v v Y

[2000] NSWADT 121

CITATION:

V -v- Y & anor [2000] NSWADT 121

DIVISION:

Equal Opportunity Division

PARTIES:

APPLICANT
V

FIRST RESPONDENT
Y

SECOND RESPONDENT
Z

FILE NUMBER:

19 of 1998

HEARING DATES:

23, 24 & 25/02/2000; 17 & 18/04/2000; 17 & 18/05/2000

SUBMISSIONS CLOSED:

06/05/2000

DATE OF DECISION:

09/01/2000

BEFORE:

Ireland G - Judicial Member; Clayton S - Member; Cox R - Member

APPLICATION:

Sexual Harassment - In workplace

MATTER FOR DECISION:

Principal matter

LEGISLATION CITED:

Anti-Discrimination Act 1977

CASES CITED:

M v. R Pty Ltd (1998)EOC1992
H L Bolton (Engineering) Co Ltd v. T J Graham & Sons Ltd (1974) 1 QB 159
Universal Telecasters (Qld) Ltd v. Guthrie (1977)18 ALR 531
Hill v. Water Resources Commission (1985) EOC
Farres v. Box Hill College of TAFE and Ors (1992)EOC
Purkess v. Crittenden (1965) 114 CLR
Watts v. Rake 108 CLR
Shellharbour Golf Club v. Wheeler (1999)NSW SC224

REPRESENTATION:

APPLICANT
A Healey, barrister
FIRST RESPONDENT
R St John QC with K Roser, barristers

SECOND RESPONDENT
No appearance

ORDERS:

(1) The Second Respondent, within seven days of receiving written advice from Mrs V’s solicitors of this direction, to send to Mrs V a letter of apology for his acts of sexual harassment towards her while she was employed at the Motel. The Second Respondent shall send that apology by certified prepaid post addressed to Mrs V care of the address of her solicitor; (2) The First Respondent and the Second Respondent to pay to Mrs V an amount of $16,987.00; (3) The liability of the First and Second Respondents to pay the amount of $16,987.00 is joint and several. The Applicant is entitled to recover the full amount awarded from either respondent. The Tribunal will assess the respective contributions to be made between the respondents after application by either respondent to the Registrar to fix a date for hearing the application.; (4) It is noted that the amount of $16,987.00 comprises the following awards: (i) $12,000.00 for general damages; (ii) $1,837.00 for loss of earnings; and (iii) $3,150.00 for medical treatment; (5) Mrs V to apply the amount awarded for medical treatment towards treatment from a psychologist or psychiatrist of her choice; (6) If the parties to this enquiry are unable to agree upon an award and assessment of the costs of this enquiry and the hearing on 24 September 1999 within a period of 21 days of the date of this decision, any one of the parties is at liberty to apply to the Registrar to fix a date for hearing an application by the Tribunal to determine the question of those costs.

History of complaints

1 Mrs V lodged a complaint with the Anti-Discrimination Board on 9 September 1996 in which she alleged she had been discriminated against on the ground of her sex at “the Motel by Mr Z, an employee of the First Respondent. Mrs V had made a statement to the Police at C about Mr Z’s conduct on 29 August 1996 and on that day an Interim Apprehended Violence Order (“AVO”) was issued by the Local Court against Mr Z. Mr Z did not appear to defend the making of the final AVO by the Court on 26 September 1996. The Anti-Discrimination Board referred Mrs V’s complaint to the First Respondent by letter dated 13 August 1997, which was responded to by the First Respondent by letter dated 19 September 1997. On 6 March 1998 the President of Anti-Discrimination Board referred the complaint to the Equal Opportunity Tribunal (under Section 94(1) of the Anti-Discrimination Act 1997 (“the Act”)) for the Tribunal to conduct an enquiry into the complaint. On 7 August 1998 the Tribunal directed that Mr Z be joined as a Second Respondent.

2 Claims of sex discrimination made by Mrs V against Mr Z and the First Respondent arise out of conduct which Mrs V alleges was perpetrated against her by Mr Z whilst they were both employees of the First Respondent at the Motel.

3 On 27 June 1998 Mrs X lodged a complaint with the Anti-Discrimination Board, in which she made allegations of sexual harassment against her by Mr Z at the Motel. The Anti-Discrimination Board treated this complaint as one against both the First Respondent and the Second Respondent. The Board referred the complaint to the Respondents by letters dated 10 September 1998. The Second Respondent replied to the Board by letter dated 19 November 1998 and the First Respondent replied by its letter dated 20 November 1998. The President of the Board pursuant to Section 94(1) of the Act referred Mrs X’s complaint to the Tribunal for an enquiry, by letter dated 4 March 1999.

4 On 24 September 1999, on the application of the Applicants, the Tribunal directed that the complaints of Mrs V and Mrs X be joined and an enquiry into both complaints commenced at the C Courthouse on 23 February 2000.

5 It is noted that in relation to the hearing on 24 September 1999, the Tribunal reserved consideration of an award of costs for that day against the Respondents.

6 At the opening of the enquiry on 23 February 2000, the Second Respondent did not appear and was not represented and nor did the Second Respondent appear or be represented on any of the subsequent hearing days. On the first day the First Respondent applied for an adjournment of the hearing on the grounds that the Second Respondent was not present and questioned the adequacy of the attempts by the Applicant and by the Registrar of the Tribunal to serve notice of the hearing on the Second Respondent. The Tribunal delivered its considered reasons later that day and directed that the hearing of the enquiry proceed on the following day with the Applicant directed to advise the Second Respondent that day by facsimile to his then known address that the matter was proceeding. The Second Respondent by facsimile message advised the Tribunal that it was not possible for him to attend the hearing at C. The hearing proceeded in the absence of the Second Respondent.

7 In view of the joinder of the two complaints and the joint hearing of the enquiry into the complaints, the Tribunal has addressed the issues requiring its determination in the following manner:

(i) the allegations of sexual discrimination by Mrs V and Mrs X are considered separately. In each case, for the reasons given later, the Tribunal finds that the Second Respondent discriminated against both Applicants on the ground of sex, in terms of Section 24(1)(a) of the Act;
(ii) Whether in each complaint the discrimination was unlawful, in the terms of Section 25 of the Act. The Tribunal finds in each complaint that the discrimination was unlawful;
(iii) The liability of the First and the Second Respondents in each complaint for the unlawful acts of discrimination. The events giving rise to both the complaints took place during periods in which the First Respondent employed the Second Respondent at the Motel.

8 In considering the evidence, the Tribunal has had regard separately to such of the material as relates solely to the specific issues arising in each complaint. Where the evidence is of a common nature, affecting the issues in both complaints, the Tribunal has taken into account such of that material as is relevant to the issues to be determined in the respective complaint.

Position of Mr Z (Second Respondent)

9 Mrs V was employed on a part-time basis as a housemaid at the Motel from May 1994 until she resigned on 25 July 1996.

10 Mrs X was employed at the Motel as a waitress in the Restaurant in March 1996 and ceased employment in September 1996. Mrs X resumed employment at the Motel in December 1996 and finally resigned in January 1997.

11 Mr Z was employed by the First Respondent at the Motel in December 1995. Despite the importance of determining the nature and terms of Mr Z’s employment, the evidence is not precise. Taking into account the evidence of Mr W and Mrs W, the directors of the First Respondent, who are in the best position to describe the terms of his employment, the Tribunal has concluded that Mr Z was not employed by them in the role of sole manager of the Motel but together with his wife he was appointed as Assistant Manager of the operations of the Motel. Mr and Mrs Z were appointed as described by Mr W, as a package. In deciding to make that appointment, Mr and Mrs W were impressed more by the experience and qualifications of Mrs Z as a person able to manage the business of the Motel and they saw Mr Z as capable of attending to the maintenance of the premises and equipment at the Motel.

12 There was no evidence that their respective roles were defined nor as to the nature of their joint responsibilities. The evidence shows that Mrs Z was competent in supervising the office and attending to the customers and she supervised the daily roster of work allocated to the staff including the house-maids.

13 Mr Z carried out a more general role. He participated at least once, jointly with Mrs Z in appointing a new house-maid. He daily supervised the work of the house-maids. Within a short time after his appointment he directed the house-maids to alter the previous practice of two house-maids working together to clean Motel rooms so that each house-maid in future worked alone in cleaning rooms. Mr Z attended to the repair of equipment in the rooms in the Motel. His presence during the daily cleaning of Motel bedrooms was such that the house-maids understood that he was the manager.

14 Mrs V described him as the manager and she stated that she was unable to complain about his conduct towards her because he was the manager and she held a deep concern that she would lose her job and be unable to find re-employment in the district if she complained to him.

15 Mr Z held himself out as the manager on occasions. He wrote out and had signed by 11 staff members of the Motel, a document which he sent to the Board commencing “this is to state my opinion of the behaviour of Z, Manager of "the Motel".”

16 The Tribunal concludes that Mr Z exerted daily control over the house-maids in the performance of their cleaning of motel bedrooms. His overall authority in the running of the Motel was limited and the Tribunal is not able on the evidence to determine the extent of his authority.

17 Despite the strong representations by the Applicants to the contrary, the Tribunal is unable to conclude that the role performed by Mr Z as a joint manager or assistant manager at the Motel brought him within any of the four categories of employee whose discriminatory conduct will cause the employer to have acted unlawfully under the Act (M v. R Pty Ltd (1998)(EOC1992-229 at 771173)). Graham J in that case noted that these four categories were not an exhaustive list. The Applicant’s submissions did not canvas a basis for categorising Mr Z’s position other than falling within the second and third categories listed by His Honour in that decision. Graham J described the list as follows:

"Thus, an employer may be in breach of the personal obligation created by sec.25(2) in a number of ways. The following is not intended as an exhaustive list of those ways:
(1) Where the relevant discriminatory act or conduct is personally performed by the employer.
(2) Where, in the case of an incorporated entity, the relevant discriminatory act or conduct is performed by a senior official whose conduct is to be identified as being that of the company or other incorporated entity because he or she represents the “mind or will” of the entity: H L Bolton (Engineering) Co Ltd v. T J Graham & Sons Ltd (1974) 1 QB 159: Universal Telecasters (Qld) Ltd v. Guthrie (1977)18 ALR 531.
(3) Where the relevant discriminatory act or conduct is that of a person or persons whose duty it is to, or who customarily or usually has the function of, affording terms and conditions of employment to the employee alleging discrimination.
(4) Where the relevant discriminatory act or conduct is that of employees not in any of the three earlier categories, but whose conduct is known to any of the persons in those categories and by active condonation or inactivity, no prompt or adequate steps are taken by or on behalf of those in any of the first three categories to rectify the adverse working conditions thus “afforded” to the employee: cp Hill v. Water Resources Commission (1985) EOC 92-127."

18 The Tribunal accordingly confines its consideration of the Applicant’s mission to Items 2 and 3. Categories 1 and 4 are not relevant to the circumstances of these complaints.

(2) Mr Z was not a director or a shareholder of the First Respondent. His role otherwise, did not, in the view of the Tribunal, constitute him as a senior officer of the First Respondent nor did it enable him to act as the mind or will of the First Respondent in any material way. There was no evidence of the scope of Mr Z’s authority. The Tribunal is left to infer from his position as Assistant Manager that he had authority from the First Respondent to impose directions on staff to enable his management role to be performed but the evidence is lacking in any instance in which he exercised a direction over staff other than the occasion when he directed the house-maids to work alone. He oversaw the house-maids in cleaning of the Motel bedrooms but no occasion was described in which he directed how they performed their role. The occasion on which he directed house-maids to work alone, is, according to the evidence, an isolated illustration of his authority. The Tribunal is unable to conclude that Mr Z’s position came within this category.

(3) Mr Z is most likely to fall within this category. However, the evidence in this enquiry, of Mr Z’s role and function it not sufficient to enable the Tribunal to conclude that he afforded the terms and conditions of employment to Mrs V or to Mrs X. The consequence of a finding of unlawful conduct by an employer in relation to sex discrimination arising out of sexual harassment by an employee, requires a degree of satisfaction by the Tribunal that the evidence clearly establishes the authority of the employee to exercise the function of affording terms and conditions of employment to the victims of the discriminatory conduct. Such degree of satisfaction does not arise on the evidence in this enquiry. The issue must be determined objectively and it is therefore not sufficient in these complaints, to accept in isolation the statements of the victims that because they understood Mr Z to be the Manager, they feared that if they complained about his conduct, he would sack them. There is no evidence that Mr Z held authority to hire and fire the housemaids nor is there evidence that he had purported to do so.

The evidence suggests that Mrs Z was the person who would exercise that authority, although, again, there is no evidence that Mr or Mrs Z had exercised such authority.

19 In each complaint, Mr and Mrs W were not told of the conduct of Mr Z towards Mrs V or towards Mrs X, until after they had left their employment. In the case of Mrs X, her employment by the First Respondent continued for approximately two months after the Ws were aware of Mrs V’s allegations and for a further period of approximately one month after she first ceased her employment in September 1996. Although Mr W made some enquiry of Mr Z after he had received notice of Mrs V’s complaint, Mr and Mrs W were not made aware by Mrs X or anyone else of Mr Z’s conduct towards her until receipt of notification from the Board of her complaint in September 1998. The notification from the Board contained a reference to previous correspondence with the First Respondent in regard to Mrs X’s complaint but no details of such correspondence was available to the Tribunal. The Tribunal accepts that Mr and Mrs W were not aware of Mrs X’s claim until after she had left her employment.

20 The Tribunal is satisfied that it is not appropriate to categorise Mr Z’s position as Assistant Manager of the Motel as falling within the classifications that would attach personal responsibility for those acts on the First Respondent such that Mr Z’s actions may be found to have breached Section 25(2) of the Act.

21 These findings do not exclude the First Respondent from liability for the actions of Mr Z. The Tribunal needs to consider the application of Section 53 of the Act to the circumstances of each complaint, to determine whether the First Respondent, under that Section, is vicariously liable for the discriminatory conduct of Mr Z. This aspect of liability was also considered by Graham J in M v. R Pty Ltd (Supra) at 77174;

“In other words, the act of the employee contemplated by sec. 53 is one which is discriminatory but, because done by a person who is not an employer, is not prima facie unlawful. It can only become an unlawful act if it is the act of an employer or, as sec. 53 provides, is deemed to be the act of an employer and, thus, becomes unlawful.

Although the employer’s personal obligation provides (as has already been held) sufficient grounds for liability in the principal in the present case, it should also be observed that (subject to what appears hereafter as to the issue of absence of authority) the agreed facts would constitute sufficient factual material to justify a finding against the employer based upon sec. 53.”

22 In a claim of sexual harassment arising under section 24 of the Act, the liability of an employer for the discriminatory conduct of an employee can arise not only in a breach of what is called the personal obligation created by section 25(2) of the Act, it can also arise vicariously under section 53 of the Act. These two avenues of liability are not mutually exclusive. The Tribunal will consider later the vicarious liability of the First Respondent in these complaints, after examining the factual circumstances of the complaints.

23 The First Respondent did not concede the responsibility of Mr Z for the allegations of sexual harassment by Mrs V or by Mrs X, and required the Tribunal to evaluate the evidence supporting those allegations.

Mrs V’s complaint

24 Mrs V alleged that from February 1996, the Second Respondent (Mr Z) embarked on a course of conduct intended by him to entice her into a sexual relationship and that she rebuffed his approaches and ultimately she was forced by his conduct to resign her employment with the First Respondent on 25 July 1996.

25 The first overt act of misconduct by Mr Z towards Mrs V occurred on 27 February 1996. Mrs V was working on her own cleaning out a room in the Motel. Mr Z walked into the room. He was about 5 feet away from her and he said:

“Can you keep a secret?”

Mrs V said:

“I don’t know, it depends.”

Mr Z then said:

“You know that you are our favourite.”

She said he said this a few times and then he said,

“You’re one of our best workers. Wouldn’t it be good if we could get together?”

Mrs V then responded:

“Please don’t, you’re scaring me.”

Mr Z then said:

“I’d never hurt you.”

Mr Z then left the room.

26 Mrs V stated that she was shaken and that she cried and that she felt terrible about what had happened but did not know how to deal with it.

27 Prior to that incident, Mrs V described that Mr Z’s behaviour towards her had changed. She said that he would stare at her and stand close to her. She said that she considered that she was not able to complain to the boss, who she thought was Mr Z and she could not bring herself to tell Mrs Z. On 29 February 1996 she told the person who operated the Job Focus Office. Mrs V was employed through the Government Grant System and she was required to report regularly to the case manager of Job Focus. She continued this regular contact until November 1996 when the Job Focus Office closed. The case manager described Mrs V as upset and crying on that occasion. Mrs V told the Case Manager about the conduct of Mr Z and told her that she was afraid to complain as she thought she would lose her job at the Motel and be unable to find re-employment. The case manager stated that she advised Mrs V that she could complain to the Anti-Discrimination Board. During the following months the case manager referred Mrs V for interviews for other jobs in which Mrs V was not successful because, in the view of the case manager, Mrs V was in a state of distress. Mrs V contacted the Case Manager on seven occasions in this period, sometimes by telephone. Eventually Mrs V found employment after her resignation at the Motel, as a shop assistant with the Deli in C in September 1996. Mrs V told the case manager that she preferred to find another job than refer Mr Z to the Board.

28 After the events in July 1996 (referred to later), Mrs V contacted the Case Manager on 30 July 1996 and told her that she had resigned as she could not cope with the anxiety arising from the harassment and that she had contacted the Board. Mrs V lodged her written complaint with the Board on 9 September 1996.

29 Mrs V stated that between March 1996 and June 1996, Mr Z would come to the room while she was cleaning and he just stared at her. He made comments about her “sexy socks”. She wore a staff uniform dress until Mr Z made those remarks and then she wore a skirt or pants despite the warm weather.

30 The next overt act occurred on Friday 28 June 1996. Mrs V stated that she was cleaning a bedroom and Mr Z came into the room through the back door.

He said:

“I like you, you know. I’ve always liked you.

Mrs V stated that she did not respond. He said:

“I need a hand with something down in Room 26.”

Mrs V said:

“What?”

He said:

“You’ll see.”

Mrs V followed Mr Z to Room 26 which was the room at the end of the row of Motel rooms. He opened the door and he walked in. He said to Mrs V:

“Take your clothes off, hop into bed and turn the electric blanket on.”

Mrs V said that she was shocked and said:

“You’re joking!”

Mr Z responded:

“No I’m not.”

And Mrs V said:

“I’ve got work to do I’m on a time limit.”

Mr Z then said:

“That’s OK, I’ll tell (Mrs Z) that you were working with me.”

Mrs V responded:

“Please don’t do this. I don’t like it. I’m not into this sort of stuff. I’ve got enough problems in my life without this.”

Mr Z replied:

“Don’t you think you deserve a bit of happiness?”

Mrs V said to Mr Z:

“Get it through your thick head, I’m not like that.”

31 Mrs V said she was crying and shaking with nerves. She was very scared and that she said many times:

“No Z”

Because she was scared and wanted to get away, she said:

“I’ll think about it”

and she then walked off.

32 The following day, Saturday 29 June 1996, Mrs V commenced working at 9:30am and Mr Z handed her a business card on which were drawn 2 boxes one of which had the word “yes” under one box and the words “no” under the other. Mrs V stated that as soon as she received this card from Mr Z she ticked the box “no” and gave the card back to him. He said to her:

“That’s no good. I don’t take no for an answer. I’ll never give up on you.”

33 Mrs V stated that she kept working and pretended that he wasn’t there and that she kept moving away from him whenever he came near her.

34 The next day Mrs V worked for 4 hours and she told the Case Manager at Job Focus about the card.

35 The next incident with Mr Z occurred on Saturday 6 July 1996. On this day when she came to work Mr Z handed her another card with 3 boxes drawn on it, each marked “yes”. She stated that Mr Z grabbed her right hand to tick a box and that he held her hand and forced her to tick a box. She said to Mr Z:

“That’s not legal as I’m left-handed.”

36 She said that she walked away shaking and he said:

“Stop shaking, stop shaking, I’ll never give up.”

Mrs V said that she was completely devastated by what had happened.

37 On 16 July 1996 whilst she was working, Mr Z handed her another business card with two empty boxes marked “yes” and “no”. Mrs V stated that Mr Z placed this card in the pocket of her uniform after she had signed off and was walking to her car. She stated that Mr Z said:

“Give me an answer.”

Mrs V said that she did not reply and jumped into her car, locked the doors and drove away.

38 The following day, 17 July 1996, when she came to work, Mr Z said to her:

“What is the answer going to be?”

Mrs V replied:

“No Z.”

Mrs V said that she was shaking with nerves and was crying. Mr Z said to her:

“Stop crying and stop shaking. I’ll wait.”

Mrs V said that by this stage she was crying uncontrollably and that Mr Z looked nervous when she walked away. About half an hour later he came into the room where Mrs V was working and he looked at her and said:

“Smile, be happy, don’t be so upset, it’s alright.”

Mrs V described that Mr Z had a stress ball in his right hand. Other witnesses described that Mr Z often held a stress ball in his hand when he moved around the Motel. On this occasion he was about 10 feet away from Mrs V and she stated that he threw the ball at her with force. Mrs V stated that the ball hit her on her right breast and that she cried out loudly. She stated that Mr Z cornered her so that she couldn’t get away and he put his left arm around her and kissed her on the top of her head and started to play with her hair. Mrs V stated that she wished to get away from him and she said:

“I’ll be alright, I’m alright.”

She tried to get out of the room but she had to push past him to do so. Mrs V stated that Mr Z then pushed past her quickly and left the room. She stated that she was very scared.

39 Mrs V also stated that at some stage Mr Z said to her:

“You’ve not had it till you’ve had it with me.”

40 Up until the incident on 17 July 1996, Mrs V had not told her husband of the harassment she was suffering. She finally told her husband on 24 July 1996. She resigned her employment on 25 July 1996.

41 Mrs V saw the Policeman in charge of the B Police Station on 29 August 1996. She made a written statement to the Policeman. On that day an Interim AVO was issued on her behalf against Mr Z. Mr Z failed to respond to the Interim AVO and a final AVO was issued against Mr Z on 26 September 1996. Mrs V described how she was adversely affected by the harassment she was suffering. She said that in June and July 1996 she often vomited before she started work. She took "Mylanta" to settle her stomach. After she resigned on 25 July 1996 she had a migraine headache for 3 days. She said that she did not see a doctor because she did not want to talk about the problem. She said that after she resigned, she was too scared to answer the phone and she was scared if any car came up her home driveway. Mrs V stated that her fear led her to take out the AVO against Mr Z.

42 Later in 1996 and in 1997, Mrs V had been diagnosed with glaucoma, severe kidney infection, high blood pressure and she had a tumour removed from her face. Mrs V considered that all of these conditions were related to the stress that she experienced at the Motel.

43 During her employment at the Motel, Mrs V became friendly with Mrs M, the assistant chef. Sometime late in June or early July Mrs V told Mrs M what was happening with Mr Z and she showed Mrs M one of the business cards that Mr Z had given to her, with the markings “yes” and “no”.

44 Mrs V stated that she also spoke on different occasions to 4 other members of the Motel staff, about her concerns of Mr Z’s treatment of her. Two of these staff members were senior persons – the head chef and the head house-maid. Three of the staff members are still employed at the Motel and the fourth person is a personal friend of Mr and Mrs W. Their versions of what Mrs V told them concerning Mr Z, varies from the details which Mrs V stated that she told them. In the view of the Tribunal, it is sufficient for the purposes of a general verification of Mrs V’s concerns about Mr Z’s conduct that she made reference to it to each of these persons. Where her recollection of the details of each conversation varies from the recollection of the other staff, the Tribunal prefers the evidence of Mrs V. It is more likely that Mrs V retained a more detailed recollection of those conversations and she, now being free of any constraints of maintaining employment or friendship at the Motel, is more likely to be unreserved in those recollections.

45 These other staff members stated that they had no trouble with the conduct of Mr Z then and except for one incidence of bottom pinching by Mr Z of another staff members, no other staff member complained to them about Mr Z.

46 One former staff member gave evidence about her experience with Mr Z. She was employed from June 1996 to September 1996. She stated that she resigned from her employment because of Mr Z’s attitude towards her. She described that on 3 or 4 occasions, when Mr Z came to the room where she was cleaning, he stood in the doorway staring at her and squeezing the stress balls. On one occasion he told her to stop wearing bike pants under her uniform dress. She stated that the shorts were not visible under the dress unless one looked up her dress.

47 Mrs V was so distressed at the time of her resignation on 25 July 1996, she was referred by her doctor to a sexual assault counsellor at the District Hospital. She maintained regular counselling treatment from successive counselling co-ordinators and she still continues to receive counselling on a monthly basis. For the purposes of giving evidence to the enquiry, Mrs V has seen a psychologist and a psychiatrist. The Tribunal has had the benefit of written reports and evidence from these specialists. Those specialists took a history of Mrs V’s background and in each instance, with only minor differences, her descriptions of her experience with Mr Z was consistent with their evidence before the Tribunal. The evidence of the specialists will be dealt with in more detail later.

48 The only aspect of Mrs V’s evidence which raises a doubt as to her reliability is her statement that she ceased to be employed at the Deli in March 1998 because the financial position of the business obliged the owners, Mr and Mrs H, to terminate the employment. This is contrary to the evidence of the owners, both of whom stated that Mrs H had cause to reprimand Mrs V for her unhelpful attitude to a customer and she told Mrs V to go home and think about what she had done. Mrs V did not return. The owners described Mrs V as an excellent worker although she was not apt at dealing with male customers and spent most of her time in the kitchen away from the customers.

49 In this instance, the Tribunal accepts the evidence of Mr and Mrs H in preference to the evidence of Mrs V as to the reason for the cessation of her employment. It is more likely that Mrs V was still suffering from post traumatic stress and was unable to return to the employment and that her employment was not terminated for financial reasons.

50 There is another discrepancy in the evidence relating to this employment. Mrs V stated that the employment ceased in March 1998 and Mrs H stated that her records show that Mrs V ceased employment in July 1998. She did not provide any documents to support this statement. Mrs V’s employment at the deli was arranged through the Job Focus Scheme. She was employed under a job subsidy agreement, the latest agreement expired in July 1998. The Tribunal accepts that Mrs V’s employment ceased before the expiry of the agreement. Mrs H was probably confusing the date of expiry of the agreement with the date of cessation of employment.

51 In the overall view of the evidence taken by the Tribunal, the discrepancies in the evidence of Mrs V do not detract in any material way from the balance of her evidence.

Relevant provisions of the Act

52 Mrs V and Mrs X claim that Mr Z’s conduct towards them constitutes direct discrimination on the ground of sex, under Section 24(1)(a) of the Act; by virtue of Section 53 of the Act, this conduct of Mr Z is deemed to be conduct for which the First Respondent is liable; the unlawful conduct of the First Respondent is in breach of Section 25(2) of the Act; Mr Z, the Second Respondent, is liable for the unlawful conduct of the First Respondent, by virtue of Section 52 of the Act; the First and Second Respondents have joint and several liability by virtue of Section 53 of the Act. Those Sections of the Act are as follows:

Section 24: “(1) A person (“the perpetrator”) discriminates against another person (“the aggrieved person”) on the ground of sex if, on the ground of the aggrieved person’s sex or the sex of a relative or associate of the aggrieved person, the perpetrator:
(a) treats the aggrieved person less favourably than in the same circumstances, or in the circumstances which are not materially different, the perpetrator treats or would treat a person of the opposite sex or who does not have such a relative or associate of that sex; or

Section 53. Liability of principals and employers:
(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.
(2) If both the principal or employer and the agent or employee who did the act are subject to any liability arising under this Act in respect of the doing of the act, they are jointly and severally subject to that liability.

Section 25(2) It is unlawful for an employer to discriminate against an employee on the ground of sex:
(a) in the terms or conditions of employment which the employer affords the employee;
(b) by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment; or
(c) by dismissing the employee or subjecting the employee to any other detriment.

Section 52. Aiding and abetting etc
It is unlawful for a person to cause, instruct, induce, aid or permit another person to do an act that is unlawful by reason of a provision of this Act.”

Findings of sex discrimination in Mrs V's complaint

53 Taking into account the need for the Tribunal to have regard to the serious nature of the charge of sexual harassment in considering the evidence in any enquiry of this nature, the Tribunal is satisfied that Mrs V has discharged the onus on her of to establish on the balance of probability that between February 1996 and 24 July 1996 Mr Z engaged in a course of conduct with Mrs V, consisting in particular in the specified acts related to the Tribunal by Mrs V and that course of conduct was unwelcome by her and that despite her making it clear to Mr Z that she rejected his conduct, he persisted in the harassment. Mr Z projected himself as a person in a position to exert authority over Mrs V and other house-maids at the Motel and he sought to use his position to influence Mrs V to accept his overtures. In these circumstances, the conduct of Mr Z was discriminatory. It was not conduct which in similar circumstances Mr Z would have directed to a male employee.

54 The conduct was directed at Mrs V because she is a female. It follows that Mr Z discriminated against Mrs V in contravention of Section 24(1)(a).

Mrs V's state of health

55 Evidence was submitted to the enquiry as to Mrs V’s mental condition as a consequence of the discriminatory experiences to which she was subjected at the Motel. The Psychologist called by Mrs V examined her on 11 March 1998 and provided a report based on that interview. A further report was tendered in which the psychologist commented on the report of a psychiatrist tendered by the First Respondent. Both Specialists gave evidence before the enquiry. They agreed that Mrs V suffers from Post Traumatic Stress Disorder (PTSD), but they disagreed on the causes of that condition. The psychiatrist diagnosed Mrs V suffering Clinical Depression and Major Depressive Disorder, Single Episode, Moderate, Chronic. The onset of this latter disorder is uncertain in the opinion of the psychiatrist as it may arise at the time Mrs V ceased employment at the Motel or following the subsequent severe medical conditions which she suffered.

56 The major differences between the specialists relates to the cause of her mental condition. The psychologist attributes the conditions to the harassment suffered by Mrs V at the Motel. The psychiatrist who interviewed Mrs V on 13 December 1999 made an in-depth analysis of Mrs V’s background experiences. He describes the psychologist’s opinion as having grossly simplified Mrs V’s life history of traumas and failed to report on the significant life stresses of Mrs V except in relation to Mr Z and in particular that the psychologist did not report on the significance of the medical problems of Mrs V in 1996 and 1997.

57 The psychiatrist did not support the view of the psychologist that Mr Z’s behaviour was responsible for the two mental disorders. He did concede that Mr Z’s conduct would be an aggravation of the PTSD. He considered that it is more likely that the condition was caused by a traumatic experience of Mrs V which occurred at the Motel but which was not associated with Mr Z. It involved Mrs V being detained in a bedroom by a group of bikies who were staying at the Motel.

58 The view of the psychiatrist that Mr Z’s conduct could have caused an aggravation of the PTSD appears to concentrate only on the occasion when Mr Z told Mrs V to take off her clothes and get into bed. The earlier and independent incident involving the group of bikies took place when Mr Z had already embarked on his course of discriminatory conduct towards Mrs V. The opinion does not indicate whether this situation was considered by the psychiatrist.

59 In her subsequent comments on the psychiatrist's report, the psychologist states:

“These premorbid stresses would most likely have made Mrs V more vulnerable to psychological damage from the sexual harassment. The premorbid stresses would more likely mean that she was an easier target for sex harassment and her life experiences would not have provided her with strategies that would stop sexual harassment.”

60 The psychologist concludes her second report:

“I am of the opinion that all of the stresses premorbidly and post commencement of sexual harassment have had effects on Mrs V and increased her vulnerability to psychological harm however they did not diminish the serious nature of the ongoing sexual harassment and its psychological harm.”

61 It is clear that when Mrs V commenced employment at the Motel she had suffered severe traumatic events described by the psychologist as premorbid stresses.

62 The difference of opinion between the experts is mainly one concerning the degree to which they consider the experiences suffered by Mrs V arising from the conduct of Mr Z, affected or aggravated the stresses already affecting her.

63 However, it is not appropriate for the Tribunal to embark on an examination of the degree of such affectation or aggravation. The state of evidence does not permit such a course. The First Respondent did not produce evidence that would enable the Tribunal to disentangle or attribute the mental condition of Mrs V to any particular stress or event. The position is covered by the following passage from the decision of the Equal Opportunity Board, Victoria, in Fares v. Box Hill College of TAFE and Ors (1992)EOC 92-391 at 78785:

“It was put to the Board by counsel for the First and Second named Respondents that as the act of discrimination which is within the Board’s jurisdiction may be said to only result in the final straw in a process of deterioration in Ms Fares, that the Board ought to attempt to in some way pluck out what percentage of her collapse can be directly related to the instances of discrimination we find to be within our jurisdiction. The Board’s view is that this is not an appropriate way to deal with her compensation but that the Respondents must effectively take her as she comes to them at the point in time when the acts of discrimination occur and, the Respondents still must bear the whole of the responsibility for the consequences that emanate from their discrimination which occurred within our jurisdiction. It is well established, in the Board’s view, that a wrongdoer must take his/her victim as he/she finds him/her, ie, the egg-shell skull rule applies and there is no reason for this Board to divert from the principle in awarding damages in this case. See Purkess v. Crittenden (1965) 114 CLR 164 AT Page 171-172 per Windeyer J:

“Her infirmities before the accident may have made its consequences more serious for her than they would have been for a person in good health. But that does not reduce the damages for which the defendant is liable.”

If the Respondent sought to trace the complainant’s injuries to another cause other than a discrimination, they must do so on the evidence. See Watts v. Rake 108 CLR 158 per Dixon, CJ page 160 –

“If the disabilities of the plaintiff can be disentangled and one or more traced to causes in which the injuries through the accident play no part, it is the defendant who should be required to do the disentangling and to exclude the operation of the accident as a contributory cause.”

64 The experts agree that Mrs V would benefit from further treatment. She stated that she would undergo treatment as recommended by the psychologist.

65 The Tribunal concludes that Mrs V has suffered an aggravation of her mental condition as a result of the discriminatory conduct of Mr Z. She suffers from PTSD and a depressive disorder. She is entitled to be compensated for this effect on her and for the pain and suffering and further loss of enjoyment of life and for the humiliation flowing from the discrimination. In addition, Mrs V is entitled to have the cost of the psychological treatment recommended for her to be paid.

66 The qualification of loss suffered by Mrs V will be dealt with later.

The responsibility of the First Respondent

67 Mrs V during the episodes of discrimination, was in a situation where she was already distressed from earlier adverse experiences; She understood Mr Z to be the Manager of the Motel (not an unreasonable assumption by her in view of Mr Z’s conduct towards the house-maids); she received no advice or written material as to grievance procedures at the Motel nor, in particular, was she told of an Equal Opportunity Policy or a person who she could approach with a grievance; no material relating to anti-discriminatory conduct was displayed at the Motel; she did not consider it to be appropriate to complain to Mr Z’s wife.

68 Mrs V was inexperienced in the highly stressful situation she faced and she lacked knowledge and confidence in dealing with it. She was vulnerable to the discriminatory conduct of Mr Z. She resisted telling her husband as she did not know how he would react towards her. She felt that she may be to blame.

69 On the occasion when she made mention of her distress to some of her co-workers, she was shown little support and on at least one occasion was told peremptorily to tell Mr Z to piss off. It was not until after the last occasion Mr Z presented the business card to Mrs V on 17 July 1996, and she later showed the card to Mrs M, that she was persuaded by Mrs M that she should tell her husband of Mr Z’s conduct.

70 She did not tell Mr V until 25 July 1996 by which time Mrs V had decided to resign from her employment. Mr V described his shock when Mrs V told him of Mr Z’s conduct. That day Mr V phoned the Motel and spoke to Mrs Z and told her that Mrs V would not be returning to work because of the sexual harassment by Mr Z. Later that night Mr Z telephoned Mr V, who denied that anything had happened and said that he was “only joking” and said that Mrs V was a good kid.

71 Mrs V knew that Mr and Mrs W were the owners of the Motel. She had seen them at the Motel on two occasions. She had not spoken with Mr W and had only a casual fleeting request from Mrs W for additional towels for her room.

72 Mrs V had been told by Mrs M that on one occasion Mr W had reprimanded Mr Z over an incidence when Mr Z had pinched the bottom of a waitress.

73 Mrs V stated that she had not approached Mr or Mrs W about Mr Z nor did she try to contact them as she thought that Mr Z would deny his conduct and that she would not be believed. Mrs V did not know the address or phone number of Mr and Mrs W.

74 Finally when she decided to resign she approached the head chef who was seated at the desk in the Motel office, on an evening when the chef acted as relieving manager on the day Mr and Mrs Z were off duty. Mrs V asked for the W’s phone number and she told the chef that she wanted to contact the Ws about Mr Z annoying her. There is a discrepancy between the evidence of Mrs V and the head chef about the co-operation given to Mrs V in retrieving the phone number. The chef says that she retrieved the phone number from a slip of paper attached to the side of the filing cabinet in the office. It was not directly accessible by Mrs V nor was it displayed elsewhere in the Motel premises.

75 The following day after advising Mr V of her situation, Mr V phoned the number given to Mrs V by the chef. Mr V was told that Mr and Mrs W were not at that location which was a holiday home on the Central Coast. Mr and Mrs V did not know how to spell the surname of Mr and Mrs W. They telephoned "information" to try to find out the address of the Ws at Rd, NSW or R in Victoria. These attempts were unsuccessful. When finally Mr V examined Mrs V’s Group Certificate they realised that the name of the employer was Y and this led them to identify a telephone number under that name in Richmond, NSW. This process took 2-3 days. Mr V rang that phone number and spoke to Mrs W. He told Mrs W that Mr Z had sexually harassed his wife and that Mrs V would not be returning to work. Mr V told Mrs W of his telephone conversation with Mr Z. Mr V pointed out to Mrs W that his wife was 41 years of age and was not a kid and she did not consider Mr Z’s conduct was a joke. Mr V described to Mrs W some of the incidents of Mr Z’s conduct with Mrs V. Mrs W apologised to Mr V and said she would discuss it with Mr W and they would decide what to do and they would get back to Mr V. Mr V did not hear back from Mr and Mrs W.

76 Mr W next contacted Mrs V in August or September 1997 when he telephoned her at her employment at the Deli in C, after he had received the formal notification from the Board of Mrs V’s complaint. Approximately 12 months elapsed after receipt of her complaint and the formal notification of it to the First Respondent.

77 Mr W stated that after Mr V’s phone call in July 1996, he telephoned Mr Z and was told:

“She’s mad. I was just joking with her.”

78 Mr and Mrs W took no further action at that time. They visited the Motel shortly after but no exact date was given to the Tribunal. Mr W decided to keep the allegations away from Mrs Z as he did not wish to upset her and risk losing her as manager. She was doing a good job, he said. On that visit to the Motel, Mr W asked some of the staff members about Mrs V’s complaint. Some of the staff who he spoke to said that Mrs V had mentioned problems with Mr Z but no staff member said that they had experienced sexual conduct towards them by Mr Z. It is noted that Mrs X was not one of the staff members who was contacted by Mr W. Two of the staff to whom Mr W spoke to were persons who Mrs V had told about Mr Z’s conduct.

79 Mr W stated that he went into “it” with Mr Z although he did not describe the details of his conversation other than that Mr Z told him:

“There’s nothing in it.”

80 Mr W summed up his position as now having one word against the other and that he put down the allegations to Mr Z’s nature as he was always having somebody on. Mr W then tried to contact Mr V. He telephoned Mr V at his home on two occasions, as he wanted to find out more details of the allegations. On these occasions the phone was not answered. He did not persist in these phone attempts or otherwise seek out Mr and Mrs V as he thought that Mr V would come back to him. It was not until he was formally notified by the Board that he understood Mrs V was pursuing her allegations.

81 On receipt of that notification, Mr W contacted Mrs V at the Deli in C. That conversation which he intended to be conciliatory, became acrimonious and further exacerbated the position between Mrs V and Mr W. On 19 September 1997 Mr and Mrs W wrote a letter to Mr V which stated:

“As you will not speak to us on the phone, we are writing to sincerely apologise to you about the incidents that happened at (the Motel). We only wish you said something to us when it first happened.”

82 Mrs V stated that she accepts the apology in this letter as satisfying that part of the Orders which she seeks from the Tribunal in this enquiry.

83 This apology cannot overcome the lack of an earlier concerted response by Mr and Mrs W to the complaint. Spontaneity in responding in a positive way to Mrs V’s complaint was necessary if Mr and Mrs W are to establish that they did not authorise the discriminatory conduct of Mr Z after they became aware of it. In this respect, the Tribunal refers to the Judgment of Studdert J in Shellharbour Golf Club v. Wheeler (1999)NSW SC224 page 9:

“……. For the purposes of section 53, the word “authorise” embraces “sanction, approved, countenance and permit”. Permission may be inferred from inactivity and indifference where the person sought to be made liable is aware that some particular behaviour may occur.”

84 Although this passage is phrased in terms relative to prospective conduct, in the view of the Tribunal the reference to inactivity and indifference is also apposite in considering the question whether authority was or was not given by an employer to discriminatory conduct after that conduct occurred.

85 After the visit to the Motel, Mr W stated that he had no further contact about the allegations of Mrs V except in a telephone conversation with Mrs M in December 1996. In that conversation Mrs M told Mr W that Mrs V had taken out an AVO against Mr Z. Mr W said he then phoned Mr Z who told Mr W that when he was served with the Summons he told the Process Server that he would not be at the hearing and he said he was not going anywhere near Mrs V. He said:

“The woman is mad.”

86 Mr W did not state that Mrs M told him of other details of Mrs V’s complaint. Mrs M stated, however, that she also told Mr W about the business card which Mrs V had shown her and that it was an old business card with the previous manager’s name on it and that it had a box ticked yes and box marked no. Mrs M also stated that she told Mr W what Mrs V told her had happened at the Motel. Mrs M did not describe in detail what she related to Mr W in this regard. This conversation with Mr W was in the context of a complaint by Mrs M that Mr Z was trying to push her out of her employment at the Motel because of her friendship with Mrs V.

87 The Tribunal accepts Mrs M’s evidence of this conversation with Mr W as it was important to her in her attempt to demonstrate to Mr W that Mr Z was persecuting her. The conversation demonstrates that Mr W had available to him corroboration of an important part of Mrs V’s allegations and had Mr W sought to pursue the details of the AVO application, he would have obtained further confirmation from the police of the nature of those allegations. Mr W preferred to take no further action in the hope that the complaint would not develop. The lack of adequate response by Mr W does not support his evidence that he took the complaint seriously but could find no substance to it.

88 Mrs W, in her evidence, acknowledged that there was no system at the Motel which enabled staff to know who were the owners or where the owners could be contacted. This position was clearly demonstrated from the experience of Mrs V.

89 Mr and Mrs W had attempted to adopt an EEO Policy at the Motel. After an instance with the previous manager involving Mrs M, the Ws arranged for their daughters, who were experienced in personnel management, to prepare a statement setting out the terms of an EEO Policy. A copy of the statement was in evidence. The policy is a comprehensive document adopting anti-discrimination principles. It contains the statement:

“The overall responsibility for monitoring the effectiveness of the policy is vested in the Manager, which the Directors will monitor the process, however, all employees must accept their personal involvement in the practical application.”

90 Without attempting to interpret this statement, it at least seeks to make the manager responsible for its implementation. The document also contains a procedure for making a complaint and a detailed procedure for determining a complaint. It states:

“Staff who have a complaint should discuss the matter with the Manager or one of the Directors.”

91 At the time Mr and Mrs Z took up their appointment as managers of the Motel in December 1995, Mr and Mrs W explained to them that they had adopted this policy and they handed a copy of the Statement to Mr and Mrs Z. The copy statement was then placed in the safe. No mention of the policy or the statement was made during the period of the management by Mr and Mrs Z. No mention of the policy was made to the staff by Mr and Mrs W nor was there evidence that Mr or Mrs Z referred to the Policy or the Statement in conversations with the staff. The Policy was not displayed at the Motel. Mrs V and Mrs X were not aware of it. Again Mrs V’s experience demonstrates that the lack of publication of the policy contributed to her difficulty in making her complaint.

92 Mr W points to his prompt handling of the complaint made by Mrs M against the previous manager and to the complaint in January 1996 from the waitress about Mr Z pinching her bottom, as demonstrating his attitude to the application of an Anti-Discrimination Policy and his preparedness to apply the policy and take action to correct the conduct of the manager of the Motel.

93 The Tribunal accepts that these instances support that Mr W does not endorse sexual harassment conduct. However, the response to these relatively minor incidents were not matched by the attitude of Mr and Mrs W in dealing with the far more serious allegations of Mrs V or of Mrs X. These allegations were not likely to be disposed of by speaking to Mr Z. It was too late for the harm done to Mrs V or to Mrs X to be corrected by actions between employer and employee. Mrs V had resigned her employment, as had Mrs X, by the time Mr and Mrs W were aware of their complaints. These complaints could not be resolved by severe talking to Mr Z. They required delicate and sympathetic contact with Mrs V and her husband, and with Mrs X, at least initially to ascertain what could be done to assist them to overcome their experiences. Mr W did not elect this course but took an approach of making cursory enquiries of the perpetrator of the allegations by Mrs V and some staff members and to ignore the harder evidence of corroboration of Mrs V’s allegation. To do otherwise would open up for Mr W the prospect of disturbing the good working relationship with Mrs Z and the possibility of being faced, according to his evidence, with a claim by her for wrongful dismissal. Mr W hoped that the complaint would go away.

94 The Tribunal concludes that the First Respondent has not discharged its onus of satisfying the Tribunal that the First Respondent did not authorise the discriminatory conduct of the second Respondent, either before or after that conduct was perpetrated. This conclusion is reached after consideration of the approach adopted by the First Respondent to the complaint and the lack of knowledge of the complaint by Mr and Mrs W until after the conduct was brought to a stop by Mrs V’s resignation and the failure of the First Respondent to adopt processes which would permit staff and in particular, Mrs V and Mrs X, to inform it, through its directors, of conduct of this nature by its manager. The First Respondent has been unable to demonstrate that it did not authorise that conduct, before or after it was carried out. The First Respondent, through Mr and Mrs W, knew that Mr Z had some propensity for sexual contact with staff. This knowledge did not motivate the Directors of the First Respondent to institute the EEO Policy lying in the safe, in a more positive and effective way or take any other action to oversee Mr Z’s conduct.

95 It is necessary for this conclusion to be reached if Section 53 of the Act is to operate to deem the discriminatory conduct of the Second Respondent, as the employee of the First Respondent, to be the conduct of his employer, the First Respondent. The Tribunal has found that the conduct complained of by Mrs V was discriminatory in contravention of Section 24 (1)(a) of the Act. It follows from the relationship of employee and employer between the Second Respondent and the First Respondent that the conduct of the Second Respondent is deemed to have been done by the First Respondent.

96 The discriminatory conduct took place in the workplace at the Motel. The conduct was pervasive of the working conditions afforded to Mrs V. The Tribunal accordingly finds that the conduct was unlawful and in breach of Section 25(2)(a) of the Act as it discriminated against her in the terms and conditions of her employment. A house-maid in Mrs V’s position is entitled to work in circumstances where she will be free from sexual harassment. The conduct of the Second Respondent, and by virtue of the application of Section 53 of the Act, of the First Respondent – her employer, was in breach of Section 25(2)(a) in a fundamental aspect of her employment.

97 The discriminatory conduct also caused Mrs V to resign from her employment and therefore subjected to her to a detriment, in breach of Section 25(2)(c) of the Act.

98 The application of Section 53 in this context was recently illustrated in the decision of Studdert J in Shellharbour Golf Club v. Wheeler (Supra).

Submissions of the Respondent

99 In written submissions to the Tribunal, counsel for the First Respondent has presented propositions dealing with primary or personal liability and vicarious liability, seeking to establish that the First Respondent in the circumstances of this complaint could not be held liable for the discriminatory conduct of Mr Z. These propositions have been taken into account by the Tribunal in reaching the conclusions which are set out earlier.

100 In effect, the Tribunal does not accept that the First Respondent is not vicariously liable for that conduct.

101 It is appropriate that the Tribunal refers specifically to the submission that for the First Respondent to be primarily liable for that conduct the Applicant had to establish that the First Respondent failed to exercise reasonable care to prevent the discrimination and that failure caused personal injury to the Applicant. This proposition is couched in terms referable to the tort of negligence. Such a concept in the view of the Tribunal, does not form part of the statutory frame work of the Act, and in particular, is not a premise for a finding of discriminatory conduct under section 24 of the Act.

102 The findings of discriminatory conduct in this complaint, relate to the actions of Mr Z, the employee, and although his actions per se do not constitute an unlawful act under Section 25, by virtue of the application of Section 53, the First Respondent, the employer, is deemed to have carried out such conduct and hence Section 25 operates to render the First Respondent in breach of that section.

103 Section 53(2) prescribes that if the employer and the employee are liable for the discriminatory conduct, they are jointly and severally liable.

104 The Act establishes a primary liability in the First Respondent by the application of Section 53 and Section 25. The Liability of the Second Respondent arises under Section 52 of the Act (See later).

105 Both respondents have liability “arising under the Act in respect of the doing of the act” and that liability is joint and several.

Liability of the Second Respondent

106 The question of the liability of Mr Z falls to be considered under Section 52 of the Act.

107 The operation of section 52 in circumstances similar to the circumstances of the complaint of Mrs V, and of Mrs X, was considered in M v. R Pty Ltd (Supra) at 77175:

“…Where an employer is liable vicariously (by virtue of Section 53) for an act of unlawful discrimination, the provisions of Section 52 are applicable to any person who “causes, instructs, induces, aids or permits” the employer to do an act “that is unlawful by reason of this Act.”

In the present case, the Second Respondent may properly be said to have caused, induced, acted or permitted the relevant unlawful acts on the part of the First Respondent’s company. Section 53(sic Section 52) is couched in the language of criminal complicity. In that area of the law it is quite possible for the acts of one natural person to constitute the principal offence on the part of the company and an accessory offence on the part of the nature person; see Gillies, Criminal Law, 1985 PP119-120 and cases there cited.

Accordingly, once principal liability is established as against the employer, the Complainant is able to proceed against the Second Respondent jointly or severally.”

108 In this complaint the Tribunal has found that Mr Z was the perpetrator of the discriminatory conduct and the First Respondent was in breach of Section 25(2)(a) and (c) as a consequence of the application of Section 53. Mr Z caused the First Respondent to do the unlawful acts. It seems to the Tribunal that Mr Z can also be said to have permitted the unlawful acts of the First Respondent. It is clear that Mr Z has acted unlawfully in the terms of Section 52.

109 By virtue of Section 53, Mr Z is jointly and severally liable with the First Respondent for those acts.

110 Counsel for the First Respondent has submitted that the operation of Section 52 (couched in terms of criminal complicity) and Section 53 (involving punitive consequences for the First Respondent) requires proof that Mr and Mrs W had actual knowledge and belief that the discriminatory conduct was or might be occurring and that Mr and Mrs W did not have actual knowledge or belief that the conduct was occurring.

111 This issue did not arise in M v. R Pty Limited where the perpetrator was a director of the employer company. It was not raised in the Shellharbour case and the Tribunal is not aware that the question has been previously considered. It seems to the Tribunal that as a matter of construction, the liability of the First Respondent is not dependent on a finding against the Second Respondent under Section 52. The submission of the First Respondent would require a dependence between these sections of the Act, in order for the liability of the First Respondent to be finally determined. As the matter has been dealt with by the Tribunal, the initial finding is one of primary liability against the First Respondent by virtue of the combined operation of Section 53 and Section 25. At that point the First Respondent is deemed to have done acts which are unlawful under the Act. The issue of the liability of the Second Respondent under Section 52, although dependent on a finding of an unlawful act, is confined to a consideration of liability of an accessory. That issue can only be determined after a finding of primary liability flowing from an act that is itself unlawful.

112 The Tribunal accordingly finds that the Second Respondent is liable jointly and severally with the First Respondent for the unlawful discriminatory conduct directed by Mr Z against Mrs V.

Summary of findings

113 (1) The Tribunal is satisfied that the following claims by Mrs V are substantiated:

(a) The Second Respondent subjected Mrs V to unwelcome sexual harassment which constituted discrimination on the ground of her sex, in contravention of Section 24 of the Act.
(b) The First Respondent, as the employer of the Second Respondent, is deemed by virtue of Section 53 of the Act, to have done the discriminatory acts.
(c) The discriminatory acts deemed to have been done by the First Respondent were unlawful and in breach of Section 25(2)(a) and (c) of the Act.
(d) The Second Respondent caused and permitted the First Respondent to do the unlawful acts.

(2) The First Respondent and the Second Respondent are jointly and severally liable for the unlawful acts about which Mrs V complains.

Remedies

114 It is necessary to consider the appropriate remedies and compensation to be awarded to Mrs V for the wrongs she has suffered through Mr Z’s actions.

115 Mrs V stated that she accepts the apology of Mr and Mrs W in their letter to her of 17 September 1997. She did not state whether she was pursuing her request for an apology from Mr Z. The Tribunal considers that Mr Z should be required to apologise to Mrs V and will direct that he do so.

116 Mrs V was also seeking directions from the Tribunal that the First Respondent change its policy and procedures at the Motel to ensure other females are not subjected to sexual harassment and to introduce an education program at the Motel to support those procedures. The Tribunal was not addressed by the Applicant on these issues and in the absence of material to demonstrate how an effective direction could be made, the Tribunal does not propose to adopt this requirement. It is noted however that the First Respondent made reference to changes it has instigated at the Motel to ensure that an EEO policy is observed.

117 The Tribunal is then required to examine what monetary award should be made to compensate Mrs V. For the reasons dealt with earlier, the Tribunal is satisfied that Mrs V suffered hurt and humiliation and pain and suffering as a result of her experiences at the Motel. The Tribunal has also dealt with the impacts of these experiences on her mental condition and the aggravation of her condition. She continues to suffer from a depression disorder. The medical experts agree that Mrs V would benefit from a course of psychological or psychiatric treatment which would involve sessions over 12 months estimated to cost $3,150.00. Mrs V indicated that she was willing to undergo this treatment.

118 The amount of compensation should take into account the nature of the sexual harassment and its immediate and longer term effects on Mrs V. She described her feelings of fear and helplessness and her inability to know how to deal with Mr Z. The episodes caused her considerable anxiety and contributed to her hurt and humiliation. The aggravation of her mental condition is also to be assessed. Taking account of all these matters and the degree of affectation that she suffered as a result of her experiences, the Tribunal has decided by way of general damages to award her the sum of $12,000.00.

119 Mrs V was unemployed from 25 July 1996 to 10 September 1996 when she was employed at the Deli. It is agreed that her gross loss of wages for this period should be assessed at $167.00 per week amounting to a total of $1,837.00. Mrs V ceased in that employment in March 1998 and has been unemployed since. No evidence was put to the Tribunal as to her efforts to obtain employment in this period. She had made efforts to seek alternative employment during the period of the harassment and after she resigned until she was employed at the Deli. The Tribunal does not accept that Mrs V left the Deli in March 1998 because that business was unable for financial reasons to support her. The Tribunal is not satisfied that Mrs V is entitled to an award for loss of earnings after she ceased employment at the Deli in March 1998. Mrs V elected not to continue in that employment and she has failed to satisfy the Tribunal that she has made reasonable efforts since that time to be re-employed.

Directions

120 The Tribunal directs:

(1) The Second Respondent, within seven days of receiving written advice from Mrs V’s solicitors of this direction, to send to Mrs V a letter of apology for his acts of sexual harassment towards her while she was employed at the Motel. The Second Respondent shall send that apology by certified prepaid post addressed to Mrs V care of the address of her solicitor.
(2) The First Respondent and the Second Respondent to pay to Mrs V an amount of $16,987.00.
(3) The liability of the First and Second Respondents to pay the amount of $16,987.00 is joint and several. The Applicant is entitled to recover the full amount awarded from either respondent. The Tribunal will assess the respective contributions to be made between the respondents after application by either respondent to the Registrar to fix a date for hearing the application.
(4) It is noted that the amount of $16,987.00 comprises the following awards:
(i) $12,000.00 for general damages;
(ii) $1,837.00 for loss of earnings; and
(iii) $3,150.00 for medical treatment.
(5) Mrs V to apply the amount awarded for medical treatment towards treatment from a psychologist or psychiatrist of her choice.
(6) If the parties to this enquiry are unable to agree upon an award and assessment of the costs of this enquiry and the hearing on 24 September 1999 within a period of 21 days of the date of this decision, any one of the parties is at liberty to apply to the Registrar to fix a date for hearing an application by the Tribunal to determine the question of those costs.