography on his phone at work. He engaged in conduct of a sexual nature while at work.

62 Mr Matic’s comment to Ms Sharma about swimming in the nude was of a sexual nature. In regard to the leg pulling incident there is clear evidence that Mr Matic had made a number of comments of a sexual nature to Ms Sharma previously. These are discussed below. Either on the same day or the previous day of the leg pulling incident he had made comments about taking her to Bondi to swim nude. He not only dragged her along the floor by her ankle, but also touched her leg and purred like a cat.

63 We accept Ms Sharma’s evidence that the conduct of Mr Matic in these two incidents was unwelcome. In our view given the context, the leg pulling incident was conduct of a sexual nature. The comment about swimming in the nude and the leg pulling incident both constituted conduct in relation to Ms Sharma.

64 We are comfortably satisfied that an ordinary reasonable person, having regard to all the circumstances, would have anticipated that the Ms Sharma would be offended, humiliated or intimidated by that conduct.

65 We are comfortably satisfied that Ms Sharma was sexually harassed contrary to s 22B(2) of the AD Act.

Other comments.

66 In regard to Ms Sharma’s other allegations of comments made by Mr Matic to her we are satisfied that those comments were made. The respondent’s witness, Mr Kenny, backs up some of these allegations and it is clear that Mr Matic made a number of remarks of a sexual nature to Ms Sharma and others at the workplace.

Do they constitute sexual harassment?

67 The onus is on Ms Sharma to prove that these comments were unwelcome. There is conflicting evidence about the way that Ms Sharma reacted to comments made by Mr Matic. Ms Sharma maintains that the comments were unwelcome and denies that she laughed or joked with Mr Matic when he made these comments to her.

68 Mr Kenny’s evidence was to the effect that Ms Sharma and Mr Matic often “talked dirty” and that Ms Sharma did not seem upset by the incidents he witnessed. He described her laughing on some occasions.

69 For example, in regard to the allegation that Mr Matic had said words to the effect of “I wouldn’t mind if the buttons on your top went all the way down.” Mr Kenny’s said that Mr Matic would make comments like that at work and he described him doing so with a big smirk on his face. He stated that Ms Sharma “did not appear to be upset about these things and never discouraged Daniel or complained to me about his comments.”

70 In regard to Mr Matic saying “I wouldn’t mind rooting your sister” Mr Kenny recalled that being said. He stated that Ms Sharma had laughed and said “Why would you want my sister for? That is disgusting. Why are you telling me? He said Ms Sharma appeared to find the comment funny.

71 Ms Sharma has exaggerated some of her evidence and in parts we found it self serving. We agree with the respondent’s submission that the applicant’s evidence should be approached with caution. For example, in the complaint Ms Sharma made to the Anti-Discrimination Board (received by the Board on 22 May 2007) she stated she had told Mr Singh, the general manager of the store, numerous times of the incidents and that she wanted to see him and the owner of the store. She claimed Mr Singh had said they were minor matters and that she should forget them. In cross examination she conceded that the first time she complained to Mr Singh about Mr Matic’s conduct was on 10 May 2007 by phone. Her evidence was that Mr Singh told her to put it in writing and that the next day she did so. On that basis we are not satisfied that Ms Sharma made any complaint about Mr Matic’s conduct until 10 May 2007. When appearing before the Tribunal Ms Sharma continued to assert that when she did tell Mr Singh he had laughed. We do not accept that evidence.

72 Ms Sharma saw a mental health worker during the period February to May 2007 when she said that Mr Matic was sexually harassing her. There was some inconsistency in Ms Sharma’s evidence when cross examined. At one stage she maintained that she had told her mental health worker about Mr Matic’s conduct once or twice however later she conceded that she had not told the worker about Mr Matic’s conduct until July 2007 when Ms Sharma asked her for a letter on the suggestion of her lawyer. That letter, attached to Ms Sharma’s statement merely stated that she had been treated at the Mental Health Service from March to May 2007.

73 The respondent pointed to her lack of complaint to her mental health worker despite having treatment during the period she alleged she was subjected to sex discrimination and sexual harassment. For example, on the day that Ms Sharma asserted that the leg pulling incident occurred progress notes from her community health service indicated that her mental health worker had a conversation with her on that day where she reported that she felt fine without medication and was not available to see the worker due to work commitments. There is no mention of anything to do with Mr Matic’s conduct. It is not clear what time of day that conversation occurred.

74 Lack of contemporaneous complaint by a young female employee does not of itself mean that the incidents did not occur and were not unwelcome. There may be many reasons such as embarrassment or a fear of retribution that may prevent a young woman from complaining against a manager close to twice her age. In addition, there is evidence that the applicant had other issues of concern that she was seeking treatment for. However in this instance the combination of circumstances does make the Tribunal cautious about accepting all of the applicant’s evidence.

75 The complainant bears the onus of proving her case. Although we have no doubt that Mr Matic made the comments to her that she alleges, we are not persuaded that initially his comments were unwelcome to her. Given the way that she has exaggerated other aspects of her case we cannot be satisfied that she has not minimised her own involvement in these exchanges early on with Mr Matic. Consequently we are not satisfied that she found them unwelcome at the start.

76 However, we are satisfied that by on or about 9 May 2007 Mr Matic had made multiple comments of a sexual nature to her. By that time we are comfortably satisfied that those comments had become unwelcome and we accept her evidence about the Bondi comment (Allegation 5) and the leg pulling incident (Allegation 10). We are comfortably satisfied that both of these incidents were unwelcome conduct of sexual nature.

77 Showing of pornographic material. The applicant alleged that in or about April or early May 2007 Mr Matic showed the applicant pornographic material on his mobile phone and said how he loved filthy pornos. In her complaint received by the Anti-Discrimination Board on 22 May 2007 she stated that Mr Matic “has also stated he has porn on his mobile and loves filthy porno’s (sic)”.

78 Before the Tribunal Ms Sharma was cross examined about an incident that she said occurred at the drive through area of the KFC store she and Mr Matic worked at. She said that Mr Matic, who was outside the car at the time, passed his mobile phone to her boyfriend, Mr Jones, when she and Mr Jones were in a car at the KFC drive through. She was not working that day and was in the front passenger seat of the car at the time. She saw that the phone had pornography on it when Mr Jones held the phone. Her evidence was that she said “That is disgusting” and Mr Jones gave Mr Matic back his phone.

79 The respondent’s own witness Mr Kenny’s evidence was that Mr Matic walked around at work watching pornography on his phone. He had seen it, the cooks had been shown it but he said Mr Matic did not show it to the girls at work. We accept this evidence of Mr Kenny’s. It clearly indicates that Mr Matic had pornography on his phone at work.

80 We accept Ms Sharma’s evidence that Mr Matic showed her boyfriend pornographic material on his phone when he was at the drive through area of the store in the car. She was present in the car. On the evidence before us we consider that her boyfriend was a willing participant in this exchange. On her evidence Mr Jones took the phone to have a look at it and held it in the car. Showing a person a pornographic material on a mobile phone is conduct of a sexual nature. We accept her evidence that she said it was disgusting and on that basis find that it was unwelcome conduct.

81 The issue is whether it was conduct of a sexual nature in relation to Ms Sharma. Her evidence was that her boyfriend held the phone out in front of him and she saw the image. The respondent contended that it was her boyfriend who exposed her to the image by holding the phone in the car. We agree with that submission. Mr Jones was a willing participant in the exchange. In this instance we are not satisfied that this particular incident amounted to conduct in relation to Ms Sharma. Consequently we are not satisfied that the incident amounts to sexual harassment contrary to s 22B(2) of the AD Act.

82 We accept her evidence that on or about early May 2007 Mr Matic gave pornographic material to the applicant’s boyfriend in the car park of the KFC Punchbowl store. She stated that her husband opened the back door and Mr Matic put a box in the back seat. She described magazines with “girls spreading and stuff” but agreed she did not see them until Mr Matic had left and she had seen them on the back seat. While the material was being loaded into the car she walked away.

83 That is broadly consistent with the evidence of Ms Sinden regarding what Mr Matic said when the allegations were put to him although Mr Matic maintained he was not on duty at the time. Ms Sharma claimed that he was on duty at the drive through when he offered the material to her boyfriend while she was a passenger in the car.

84 Mr Jones, the applicant’s then boyfriend (now husband) provided a statement and gave oral evidence. We found the evidence of Mr Jones unreliable and consider his evidence was self serving. For example, when under cross examination he told the Tribunal about the incident where Mr Matic had shown him a pornographic image on his mobile phone at the KFC drive through. Mr Jones claimed he had found it offensive and that religious people like him were offended by it. Later he told the Tribunal that when Mr Matic offered to show him pornography he had parked his car next to Mr Matic’s at KFC, had looked in Mr Matic’s car and seen 3 or 4 boxes of magazines and DVD’s that contained pornography. He told the Tribunal he took them home as he thought his mates would like them. He denied that they were for his own use. Consequently we place no weight on his evidence unless it is backed up by evidence from others.

85 Ms Sharma then described another occasion when she and her husband came to the drive through again and she was a passenger in the car. She said that Mr Matic had told Mr Jones he had pornography in the car and that Mr Jones had parked near Mr Matic’s car. Ms Sharma agreed that Mr Jones had put the pornography in the car and that he was a willing participant. She said that when she saw them loading the pornography into the car she had walked off. We accept her evidence regarding Mr Matic offering Mr Jones pornography and Mr Jones taking these magazines. Mr Matic, while on duty at the time, offered Mr Jones the pornographic material in the KFC drive through area when Ms Sharma was a passenger in the car in her presence. Ms Sharma was not on duty at the time however she was an employee who reported to Mr Matic.

86 It is unlawful for an employee to sexually harass a fellow employee. The incident occurred at the workplace of both Mr Matic and Ms Sharma. We consider that offering her boyfriend pornography in her presence and providing boxes of pornographic material is conduct of a sexual nature. We are satisfied that this was unwelcome conduct as far as Ms Sharma was concerned. The issue is whether this was conduct in relation to Ms Sharma given that her boyfriend was a willing participant in the exchange.

87 We accept that Ms Sharma’s boyfriend, Mr Jones was given some pornographic material by Mr Matic. There is nothing to suggest that Mr Jones was an unwilling participant in the exchange. On his own evidence he went and parked next to Mr Matic’s car and looked at the material. He was there when the material was loaded into his car. On Ms Sharma’s evidence she got out of the car and sat some distance away. She removed herself from the exchange. We accept that evidence. In the particular circumstances we do do not consider that this supplying of pornography to Mr Jones in was conduct of a sexual nature in relation to Ms Sharma. Consequently this particular allegation does not constitute sexual harassment.

88 Touching. The applicant alleged that on at least two occasions Mr Matic rubbed his body against her as he walked past in the workplace. Mr Kenny’s evidence was that everyone had to squeeze past one another as there was no room to move. He agreed in cross examination that Mr Matic had rubbed his body against Ms Sharma while packing. The difficulty with Ms Sharma’s allegations is that they lack specificity. To be conduct of a sexual nature it is not sufficient that any kind of touch occurred. It is not clear what parts of Mr Matic’s body rubbed against the applicant. In those circumstances we cannot be satisfied that this constituted conduct of a sexual nature.

89 The applicant submitted that in some circumstances a finding of sexual harassment has been found to be a form of sex discrimination and that this has occurred in situations where the work environment produced by the harassment is sufficiently pervasive to adversely affect the terms and conditions of employment. In Hunt v Rail Corporation of New South Wales [2007] NSWADT 152 the Tribunal stated [at 140]

In some instances, sexual harassment can be determined to also constitute sex discrimination. O’Callaghan v Loder & Anor (No. 2) [1983] 3 NSWLR 89 . This finding can be made in situations where the work environment created by the harassment can be sufficiently pervasive so as to adversely affect the terms and conditions of employment. Hill v Water Resources Commission (1985) EOC ¶92-127. It is still necessary to prove the elements of sex discrimination but the existence of sexual harassment may assist in this.

90 Ms Sharma submitted that she had been subject to a hostile work environment. On the evidence of the respondent’s own witness Mr Kenny, Mr Matic made what he termed “filthy comments” all the time in the workplace. In addition, he walked around the watching pornography on his mobile phone and showed it to cooks. We have also found that the supplied pornography to a customer, Mr Jones. These incidents occurred when Mr Matic was on duty as an assistant manager. We accept that evidence. This was all conduct of a sexual nature and the workplace was permeated by it.

91 We have found that the comments regarding swimming nude at Bondi and the leg pulling incident constituted sexual harassment.

92 In regard to the Bondi incident and the leg pulling incident we are comfortably satisfied that the incidents occurred as described by Ms Sharma either on 9 or 10 May 2007. We accept Ms Sharma’s evidence on this. In many respects it accords with Mr Kenny’s evidence.

93 Mr Matic was her supervisor and almost twice her age. Making the comment regarding swimming nude with her at Bondi and dragging her across the floor by the leg, then returning and touching her on the leg and purring at her constitutes less favourable treatment. We are satisfied that he treated her less favourably than he treated male employees in the same circumstances. There is nothing to suggest that he dragged any male member of staff along the floor, touched them on the leg and purred at them. We are satisfied that one of the reasons for his treatment of Ms Sharma was her gender and that she was treated less favourably than a male staff member in the same circumstances or circumstances that are not materially different. That constitutes direct sex discrimination within the meaning of s 24(1)(a) of the AD Act.

94 We accept Ms Sharma’s evidence that she was scared by the “leg pulling” incident. Mr Kenny’s evidence backs that up. We are satisfied that Mr Matic’s treatment of Ms Sharma on or about 10 May 2007 constituted subjecting Ms Sharma to a detriment under s 25(2)(c) of the AD Act. We also consider that by that time the sexual nature of Mr Matic’s conduct had become pervasive and that a hostile work environment existed for Ms Sharma. That adversely affected the terms and conditions of her employment contrary to s 25 (2)(a) of the AD Act.

95 In regard to Mr Matic offering and supplying her boyfriend with pornography in her presence outside of her working hours the issue is not as clear in terms of sex discrimination. The incident occurred at her workplace, Mr Matic was on duty and she was not. Her boyfriend was a willing participant in the exchange with Mr Matic. As stated previously we are not satisfied that this was conduct in relation to Ms Sharma and in the particular circumstances do not consider that it was treatment of Ms Sharma. Consequently we are not satisfied that offering and supplying her boyfriend with pornography in the particular circumstances of this case constituted sex discrimination.

96 In regard to Mr Matic exposing Ms Sharma to a pornographic image on his mobile phone at the drive through area we are not satisfied that this particular incident amounts to treatment of Ms Sharma. As indicated above it was an interchange between Mr Matic and Mr Jones. Mr Matic offered Mr Jones the phone and he took it. Mr Jones is not an employee of the respondent, was a willing participant in the exchange and it was he who exposed Ms Sharma to the image. Consequently we are not satisfied that Ms Sharma has proved that this particular incident amounts to unlawful sex discrimination contrary to 25(2) of the AD Act.

97 In regard to her allegation that her complaints were not investigated properly by the respondent we discuss the action the respondent took below. On the evidence, and taking into account that Ms Sharma bears the onus of proof, we do not consider that there is sufficient evidence to find she was treated less favourably on the ground of her sex in the way that the investigation was conducted.

Is QSR vicariously liable for the unlawful conduct of Mr Matic?

98 Section 53 of the AD Act is set out earlier in this decision. The onus is on the respondent to prove that they did not authorise the actions of their employee either expressly or by implication. Similarly the onus is on the respondent to prove that they took all reasonable steps to prevent their employee from contravening the AD Act [s. 104 AD Act].

Conduct of Respondent

99 In essence Ms Sharma’s case is that her complaint was not taken seriously, that she had told Mr Singh, the Restaurant Manager, that she could not attend a meeting organised by the respondent for 21 May 2007 and that she did not hear anything further from the respondent. The applicant submitted that the respondent could not satisfy the Tribunal that they had not authorised Mr Matic to say and do what he did expressly or by implication. In addition the respondent was not able to make out the defence is s 53(3) of the AD Act.

100 We do not accept Ms Sharma’s evidence that Mr Singh did not treat her complaint seriously. He promptly got her to make a written complaint and he referred the complaint to Mr Chandra who in turn involved Ms Sinden. While we accept Ms Sinden and Mr Chandra’s evidence regarding the appointment made for 21 May 2009 there is little evidence to suggest that they followed up the complaint with Ms Sharma other than making a couple of calls to her mobile phone.

101 The employer contended that they had not authorised the actions of Mr Matic and that they had taken all reasonable steps to prevent their employees from contravening the Anti-Discrimination Act.

102 The employer provided documentary evidence of the training programs that they ran. Mr Chandra, the Area Manager, and Ms Sinden, the Human Resources Manager, both provided statements and gave evidence about the training that was offered and the approach taken by the respondent. Ms Sinden provided written and oral evidence and was cross examined. Her evidence was that employees were trained prior to their first shift and that the component on harassment was between 15 to 20 minutes and up to half an hour. Apart from the induction no other specific training was required of young people regarding harassment although they could do other training if they wished. In addition she outlined a number of steps taken by the employer including a newsletter emailed to all stores and placed on a noticeboard and a hotline that employees could call if they had concerns. That hotline number was included on payslips.

103 Ms Sinden’s evidence was that Mr Matic had completed a number of training courses that dealt with sexual harassment, discrimination and maintaining a harassment free environment among other matters, in addition to the component in the normal orientation package. She stated that Mr Matic has no prior complaints against him and had been a QSR employee for 7 years. Staff supervisors such as Mr Matic did a basic training module on managing discrimination and harassment.

104 Ms Sinden had asked Mr Chandra to take statements, she met him on 17 May and they planned to investigate the complaint. She maintained that Ms Sharma was offered a meeting on 21 May and said that they had made an appointment for 24 May with Mr Matic.

105 Both Mr Chandra and Ms Sinden gave evidence that they had met with Mr Matic on 24 May and on 4 June 2007. He had acknowledged supplying the pornographic magazines to Ms Sharma’s boyfriend, but maintained that was at the boyfriend’s request. He denied any specific instance of sexual touching of Ms Sharma and said that they had a joking relationship.

106 The Team Member Orientation Benefits Handbook deals with the issue of harassment including sexual harassment. That Booklet sets out a clear procedure if subjected to harassment and makes it clear that if subjected to such conduct the employee should speak to a manager. If uncomfortable talking to her manager then it is recommended that the Human Resources Manager is contacted. The Handbook also sets out how to contact human resources and provides a help line that is the human resource manager’s direct line.

107 The applicant disputed being taken through the Handbook prior to commencing her first shift however she agreed that she was given a copy of the Handbook when she got back from training. She maintained that she had not read it.

108 We accept Ms Sinden’s evidence regarding the training offered to employees. On the evidence before us we accept that Ms Sharma was given the booklet soon after starting work with the respondent and that she had attended the orientation. It is evident that the component of orientation that dealt with sexual harassment was relatively brief given the other matters that were covered in the orientation. While we accept that Ms Sharma was given the handbook we also accept her evidence that she did not read it.

109 We accept that the respondent provided training to Mr Matic regarding harassment and discrimination. However on the evidence of the respondent’s own witness, Mr Kenny, Mr Matic, an assistant manager, was walking around the workplace watching pornography on his phone and showing it to people at work including Mr Kenny, “talking dirty” to staff and engaging in other conduct of a sexual nature. On the evidence before us Mr Matic’s conduct was not rare but appeared common place. It was done openly. In addition, on the respondent’s own evidence, Mr Matic conceded that he had supplied pornography to Mr Jones at his workplace.

110 Under cross examination the respondent’s own witness, Mr Kenny, agreed that he thought that sexual harassment was “touching and serious stuff”. It was evident that he did not understand that making comments of a sexual nature could amount to sexual harassment.

111 While the respondent provided some training and had a policy there is little evidence that this policy was enforced and consequently it was ineffective in preventing Mr Matic’s conduct.

112 While a grievance procedure is important it is not sufficient for an employer to rely on young employees to make complaints about those who manage them. We note the evidence of Mr Chandra that 60% of QSR employees are 15-18 years old. Consequently there are many young people in their workforce. Given the age group many, like Ms Sharma, are likely to be in their first jobs.

113 In our view there were insufficient mechanisms to monitor the Assistant Manager’s conduct. The training and monitoring at the management level were insufficient to pick up Mr Matic’s conduct and to ensure that management could be proactive about addressing the conduct as soon as it was manifested.

114 We do not consider that the employer expressly authorised the unlawful conduct. However Mr Matic was able to go about the workplace openly “talking dirty”, showing employees pornography and engaging in unlawful sexual harassment seemingly unchecked. After carefully considering the evidence we are satisfied that the respondent’s failure to identify and address the conduct of Mr Matic constitutes authorising that conduct by implication.

115 We are not satisfied that the respondent took all reasonable steps to prevent Mr Matic from contravening the AD Act. We find the respondent vicariously liable for the unlawful conduct of Mr Matic.

Damages

116 When a complaint is substantiated in whole or in part the Tribunal can make orders including an order the respondent pay damages by way of compensation for any loss or damage suffered by reason of the respondent’s conduct. [Section 108 (2)(a) AD Act]. Awards can be made for economic and non-economic loss. For example, damages can be awarded for injury to feelings, humiliation and distress [Hunt v Rail Corporation of New South Wales [2007] NSWADT 152] at 212. As stated in Hunt v Rail Corporation of New South Wales the Tribunal determines an appropriate amount based on evidence before it and there must be a causal link between the damage and unlawful behaviour [at 217].

117 Section 108 was recently amended to increase the limit for damages [Administrative Decisions Tribunal Amendment Act 2008]. However as the conduct in this matter occurred before the commencement of that amendment the previous ceiling of $40,000 applies [see Clause 22 Schedule 1 AD Act].

118 In this instance the Tribunal has limited evidence regarding the impact of the discrimination on Ms Sharma. A letter from Ms Smith, a Social Worker was in evidence before the Tribunal. She has known Mrs Jones (Ms Sharma) since 18 December 2007 and stated that Ms Jones has discussed her anxiety about the alleged incident of sexual harassment and the negative impact it has had on her. In her opinion the stress this has caused has the potential to impact on her mental, emotional and physical well being during her adjustment to parenthood. She stated that

Mrs Jones is currently engaged in Early Childhood Social Work and regularly discusses issues regarding the alleged incident of sexual harassment against her, the legal process that has ensued, and therapy to counter the stress that this is causing.

119 Given that Ms Sharma did not discuss her Mr Matic’s treatment of her with those treating her for depression in the period March to May 2007 and did not raise the allegation until July 2007 we have no evidence before us from those who treated her depression at the time regarding the impact of the unlawful conduct on her at the time.

120 On the evidence before us we are satisfied that the applicant was intimidated and humiliated by the conduct of Mr Matic. We accept her evidence that she was scared during the leg pulling incident. The Tribunal considers that an amount of $15,000 is adequate to compensate her for the injury to her feelings and distress she suffered as a result of the unlawful conduct.

121 We do not consider this an appropriate case for aggravated damages. As stated in Hunt aggravated damages apply where behaviour that amounts to discrimination is high handed, malicious, insulting or oppressive.” [at 220].

122 While Ms Sharma claims that she did not return to work after 11 May 2007 due to the stress of the sexual harassment and sex discrimination it is evident that Ms Sharma had enrolled in a four week aged care course that commenced the next week and that she undertook that course. It is also evident that she had significant family problems at the time of the alleged harassment. We have no evidence before us of the exact amount of lost wages. In these circumstances we have insufficient evidence to award damages for economic loss.

Orders

The Tribunal makes the following orders

1. That the complaints of sexual harassment is substantiated in relation to the Bondi incident (Allegation 5) and the leg pulling incident (Allegation 10) alleged to have occurred on or about 9 and 10 May 2007.
2. That the complaints of sexual harassment are not substantiated in relation to the complainant’s other allegations.
3. That the complaint of sex discrimination is substantiated in relation to the Bondi incident (Allegation 5) and the leg pulling incident (Allegation 10).
4. That the complaint of sex discrimination is not substantiated in relation to the complainant’s other allegations.
5. That the respondent pay the applicant $15,000 in damages within 28 days.