Sharma v QSR Pty Ltd t/as KFC Punchbowl (EOD)

[2010] NSWADTAP 22

Appeal Panel - Internal

CITATION:	Sharma v QSR Pty Ltd t/as KFC Punchbowl (EOD) [2010] NSWADTAP 22
PARTIES:	APPELLANT QSR Pty Ltd t/as KFC Punchbowl RESPONDENT Jasmine Sharma
FILE NUMBER:	099044
HEARING DATES:	11 November 2010
SUBMISSIONS CLOSED:	11 November 2009
DATE OF DECISION:	8 April 2010
BEFORE:	Hennessy N - Magistrate (Deputy President); Grotte E - Judicial Member; Schneeweiss J - Non-Judicial Member
CATCHWORDS:	Equal Opportunity- appeal on question of law and on merits - sexual harassment, sex discrimination, vicarious liability- damages.
DECISION UNDER APPEAL:	Sharma v QSR Pty Ltd t/as KFC Punchbowl [2009] NSWADT 166
FILE NUMBER UNDER APPEAL:	071102
DATE OF DECISION UNDER APPEAL:	06/30/2009
LEGISLATION CITED:	Anti-Discrimination Act 1977 Administrative Decisions Tribunal Act 1997
CASES CITED:	Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Bruce v Cole (1998) 45 NSWLR 163 Ormwave Pty Ltd v Smith [2007] NSWCA 210 Beale v GIO (1997) 48 NSWLR 430 Members of the Board of the Wesley Mission Council v OV and OW (No 2) [2009] NSWADTAP 57 Hunt v Rail Corporation of New South Wales [2007] NSWADT 152 O’Callaghan v Loder [1983] 3 NSWLR 89 Toll Pty Limited trading as Toll Express v Abdulrahman [2007] NSWADTAP 70 Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; (1968) 119 CLR 118 Tupou v Scruffy Murphy's Pty Ltd & ors [2007] NSWADT 192 Alexander v Home Office [1988] 1 WLR 968
REPRESENTATION:	APPELLANT J Murphy, counsel RESPONDENT P Elias, solicitor
ORDERS:	1. Leave is refused for the appeal by QSR Pty Ltd to extend to the merits of the Tribunal’s decision 2. The appeal on questions of law by QSR Pty Ltd is dismissed.

REASONS FOR DECISION

Introduction

1 Ms Sharma began working at Kentucky Fried Chicken (KFC) Punchbowl in August 2005 when she was 15 years old. She continued to work there until May 2007. Mr Singh was the manager of the restaurant and Mr Matic was the assistant manager. During the period from February to May 2007 Ms Sharma alleged that she was subjected to sex discrimination and sexual harassment at work in breach of the Anti-Discrimination Act 1977 (AD Act). After complaining to Mr Singh in May 2007 she did not return to work. The following day she lodged a complaint with the President of the Anti-Discrimination Board. Her complaint of sexual harassment against Mr Matic has been resolved. Her complaint of sex discrimination and sexual harassment against her employer, QSR Pty Ltd t/as KFC Punchbowl (QSR) was referred to the Tribunal. Following a hearing, the Tribunal found QSR vicariously liable for two of the ten allegations against Mr Matic and awarded Ms Sharma damages of $15,000.

Appeals

2 QSR has appealed against the Tribunal’s decision. A party has a right to appeal on a question of law. Leave is required before an appeal can extend to the merits of the Tribunal’s decision: Administrative Decisions Tribunal Act 1997 (ADT Act) s 113(2). QSR has appealed on questions of law and sought leave for the appeal to be extended to the merits.

3 Ms Sharma purported to appeal, in her Notice of Reply, against the reasoning of the Tribunal: Practice Note No. 5 (PN5/00) Cl 1.2(c). This avenue is available where a party merely seeks to challenge the Tribunal’s reasoning rather that the orders that the Tribunal has made. However, it is apparent from Ms Sharma’s submissions that she was requesting the Appeal Panel make orders that other parts of her complaint had been substantiated. Before appealing against the Tribunal’s orders, a party needs to lodge an appeal and pay the prescribed filing fee. Since Ms Sharma has not done so, we have not accepted her appeal.

4 Appeals to the Appeal Panel are governed by s 113 and s 114 of the ADT Act. In relation to appeals on questions of law, the Appeal Panel’s role is:

a) to determine whether the appeal identifies a question of law;

b) if so, to determine whether any question of law has been erroneously answered;

c) if so, to determine the correct answers to the questions of law; and

d) to make such orders disposing of the proceedings before the Tribunal as are necessary, based on the findings of fact made and inferences drawn by the Tribunal and where no other conclusion is open: B & L Linings Pty Limited and Anor v Chief Commissioner of State Revenue [2008] NSWCA 187 at [126] per Basten JA discussed in Members of the Board of the Wesley Mission Council v OV and OW (No 2) [2009] NSWADTAP 57 at [3] to [5].

5 After considering the grounds of appeal on questions of law, we must consider whether to give QSR leave for the appeal to extend to a review of the merits of the Tribunal’s decision. We must also consider whether to give Ms Sharma leave for her appeal to extend to a review of the merits of the Tribunal’s decision.

6 The bulk of the parties’ submissions recites and analyses the evidence and seeks to impugn the Tribunal’s factual findings. The parts of the parties’ submissions on which we have focused initially are those which seek to identify a question of law or provide a reason for granting leave for the appeal to be extended to the merits.

Hearing before Tribunal at first instance

7 The evidence. At the hearing at first instance oral evidence was given by;

a) Ms Sharma;

b) Mr Jones (Ms Sharma’s boyfriend, now husband);

c) Mr Kenny, a fellow employee of Ms Sharma who is Mr Jones’ cousin; and

d) Ms Sinden, Human Resources Manager at QSR Pty Ltd.

8 Mr Singh, the store manager, Mr Chandra, the area manager and Mr Matic did not give oral evidence.

9 The allegations. The Tribunal identified ten separate allegations. The first six allegations were that Mr Matic had made comments of a sexual nature to Ms Sharma. Those allegations were that:

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

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

3. In or about early February 2007 Mr Matic said to Ms Sharma, ‘I wouldn’t mind rooting your sister’; (Allegation 3)

4. In or about early May 2007 Mr Matic said to Ms Sharma’s mother, ‘If you were single, I would have you’; (Allegation 4)

5. On or about 9 May 2007 Mr Matic said to Ms Sharma that he wanted to take her to Bondi beach where she could swim nude; (Allegation 5)

6. On or about 9 May 2007 Mr Matic said to Ms Sharma, ‘You would go wild if drunk’ (Allegation 6).

10 Two further allegations relate to pornographic material:

7. In or about April or early May 2007 Mr Matic showed Ms Sharma pornographic material on his mobile phone and said, ‘I love filthy pornos; (Allegation 7)

8. In or about early May 2007 Mr Matic gave pornographic material to Mr Jones in the car park of the KFC Punchbowl store in the view of Ms Sharma; (Allegation 8).

11 The ninth and tenth allegations relate to Mr Matic touching Ms Sharma:

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

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

12 Elements of sexual harassment and sex discrimination. Section 22B(2) of the AD Act makes it unlawful for an employee to sexually harass a fellow employee. There was no dispute that Ms Sharma was a fellow employee of Mr Matic or that QSR, as the employer, is vicariously liable for sexual harassment by an employee subject to the defences in 53. Sexual harassment is defined in s 22A:

For the purposes of this Part, 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.

13 At [12], the Tribunal set out what has to be proved in order to substantiate a complaint of sexual harassment under s 22B(2) of the AD Act. In summary, Ms Sharma needed to prove that:

a) the comments and/or the conduct constitute an unwelcome sexual advance, an unwelcome request for sexual favours or unwelcome conduct of a sexual nature;

b) the conduct is ‘in relation to’ Ms Sharma;

c) Ms Sharma found those comments unwelcome;

d) a reasonable person, having regard to all the circumstances, would have anticipated that Ms Sharma would be offended, humiliated or intimidated by that conduct (the ‘objective test’).

14 In relation to sex discrimination as defined under s 25 and s 24, the Tribunal said that ‘the question for the Tribunal is whether the employer, on the ground of sex or a characteristic of sex, treated 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.

15 Neither party submitted that the Tribunal had misstated the law in relation to sexual harassment or sex discrimination.

Tribunal’s findings

16 Credibility findings. The Tribunal made findings in relation to Ms Sharma’s credit at [71] to [76]:

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.

17 Factual findings and ultimate conclusions. In relation to allegations 1–4 and 6, the Tribunal accepted that Mr Matic made those comments to Ms Sharma but held, at [64] to [75] that they were not unwelcome.

18 In relation to Allegation 5, the ‘Bondi incident’, the Tribunal accepted Ms Sharma’s evidence and found that the conduct was of a sexual nature, that it was ‘in relation to’ her, that it was unwelcome and that it satisfied the objective test set out in [12](d) above.

19 Allegations 7 and 8 relate to showing Ms Sharma pornographic images. The Tribunal found that the alleged conduct had taken place in relation to Mr Jones and others in the workplace but that it was not conduct ‘in relation to’ Ms Sharma.

20 The Tribunal found allegation 9, that Mr Matic rubbed his body against Ms Sharma as he walked past her, not to be substantiated because, without more information about which part of her body he touched, the conduct did not constitute conduct of a sexual nature.

21 Allegation 10 was the ‘leg pulling’ incident. The Tribunal accepted Ms Sharma’s evidence about this incident and found that it was unwelcome conduct of a sexual nature in relation to her. The Tribunal also found that it met the objective test.

22 In summary, allegations 5 and 10 (the Bondi incident and the leg pulling incident) were held to constitute sexual harassment. The Tribunal was also satisfied that allegations 5 and 10 constituted sex discrimination. The remaining allegations were found not to constitute either sexual harassment or sex discrimination. The Tribunal found QSR to be vicariously liable for Mr Matic’s conduct and awarded Ms Sharma $15,000 in damages for non-economic loss.

Grounds of appeal

23 Six grounds. QSR’s grounds of appeal on questions of law and of fact were summarised at the end of their written submissions. An additional ground, ground 4, was added at the hearing.

1. The Tribunal erred in finding that the ‘Bondi’ comment by Mr Matic constituted sexual harassment and sex discrimination in light of its earlier findings as to Ms Sharma's credit and the findings that the other alleged comments by Mr Matic to Ms Sharma did not constitute sexual harassment because Ms Sharma was a willing participant in those conversations.

2. The Tribunal erred in failing to identify any basis in the evidence for treating the ‘Bondi’ comment differently from the other alleged comments.

3. The Tribunal erred in finding that the ‘leg pulling’ incident constituted sexual harassment when all the evidence, including that of Ms Sharma, when considered objectively, could only lead to the conclusion that the incident involved horse play between two employees in front of a number of other employees during which, at some point, Ms Sharma felt ‘scared’.

4. The Tribunal erred in finding that allegations 5 and 10 constituted sex discrimination when the work environment created by the harassment was not sufficiently pervasive as to adversely affect the terms and conditions of employment.

5. The Tribunal erred in finding QSR vicariously liable for the actions of Mr Matic because it is apparent that this finding was based on the Tribunal's stated opinion that 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”[113], when, in the opinion of the Tribunal, none of this conduct, apart from two discrete incidents which occurred on one day, was unlawful.

6. The Tribunal erred in awarding an amount of compensation that was manifestly excessive and not supported by evidence of any probative value and which was apparently awarded in respect of conduct which was not found to be unlawful.

First and second grounds – Bondi incident

24 QSR submitted that the Tribunal’s finding that the ‘Bondi’ comment (Allegation 5) constituted sexual harassment was in error. The basis for that submission was that the Tribunal had previously made adverse findings about Ms Sharma’s credit and had accepted that other incidents were not unwelcome. We note that, contrary to QSR’s submission, the Tribunal did not find that Ms Sharma was a ‘willing participant’ in any of the incidents. Its finding was merely that Ms Sharma had not established, on the balance of probabilities, that the conduct in relation to the other incidents was unwelcome. In summary, Ms Sharma’s lawyers submitted that there is nothing in the decision which discloses any legitimate basis for treating the ‘Bondi’ comment differently from the other incidents and the Tribunal’s failure to identify any reason for doing so constitutes an error of law.

25 Most questions in relation to factual findings do not constitute questions of law. Not even a perverse finding of fact gives rise to an error of law: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139. It is only where a decision maker acts without any evidence or without probative evidence that a question of law arises: Bruce v Cole (1998) 45 NSWLR 163 per Spigelman CJ (Mason P agreeing) at 188-89. These principles were explained in Ormwave Pty Ltd v Smith [2007] NSWCA 210 at [14] per Beazley JA, with whom Santow and Ipp JJA agreed. Similarly, findings as to credibility are findings of fact, ‘par excellence’ and are entrusted to the Tribunal alone to make: SZLPN v Minister for Immigration and Citizenship [2010] FCA 202 per Flick J citing Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 at [67], 168 ALR 407 at 423; SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470 at [34]. An appeal court will not disturb a trial judge’s findings on credibility unless the trial judge’s conclusion is a ‘glaringly improbable one’: Galea v Galea (1990) 19 NSWLR 263 at 269 – 270. That was not the case in relation to the Tribunal’s findings.

26 In relation to QSR’s submission that the Tribunal did not give a reason for its finding, we have assumed that the question of law which Ms Sharma’s lawyers intended to identify was whether the Tribunal gave ‘adequate reasons’ for its decision. We adopt the following summary by the Appeal Panel in Members of the Board of the Wesley Mission Council v OV and OW (No 2) [2009] NSWADTAP 57 (1 October 2009) at [76] in relation to adequacy of reasons:

Apart from the situation where a party requests written reasons for an oral decision, the Tribunal is not obliged by the ADT Act to give ‘adequate’ reasons. Even though there is no statutory requirement governing the adequacy of reasons given under s 89(2), common law principles are relevant. There is a judicial duty to give adequate reasons: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 269-70. That duty applies to tribunals as well as courts. In Absolon v NSW TAFE [1999] NSWCA 311, the Court of Appeal considered whether appropriate reasons had been given for a decision of the Equal Opportunity Division of the Tribunal. Powell JA at [67] and [68] explained that it will be sufficient if a judge ‘apprises the parties of the broad outline and constituent facts of the reasoning’ on which he or she has acted. His Honour went on to say that the giving of inadequate reasons does not necessarily vitiate the decision. It will only be where the absence or inadequacy of the reasons discloses that the Tribunal has failed to exercise its powers according to law that the decision will be set aside.

27 In Beale v GIO (1997) 48 NSWLR 430 at 442-444 Meagher JA set out the three elements of an adequate statement of reasons. These are: referring to relevant evidence; setting out any material findings of fact and any conclusions or ultimate findings reached; and providing reasons for making the relevant findings.

28 The Tribunal referred to the relevant evidence about Ms Sharma’s state of mind at the time of the Bondi incident at [59], [63] and [72] to [76]. QSR’s lawyers did not submit that there was critical evidence which the Tribunal ignored. The Tribunal then set out its material findings of fact at [63]. The Tribunal had the benefit of hearing the witnesses give their evidence and assessing their credit. The Tribunal explained its reasons for coming to the view that it did at [61] to [63] and [71] to [76]. In particular, there was some corroboration of Ms Sharma’s state of mind at about that time from Mr Kenny in relation to the leg pulling incident. In addition, the conduct of a sexual nature by Mr Matic had persisted for some weeks by the time of the Bondi incident. While QSR’s lawyers do not find these reasons persuasive, the Tribunal has provided adequate reasons for its findings.

Third ground – leg pulling incident

29 The third ground of appeal was that the Tribunal erred by finding that the ‘leg pulling’ incident (Allegation 10) constituted conduct of a sexual nature when ‘all the evidence, including that of Ms Sharma, when considered objectively, could only lead to the conclusion that the incident involved horse play between two employees in front of a number of other employees during which, at some point, Ms Sharma felt scared’.

30 The term ‘conduct of a sexual nature’ is not defined in the AD Act. It is not wise to attempt an exhaustive definition as ‘. . human inventiveness would almost certainly find other activities or approaches, equally unwelcome and unpleasant, which might then be denied the label of harassment’: O’Callaghan v Loder [1983] 3 NSWLR 89 at 103. It is a matter for the Tribunal to determine whether the conduct is conduct of a sexual nature. There was probative evidence to support that finding. The Tribunal found that Mr Matic had dragged Ms Sharma across the floor by her ankle, touched her leg and growled (or purred) like a cat. We accept that the Tribunal made no finding about what part of Ms Sharma’s leg Mr Matic touched. Nevertheless, the facts are capable of supporting a finding that the conduct was of a sexual nature.

Fourth ground – sex discrimination

31 During the course of oral submissions, QSR said that even if allegations 5 and 10 occurred, they do not meet the ‘test’ for sex discrimination that the work environment created by the harassment must be sufficiently pervasive so as to adversely affect the terms and conditions of employment: Hunt v Rail Corporation of New South Wales [2007] NSWADT 152 at [140]. That test was first enunciated in New South Wales by Mathews DCJ in O’Callaghan v Loder [1983] 3 NSWLR 89. It was developed before Part 2A of the AD Act, which prohibits sexual harassment, was enacted. Mathews DCJ said that discrimination on the ground of sex occurs in the workplace when ‘ . . . the unwelcome conduct itself, or the hostile or demeaning atmosphere created by it, can become such a feature of the employment that it can constitute a term or condition of it.’ Her Honour went on to say:

In the normal course of events it is the persistence in the sexual conduct which renders it unlawful under this head. A single approach by an employer would be unlikely to fall within s 25(2)(a). But one cannot discount the possibility of an employer’s single act of sexual aggression so tainting the working environment as to come within this section. It would thus be wrong for the tribunal to limit the numbers of types of approaches which might attract s 25(2)(a). It will depend entirely upon the circumstances of each case. But before this section can be invoked, the conduct of the employer must create an unwelcome feature of the employment in a continuing rather than an isolated sense.

32 As this ground involves a finding on a question of fact, QSR has not identified a question of law. Even if a question of law has been identified and the Tribunal answered that question erroneously, a finding that the complaint of sex discrimination had not been substantiated would not have changed the orders the Tribunal made.

Fifth ground - vicarious liability

33 The fifth ground of appeal relates to the Tribunal’s finding that QSR is vicariously liable for the conduct of Mr Matic. The relevant provisions are s 53(1) and (3):

(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.

. . .

(3) Despite subsection (1), a principal or an employer is not liable under that subsection if the principal or employer took all reasonable steps to prevent the agent or employee from contravening the Act.

34 QSR’s case was that they had not authorised Mr Matic to engage in sexually harassing conduct and had taken all reasonable steps to prevent their employees from contravening the AD Act.

35 The Tribunal found at [100] that Mr Singh treated Ms Sharma’s complaint of discrimination and harassment seriously. The Tribunal also accepted the evidence of Ms Sinden, Human Resources Manager, in relation to the training offered to employees. Ms Sharma had been given a copy of the Team Member Orientation Benefits Handbook which deals with sexual harassment. The Tribunal’s conclusions are recorded at [109] to [115]:

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.

36 The errors of law which QSR said the Tribunal made were:

a) the Tribunal erred in finding QSR vicariously liable for the actions of Mr Matic because it is apparent that this finding was based on the Tribunal's stated opinion that 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.”[113], when, in the opinion of the Tribunal, none of this conduct, apart from two discrete incidents which occurred on one day, was unlawful;

b) the Tribunal erred by failing to indicate how QSR might practically prevent an assistant manager at one of its restaurants from breaching the policy.

37 Conduct not unlawful. QSR’s reasoning was that the Tribunal should not have taken into account any of Mr Matic’s conduct which it did not ultimately find to be unlawful because, among other things, an employer has no right to ‘police private conversations between consenting employees.’ The Tribunal found at [109] that certain conduct of Mr Matic, which was not unlawful as against Ms Sharma in the circumstances of this case, was nevertheless conduct of a sexual nature. That conduct was occurring openly and repeatedly in the workplace. The Tribunal’s ultimate findings were that QSR impliedly authorised Mr Matic’s unlawful conduct and failed to take all reasonable steps to prevent that conduct. In coming to that view, the nature and prevalence of conduct of a sexual nature in the workplace is relevant. That conduct was not conduct that had taken place in private between consenting adults. Also relevant was Mr Kenny’s understanding that only ‘touching and serious stuff’ constitutes sexual harassment.

38 Obligation to indicate what steps QSR should have taken. The second aspect of this ground of appeal was that the Tribunal erred by failing to indicate what steps it should have taken to prevent Mr Matic from contravening the AD Act. The onus is on QSR to establish that it took ‘all reasonable steps’ to prevent the contravention: AD Act, s 104. QSR led evidence about the steps it had taken. Whether or not those steps were ‘reasonable’ depends on all the circumstances of the case. The Tribunal took into account those circumstances including the nature and extent of Mr Matic’s conduct, Mr Kenny’s ignorance of what may constitute sexual harassment and the fact that many employees, including Ms Sharma, were aged between 15 and 18 years and in their first job. The Tribunal did not regard it as reasonable for QSR to have relied on its policy, the training it provided and the complaints procedure. Whether the Tribunal was satisfied that QSR had impliedly authorised Mr Matic’s conduct and taken ‘all reasonable steps’ to prevent that conduct were questions of fact for the Tribunal. The Tribunal does not need to identify the steps that QSR should have taken to monitor the conduct of its employees. That is a matter for QSR. Its role is merely to determine whether QSR has discharged its onus of proving that the steps it has taken are reasonable in all the circumstances.

Sixth ground - damages

39 The final ground of appeal relates to the amount of damages the Tribunal awarded. That amount was said not to be supported by evidence of any probative value. The Tribunal has power to award damages if the complaint is substantiated. The upper limit of damages at the time was $40,000. The Tribunal found at [118] that it had ‘ . . . limited evidence regarding the impact of the discrimination on Ms Sharma.’ That evidence comprised evidence from Ms Sharma and Mr Kenny and a letter from a social worker, Ms Smith. In determining the level of damages to be awarded, the Tribunal took into account the fact that Ms Sharma did not discuss the allegations of sexual harassment with those treating her for depression in the period from March to May 2007 and did not raise the allegation until July 2007.

40 According to QSR, the Tribunal only awards damages for non-economic loss where there is ‘compelling evidence supporting such claims’. There is no requirement for ‘compelling’ evidence. Ms Sharma must prove her loss on the balance of probabilities. The Tribunal has not erred by awarding damages in the absence of what QSR describes as ‘compelling evidence’. Contrary to its submission there is no basis for inferring that the Tribunal took into account conduct of Mr Matic that it did not find to be unlawful when assessing the quantum of damages.

41 QSR also submitted that the quantum of damages was ‘manifestly excessive’ in light of the amounts awarded in comparable cases. Details of those cases were provided. Even if it is permissible to compare the amount the Tribunal awarded with a norm or standard for the assessment of damages, we are not persuaded that an award of $15,000 constitutes an error of law because it is ‘manifestly excessive’: Toll Pty Limited trading as Toll Express v Abdulrahman [2007] NSWADTAP 70; Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; (1968) 119 CLR 118; Tupou v Scruffy Murphy's Pty Ltd & ors [2007] NSWADT 192. The amount awarded depends on the ‘experience and good sense’ of the Tribunal member: Alexander v Home Office [1988] 1 WLR 968 per May LJ at 975. The Tribunal assessed the level of Ms Sharma’s hurt and humiliation based on all the evidence. The Tribunal made no error in deciding that the sum of $15,000 would compensate Ms Sharma for the discriminatory conduct of QSR.

42 As QSR has not established any error of law, we must decide whether to give leave to extend the appeal to the merits of the Tribunal’s decision.

Extension to the merits

43 Principles for extending appeal to merits. The Appeal Panel should determine whether to extend the appeal to the merits of the Tribunal’s decision keeping in mind what is fair and just in the circumstances. QSR’s reasons for seeking leave were that: the Tribunal’s findings in relation to the Bondi incident and the leg pulling incident were ‘against the weight of the evidence’ and those findings were ‘not open’ on the evidence given the Tribunal’s findings in relation to Ms Sharma’s credit.

44 Conclusion. We have examined the evidence and the Tribunal’s findings. The Tribunal had the benefit of hearing all the evidence and assessing each witness’s credibility. In our view, the Tribunal has characterised the evidence in an even-handed and objective manner and made findings that were open to it on the basis of that evidence. It is neither fair nor just to disturb those findings.

Application for costs

45 If either party wishes to apply for costs, it should do within 21 days of the date of these reasons. Any submissions in reply should be filed and served within a further 21 days. Any costs application will be determined ‘on the papers’ after that time: ADT Act, s 76.

Orders

1. Leave is refused for the appeal by QSR Pty Ltd to extend to the merits of the Tribunal’s decision.

2. The appeal on questions of law by QSR Pty Ltd is dismissed.