Wattle v Kirkland (No.2)
[2002] FMCA 135
•21 August 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WATTLE v KIRKLAND & ANOR (No. 2) | [2002] FMCA 135 |
| HUMAN RIGHTS – Sex discrimination – sexual harassment – disability discrimination – contested evidence of incidents of harassment – credibility of applicant and respondents. PRACTICE AND PROCEDURE – Interest – appropriate rate of pre-judgment interest in human rights proceedings. |
Disability Discrimination Act 1992 (Cth), ss.15, 17
Federal Magistrates Act 1999 (Cth), s.76
Federal Magistrates Court Rules 2001 (Cth)
Human Rights and Equal Opportunity Commission Act 1986 (Cth), s.46PO
Sex Discrimination Act 1984 (Cth), ss.5, 14, 16, 28A, 28B
Briginshaw v Briginshaw (1938) 60 CLR 336
Charles v Fuji Xerox [2000] FCA 1531
Elliott v Nanda & Commonwealth [2001] FCA 418
Hall v A & A Sheiban Pty Ltd (1988) 20 FCR 217
Kirkland v Wattle [2001] FCA 145
Namol Pty Ltd & Anor v A U Baulderstone Pty Ltd & Ors (1993) 119 ALR 187
Watkins v Fuyer & Anor (1995) EOC ¶92-667
Wattle v Kirkland [2001] FMCA 66
| Applicant: | MARGARET JEAN WATTLE |
| First Respondent: Second Respondent: | RAYMOND KIRKLAND DAPHNE GERALDINE KIRKLAND |
| File No: | SZ199 of 2001 |
| Delivered on: | 21 August 2002 |
| Delivered at: | Sydney |
| Hearing Dates: | 2 July in Mudgee 30 July in Sydney |
| Judgment of: | Driver FM |
REPRESENTATION
| Solicitors for the Applicant: | Mr D Hillard Clayton Utz |
| Counsel for the Respondent: | Mr D Williams |
| Solicitors for the Respondent: | Phillip Kruit, Solicitor |
ORDERS
The Court declares that the first respondent sexually harassed the applicant, and that both respondents discriminated against the applicant, contrary to the Sex Discrimination Act 1984 (Cth).
The respondents are to pay damages to the applicant in the sum of $28,035, including pre-judgment interest up to and including 21 August 2002, with any further pre-judgment interest to be assessed at the rate of 9.5 per cent up to the date of entry of these orders.
NOTE
These orders may be settled and entered in accordance with Order 36 of the Federal Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ199 of 2001
| MARGARET JEAN WATTLE |
Applicant
And
| RAYMOND KIRKLAND |
First Respondent
DAPHNE GERALDINE KIRKLAND
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application brought pursuant to s.46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (“the HREOC Act”) alleging that the applicant was the subject of sexual harassment contrary to ss.28A and 28B of the Sex Discrimination Act 1984 (Cth) (“the SDA”). The applicant also alleges discrimination contrary to both the SDA (s.5 and either s.14(2)(d) or s.16(d)) based upon the alleged harassment and also that her dismissal from employment was a breach of the Disability Discrimination Act 1992 (Cth) (“the DDA”) (either s.17(1)(b) or s.15(2)(c)).
The applicant was engaged as a taxi driver by the respondents who at the time operated a taxi cab business in Mudgee. The applicant claims that she was sexually harassed by the first respondent on a number of occasions in early 2000. The applicant was dismissed by the second respondent on 8 February 2000. The applicant pursues her claim of sexual harassment against the first respondent only and pursues her claim of sex discrimination and disability discrimination against both respondents on the basis that they are jointly and severally responsible for liabilities incurred in their operation of the taxi cab business.
The respondents deny that any incidents occurred between the first respondent and the applicant constituting sexual harassment. They deny that they discriminated against the applicant.
The applicant made a complaint to HREOC which was terminated on 16 December 2000 on the basis that there was no reasonable prospect of the matter being settled by conciliation. The applicant filed her application under s.46PO in the Federal Court on 12 January 2001. That application was transferred to this Court by Beaumont J on 27 April 2001. The application was heard by Federal Magistrate Raphael in August 2001 and he gave judgment on 6 September 2001: Wattle v Kirkland [2001] FMCA 66. That decision was overturned on appeal on 14 February 2002 by his Honour Dowsett J: Kirkland v Wattle [2002] FCA 145. His Honour ordered that the appeal be allowed and that the matter be remitted to this Court for rehearing before a different Federal Magistrate. These proceedings were conducted in pursuance of his Honour’s orders.
The applicant was represented pro bono by Mr D Hillard of Clayton Utz, pursuant to the pro bono scheme administered under Part 12 of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”). It is appropriate that the Court should recognise the contribution of members of the legal profession to the efficient and fair administration of justice by appearing on this basis.
The applicant’s case
The applicant relied upon her application as well as upon her own affidavit, filed on 27 May 2002 and an affidavit by John Hallett, filed on the same day. The applicant also relied upon documents annexed to her original application. Both the applicant and Mr Hallett were cross‑examined on their affidavits.
The substance of the applicant’s case is that she was subjected to several incidents of sexual harassment by Mr Kirkland during the period in which she was engaged as a taxi driver with Kirk’s Radio Cabs between 27 November 1999 and 8 February 2000. The applicant asserts that the respondents are liable for sexual harassment contrary to either s.28A or s.28B(3) of the SDA or alternatively, s.28B(1) of the SDA. The applicant’s claim is based on the alternative propositions that she was engaged as an independent contractor by the respondents under a contract of bailment or alternatively, that she was an employee.
At trial, an additional claim was added to the application. This is that the respondents discriminated against the applicant by reason of her sex contrary to s.16(d) or s.14(2)(d), depending upon whether the applicant is regarded as a contractor or an employee. Further, the applicant now alleges that she was also the victim of disability discrimination contrary to the Disability Discrimination Act1992 (Cth) (“the DDA”) in that she was either dismissed from her employment or had her contract terminated because of her disability, that being an asthmatic condition aggravated by stress. The applicant asserts that the termination was contrary to either s.17(1)(b) of the DDA or, alternatively, s.15(2)(c) of the DDA. Mr Hillard, for the applicant, submitted that the applicant was entitled to amend the legal construction she placed upon the conduct of the respondents, provided that the complaint as reconstructed arises out of the same factual allegations as formed the basis of the complaint to HREOC. Mr Hillard relies upon the decision of the Federal Court in Charles v Fuji Xerox [2000] FCA 1531 per Katz J at paragraph 137, to support that submission.
The applicant also relies upon an affidavit by Cyril Nicholson, made on 25 June 2002. Mr Nicholson attended for cross-examination. The applicant further relies upon a report by Dr Dale Sharp and notes of Dr Angela Yates that were previously put in evidence. The respondents objected to the former but I accepted the report as proof only of the applicant’s attendance at counselling.
The applicant, in her affidavit, deposes that following an interview by Mr Kirkland she was engaged by him, without any limitation being placed on the period of her engagement. Her remuneration was based on a proportion of takings of the taxi during the period she drove it. She says she made between $350 and $450 per week. When the applicant commenced work, Mrs Kirkland was in Sydney receiving medical treatment in hospital and she did not meet her until some time in December.
The applicant deposes that her relationship with Mr Kirkland was initially normal, although there were a number of incidents which, looking back, the applicant is now concerned about, in the light of subsequent events. No particulars are given of those incidents. The applicant deposes that the first incident of real significant occurred on 2 January 2000. She deposes that on that day when she arrived at the respondents’ office, attached to their home, at approximately 1.00pm in order to commence her driving shift she found that the seat in the taxi was too far back. Apparently, the taxi had been driven by the respondents’ son Leslie. Leslie Kirkland made a joke about the seat always being too far forward when he drove the taxi. Mrs Kirkland was sitting in an easy chair in the office and Mr Kirkland was sitting on a swivel chair in the office. The applicant deposes that she was standing near Mr Kirkland when he grabbed her from behind around her inner thighs and said words to the effect:
“Oh, it’s because of those little duck legs.”
The applicant says that Mr Kirkland’s hands came up close to her vagina and that she jumped away. She deposes that she took a bag of money for the taxi and keys and left the office immediately. She deposes that she had acquired the nickname “duck legs” due to her short legs.
Following this alleged incident the applicant says that she commenced keeping a journal of incidents which gave her concern. Her journal was put in evidence. She records events between the period 3 January 2000 to 8 January 2000. The applicant deposes that the following events took place:
a)on Monday, 3 January 2002 at approximately 4.00 pm Mr Kirkland came into his office while the applicant was there to collect her float for the taxi. As she was walking out of the office she bent down to pick up her personal bag from a chair and Mr Kirkland touched her behind. He allegedly said, “if you’re going to stick it out at me I am going to hit it”;
b)on the morning of Sunday, 9 January 2000 at approximately 7.30am following the completion of her driving shift the applicant entered the office and found Mr Kirkland there seated at a desk. The applicant asked Mr Kirkland to count her takings and to put the entry into a cash in book. She deposes that Mr Kirkland by words and facial gestures made a sexual reference along the lines “Oh, I would like to get it in there”.
A further major incident allegedly occurred on 15 January 2000 when the applicant returned to the office to deposit her cash takings at the end of her driving shift. She met Mrs Kirkland to count the takings and placed her personal bag on the easy chair in the office and went to stand next to Mrs Kirkland at the desk as she counted the money. The applicant deposes that Mr Kirkland entered the office through the door connecting the office to the respondents’ residence. Mr Kirkland allegedly invited the applicant to stay to help celebrate Mrs Kirkland’s 60th birthday and commented that other persons were in the home for a bit of a party. The applicant then alleges that the following conversation took place:
Mr Kirkland: “And when is your birthday?”
Mrs Wattle: “My birthday is not any concern to anyone but me. You don’t need to worry about when my birthday is. It’s not your business”.
Mr Kirkland: “I know one way we can find out your birthday. It will be on your licence”.
He then made a move towards my bag on the easy chair. I was closer, and grabbed my bag and held it close to my body, facing away from Mr Kirkland. I was embarrassed by the thought of him going through my bag.
Mr Kirkland then came up and stood behind me. He put his arms around me and placed his right arm on my left breast. Mrs Kirkland said in a firm voice: “Leave her alone. Get off her Raymond”.
The applicant deposes that notwithstanding this incident she stayed to eat some cake and to have a drink. She says she was handed a Coke but that when she drank some of it she realised that it had alcohol in it and as she did not drink alcohol she drank no more of it. She left after finishing her piece of cake and wishing Mrs Kirkland a happy birthday.
The applicant further deposes that an incident occurred on the morning of Monday, 17 January when she dropped the taxi cab off. She alleges that she met Mr Kirkland in the office and mentioned having received at $10 tip during the night. She deposes that Mr Kirkland stared at her breasts and said, “I would love a tip from you”. She alleges that Mr Kirkland licked his lips as he said this and rolled his eyes.
The applicant then deposes that she was becoming stressed and anxious about the behaviour of Mr Kirkland. She deposes that a further incident took place on 2 February 2000 when she was required to see Mr Kirkland at a furniture shop he ran at Market Street in Mudgee, in order to discuss a complaint of overcharging that had been received from a customer. She deposes that Mr Kirkland had simply asked her to take more care in response to the complaint and then had made comments in the nature of sexual innuendo related to the applicant’s sexual activities. The applicant deposes to more anxiety and distress leading to her seeking advice from the chamber magistrate at the Mudgee Local Court on 7 February 2000 and also to her consulting Dr Yates on 8 February 2000. The applicant obtained a medical certificate from Dr Yates stating that she was unfit to work between 7 February 2000 and 25 February 2000. The doctor also referred the applicant to a counsellor, Dale Sharpe. The medical certificate is in evidence.
The applicant deposes that at around midday on 8 February 2000 she attended the respondents’ office and gave Mrs Kirkland her medical certificate at which time Mrs Kirkland orally dismissed the applicant. The alleged conversation is as follows:
Mrs Wattle: “I have come in to give you my doctor’s certificate. I have been to see her this morning, and she says that I am suffering from stress and asthma at the moment. She has given me from yesterday until the 25th of February off”.
Mrs Kirkland: “Don’t worry about it Margaret. As far as I am concerned, you are off for good. If you’ve got anything to say, go and see Ray”.
The applicant deposes that, apart from the alleged overcharging incident, no work problems had been discussed with her.
The applicant deposes that she consulted the Human Rights and Equal Opportunity Commission about the possibility of making a complaint on the same day. She also made an appointment to see Dale Sharpe and made a statement to the New South Wales Police. The applicant commenced a series of counselling interviews with Dale Sharpe and Dr Yates prescribed for her an anti-depressant. The applicant continued taking the anti-depressed and attending counselling sessions for approximately 10 months. She was unemployed over this period but received a disability support pension of $420 per fortnight.
John Hallett, in his affidavit, deposes that he is a friend of the applicant who was staying at her home for part of each week in January 2000. He deposes that there was a change to her demeanour in January 2000 and that she became distressed and withdrawn. He deposes that on 6 February 2000 the applicant was unwilling or unable to get out of bed and appeared miserable. She said that she could not work that day. He deposes to observing continual depression of the applicant during the year 2000. They did not discuss the allegations of sexual harassment.
Mr Nicholson, in his affidavit, deposes that when he was employed by the respondents there was no mention of his engagement being for an initial period of three months. He also refuted a suggestion that, as at 17 January 200, there was no system of handover of float bags between drivers.
The respondents’ case
The respondents rely upon the affidavit of Raymond Kirkland, filed on 11 June 2002, the affidavit of Daphne Geraldine Kirkland, filed on 12 June 2002, the affidavit of Leslie Andrew Kirkland, filed on 27 June 2002 and the affidavit of Allan George McIntosh, made on 17 June 2002 and filed in court on 2 July 2002. The respondents further relied upon medical records pertaining to the applicant and their response to the application filed previously.
In his affidavit Mr Raymond Kirkland deposes that he is a co-director of the company Kirk’s Enterprises Pty Limited which operates a tyre dealership, a second hand shop and a removals business. His wife Daphne G Kirkland is the manager of a business known as Kirk’s Radio Cab which she owns jointly with Mr Kirkland. Mr Kirkland deposes that while he is engaged generally with his other businesses he assists his wife with the taxi cab business occasionally, although the operation of the business is generally left to her.
Following the placing of an advertisement in October or November 1999 for a casual driver on day and night shifts for the taxi business Mrs Kirkland was hospitalised for treatment of a heart condition and Mr Kirkland temporarily took over the running of the business until 1 December 1999. Mr Kirkland deposes that after interviewing the applicant he engaged her for a three month trial period, to which the applicant agreed. Mr Kirkland deposes that he spoke to the applicant on 29 November 1999, about two days after she commenced driving the taxi cab, about a minor accident which the taxi had been involved in. He says that on 1 December 1999 his wife returned home from hospital and resumed running the business and that consequently he had no further contact with the applicant from 29 November 1999 until 2 January 2000.
Mr Kirkland admits a discussion taking place in the office attached to his home on 2 January 2000 about the position of the seat in the cab. He admits that he, his wife and his son were present. He denies any physical contact with the applicant at that time.
Mr Kirkland denies any contact with the applicant on 3 January 2000 as he was at his business premises in Market Street from 9.00am until 3.30pm.
Mr Kirkland denies any contact with the applicant on 9 January 2000. He deposes that he slept in until about 11.00am.
Mr Kirkland admits contact with the applicant on 15 January 2000 at the time of his wife’s birthday party. He deposes that he asked the applicant when her birth date was and she declined to give it. He says that he said, “It will be on your licence”. He made a move to pick up the applicant’s personal bag, purportedly for the purpose of asking the applicant to take out her licence. He deposes that the applicant said to him, “It’s private property” at which time he left the office and returned to his guests at the party. He says that shortly thereafter the applicant entered the residence and stayed for a short time to have a drink and some cake and then left. He deposes that when she attended the party the applicant stood right beside him and leant on his shoulder with her arm. He further deposes that the applicant asked for a Bacardi and Coke. She was invited to have a second but his wife Daphne said that she had had enough as she was diabetic and had had nothing to eat. He further deposes that at that point his wife escorted the applicant to the front door and thanked her for attending.
Mr Kirkland admits seeing the applicant in the taxi cab office on 16 January 2000 but he asserts that the conversation and contact between them was normal and that there was no conversation regarding any tips or anything else in relation to the previous night’s shift. Mr Kirkland denied having any contact with the applicant on 2 February 2000. He deposes that on 7 February 2000 Mr Hallett telephoned him to say that the applicant would be unable to drive the taxi that day because she was sick.
Mr Kirkland deposes that there was a conversation between him and the applicant about a tip at 3.00am on a Friday in mid January. He deposes that he and his wife were in bed and the applicant entered their bedroom and referred to getting at $10 tip. He deposes that the applicant queried whether the money would be put in with the other takings and the applicant responded that she wished to keep it herself. He denies saying, “I would love a tip from you”.
Mr Kirkland deposes that on 8 February 2000 he had no contact with the applicant. He further deposes that “a number of people” who were clients of the taxi cab business had made complaints regarding the applicant’s driving and her demeanour towards them. He deposes that a number of fares had been lost and that, following discussion with him, his wife had agreed that the engagement of the applicant should be terminated.
In her affidavit Mrs Kirkland provides corroboration to the evidence of her husband. She deposes that it is she who runs the taxi cab business and that the applicant, along with a number of other drivers, was a bailee of the taxi cab operated by the business under a contract of bailment. She deposes that between 1 December 1999 and 7 February 2000 the management of the taxi cab business was in her hands.
Mrs Kirkland gives evidence in her affidavit about the alleged incidents on 2 January 2000, 3 January 2000 and 8 January 2000 in essentially the same terms as Mr Kirkland. She further deposes that on 9 January 2000, at about 8.00am, she was awoken by the applicant coming into the house and gave to the applicant her share of the week's takings from the week. She deposes that there was no contact between the applicant and her husband at that time as her husband remained in bed until approximately 11.00am.
Mrs Kirkland gives evidence essentially in the same terms as her husband in relation to the alleged incident on 15 January 2000. She also gives evidence in the same terms as her husband about the alleged conversation over the $10 tip. She denies any knowledge of any contact between her husband and the applicant on 2 February 2000. She corroborates his movements on that day. She gives evidence in the same terms as her husband about Mr Hallett reporting the applicant as being sick on 7 February 2000. She deposes that the following are the circumstances of the applicant’s dismissal:
“On 8 February 2000 at about 10.45am, I was still not feeling well and I was in bed when I saw a shadow on the wall. I said, “Who’s there?”. The applicant said, ‘Me’. Notwithstanding, the applicant came into the house, to my bedroom and said to me, ‘There’s a doctor’s certificate. I am off until the end of February’. I then said to her, “Don’t worry, you won’t be back. If you need any more information, go see Ray”.
Mrs Kirkland deposes that the applicant was dismissed because of complaints about her driving and her demeanour towards customers which had contributed to a loss of trade. She also deposes that she was concerned that the applicant had finished her night shift early on the night of 6/7 February 2000. She asserts that this early completion of the shift was without any reason or explanation, although she acknowledges that an explanation was provided by Mr Hallett when he rang the following morning at 7.00am.
Mrs Kirkland also deposes that the applicant was having emotional difficulties due to the breakdown of her former marriage in the period up to 7 February 2000 and that her former husband had taken out an apprehended domestic violence order against her.
Mr Leslie Kirkland, in his affidavit made on 18 June 2002, deposes that the incident which allegedly occurred on 2 January 2000 did not occur as alleged by the applicant. He deposes that he did not see any physical contact occur between his father and the applicant at that time. He also deposes that the applicant participated in the birthday celebrations on 15 January 2001.
Allan George McIntosh deposes that he is the applicant’s former husband and that incidents had occurred between them resulting in apprehended domestic violence orders being unsuccessfully sought by the applicant and successfully sought by him.
Consideration and findings
As noted above this application is brought principally under sections 5, 14, 16, 28A and 28B of the SDA. Section 5 defines sex discrimination. The section provides that, for the purposes of the Act, a person discriminates against another on the ground of sex of the aggrieved person if, by reason of:
a)the sex of the aggrieved person;
b)a characteristic that pertains generally to persons of the sex of the aggrieved person; or
c)a characteristic that is generally imputed to persons of the sex of the aggrieved person; the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of the opposite sex.
Section 14 of the SDA provides that it is unlawful for an employer to discriminate against a person on the ground of the person’s sex, relevantly, by subjecting the employee to any detriment other than dismissal, denial of promotion or in relation to the terms and conditions of employment.
Section 16 of the SDA relevantly makes the same provisions in relation to contract workers.
Section 28A defines sexual harassment. The section provides as follows:
(1) For the purposes of this Division, a person sexually harasses another person (the person harassed ) if:
(a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or
(b) engages in other unwelcome conduct of a sexual nature in relation to the person harassed, in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimidated.
(2) In this section:
conduct of a sexual nature includes making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing.
Section 28B relevantly provides that it is unlawful for a person to sexually harass an employee or contract worker of the person.
By the time the hearing of this matter concluded it was not disputed that the applicant was engaged by the respondents under a contract of bailment, not as an employee. It was also not disputed that the respondents operated the taxi cab business as a partnership. The dispute between the parties centres on the factual allegations of harassment and the circumstances of the termination of the applicant’s contract.
It is generally considered (Watkins v Fuyer & Anor (1995) EOC ¶92‑667) that allegations of this type should be proved to the Briginshaw standard (Briginshaw v Briginshaw (1938) 60 CLR 336). I have applied the standard on the balance of probabilities in coming to my conclusions.
In her oral evidence the applicant disputed assertions by Mr and Mrs Kirkland that she had displayed affection for Mr Kirkland at the birthday party on 15 January 2000. She denied allegations by Mrs Kirkland that she had worked since 8 February 2000, she denied having a nervous breakdown at the time of the break-up of her marriage. She denies a further suggestion by Mrs Kirkland that she had contemplated lying in response to the apprehended violence order application made by her husband. She denied asking for a Bacardi and Coke at the birthday party.
Under cross-examination the applicant was tested in great detail and at great length on her evidence. She was pressed on details of dates and times. The applicant was resolute in maintaining the details set out in her affidavit currently relied upon. She admitted modifying her evidence on some elements of detail in the light of physical evidence now available about her work times driving the taxi. The physical evidence is in terms of fuel charge dockets. Mr Williams suggested to the applicant that key elements of her affidavit in which she alleged physical contact between her and Mr Kirkland and unacceptable comments made by Mr Kirkland were false. The applicant vigorously resisted those suggestions. She was very firm in rejecting suggestions of untruthfulness. She was also very firm in rejecting the terms of conversations suggested by Mr and Mrs Kirkland in their affidavits.
The applicant did make some admissions. She admitted that she had had three accidents while driving the taxi over a three month period. She admitted that she had missed one of her counselling appointments in 2000 when she took a short trip to Queensland. She admitted over-dramatising the statement she made to the police about the incident which allegedly occurred on 15 January 2000.
Mr Williams suggested to the applicant that the entries in her journal had been contrived in order to bolster her case. The applicant denied that suggestion. She stated that the journal was not a diary in the strict sense in that entries were not made on every day but that, at least in relation to the alleged incidents referred to in the journal, the entries were made contemporaneously, either on the day of the incident or at least on the day following. In her journal, the applicant refers to the alleged incidents on 2, 3, 15 and 17 January 2000 and 2 and 8 February 2000. She also refers to having had three accidents in the taxi cab in an entry dated 14 January 2000. That entry precedes the entries dealing with the alleged harassment and bears the notation, “Oops, I must be stressed – I’ve put these in the wrong place. Didn’t see next page”. The next page is an entry for 26 December 1999. The preceding entry is for 13 December 1999 and it is plausible that the applicant made a simple mistake in her placement of the entry for 14 January 2000. It is also possible that the applicant put the entry for 14 January 2000 where she did so as not to draw attention to it. The misplacement of the entry for that day creates no implication about the accuracy or contemporaneousness of the other entries for January and February 2000.
The applicant presented as a wary but honest witness. It is apparent that the quality of her evidence has improved markedly since the first trial of this matter. She has had assistance in preparing her affidavit and she has had the benefit of reviewing documentary evidence in order to more clearly establish times and dates. She has provided substantially more detail than in the first proceedings before Raphael FM in relation to the alleged incidents of harassment and in relation to her dismissal.
The evidence submitted on behalf of the respondents is also more detailed than at the time of the first trial. The affidavits of Mr and Mrs Kirkland are remarkable in their similarity. Under cross-examination they both denied discussing with each other their evidence. That is difficult to accept, given the near identical terms used in much of their affidavits, especially regarding key events. It would be expected that by this stage the parties would be clear and firm in their evidence. That proved to be the case with the applicant. It also proved to be the case with Mrs Kirkland, who maintained her evidence firmly under cross-examination. She did, however, make some admissions. She admitted that at the birthday party the spirits that were given to the applicant were poured from a Jim Beam bottle. Her evidence on affidavit was that the applicant had asked for a Bacardi and Coke. She admitted that notwithstanding that she was responsible for the running of the taxi business when she returned home from hospital, because she was still recuperating her husband assisted her in order to relieve her of the pressure of the business. She asserted that the conversation concerning the $10 tip took place just after Christmas on a Friday night.
Mrs Kirkland presented as a physically frail but mentally alert woman who is unsophisticated and loyal to her husband. While she maintained the details of her affidavit evidence under cross-examination she became frustrated with probing questions on matters of detail and gave the impression that those matters of detail were not particularly important to her. I found Mrs Kirkland to be, overall, a less reliable witness than the applicant.
The cross-examination of Mr Kirkland was revealing. He admitted that his statement in paragraph 7 of his affidavit that there had been no contact between him and the applicant between 29 November 1999 and 2 January 2000 was incorrect, in that there had been incidental contact on a number of occasions. He admitted working in the office for some time over this period. He admitted that paragraph 9 of his affidavit was incorrect, in that he was not at his business premises at 34 Market Street on that day as he had claimed. He admitted that he was probably at home or in the taxi business office on that day as it was a public holiday. He admitted that he may have had contact with the applicant on that day. He had problems remembering details although his affidavit evidence is highly specific. He suggested that he might be suffering the early effects of Alzheimer’s disease. He nevertheless insisted that it was a Bacardi and Coke that the applicant was offered at the birthday party. He could not recall precisely when the conversation about the $10 tip occurred. He stated, however, that the conversation took place at 3.00pm on a Friday not at 3.00am as alleged by him and Mrs Kirkland on affidavit. He maintained that it was an afternoon, not an early morning conversation. Mr Kirkland also accepted that paragraph 12 of his affidavit was wrong in referring to shared cash bags. He conceded that it was possible that he had contact with the applicant on the morning of 17 January 2000.
Mr Kirkland also conceded that paragraphs 13 and 18 of his affidavit could be factually incorrect.
Mr Kirkland appeared hesitant and uncertain in giving his evidence. His admissions under cross-examination put his evidence into conflict with that of his wife. Although he denied having discussed his evidence with his wife he appeared unfamiliar with the factual statements contained in his affidavit which are the same as those in his wife’s affidavit. I find that little reliance can be placed on the recollections of Mr Kirkland on any issues of detail.
I have decided that the contest of evidence between the applicant and the respondents should be resolved in favour of the applicant. First, I was impressed with the demeanour of the applicant when compared to that of the respondents at trial. The applicant’s evidence was internally consistent and she resisted stoutly attacks upon it under cross-examination. The evidence of the applicant in the proceedings before me corrected admitted factual errors in her evidence in the original proceedings before Raphael FM. Secondly, the evidence of the applicant is supported by her journal. Mr Williams was unsuccessful in his attempts to destroy the credibility of the journal on the basis that the relevant entries were a recent invention. The respondents suggest that the applicant invented her allegations of sexual harassment in retaliation for her termination. I reject that contention. Dr Yates’ clinical notes show that the applicant complained about sexual harassment by Mr Kirkland before her contract was terminated. In addition, it is material that the respondents’ evidence confirms that the applicant received no prior warning of her impending dismissal.
In stark contrast to the applicant’s evidence, the evidence of the respondents has the appearance of having been constructed since the hearing before Raphael FM in an attempt to bolster their defence. The terms of the affidavits of the respondents are remarkably similar. The assertions of the respondents that they have not discussed their evidence lacks credibility. In addition, Mr Kirkland abandoned much of his affidavit under cross-examination.
The evidence of Mr Leslie Kirkland and Mr McIntosh does not assist the respondents. Under cross-examination Mr Leslie Kirkland accepted that his affidavit was identical with an earlier affidavit he had sworn for the purposes of the first hearing before Raphael FM. He also accepted that he had no recollection of the applicant standing close to or touching his father at his mother’s birthday party. He had no recollection of his father ever having referred to the applicant as “duck legs”.
Mr Leslie Kirkland was not in a position to observe the relevant incidents alleged, with the exception of the incident alleged to have occurred on 2 January 2000. It is to be expected that in relation to the incident on 2 January 2000 Mr Leslie Kirkland would seek to corroborate the accounts given by his parents. I give no weight to his evidence in respect of that incident. His evidence about the events of 15 January 2000 was not illuminating and provided no support to the accounts now given by the respondents.
The evidence of Mr McIntosh does not go to anything material between the parties and was introduced in an attempt to corroborate the evidence of Mrs Kirkland concerning a conversation she is alleged to have had with Ms Wattle about apprehended domestic violence proceedings between Ms Wattle and Mr McIntosh. That evidence was only introduced by Mrs Kirkland in an attempt to attack the character of Ms Wattle. I find that the evidence is irrelevant.
Having resolved the conflict of evidence between the applicant and the respondents in favour of the applicant, I make the following findings of fact. On 2 January 2000 Mr Kirkland put his hands on the upper inner thighs of the applicant. The applicant felt that this physical contact was unwarranted and uncomfortably close to her vagina. The applicant’s evidence is consistent with her personal journal entry. In addition, Mr Kirkland admitted being in a playful mood on that day and using the term “duck legs” towards the applicant. Mr Kirkland may not have intended anything sexual by his action but it made the applicant uncomfortable in that she regarded it as sexual conduct.
On 3 January 2000 Mr Kirkland touched the applicant on the bottom as she bent down and said, “If you are going to stick it out at me, I am going to hit it.” In respect of this issue the applicant’s evidence is consistent with her journal entry and her statement to the police. The accounts of the respondents in contrast are internally inconsistent and the account of Mr Kirkland was shown to have been factually inaccurate under cross-examination.
On 9 January 2000 Mr Kirkland gave the applicant what she describes as “a lecherous look” and said, Oh, I would like to get it in there”, which the applicant took to be a sexual reference. Once again, the applicant’s evidence is supported by her personal journal entry and her statement to the police. Under cross-examination, the account of the respondents was shown to be factually unreliable.
On 15 January 2000 Mr Kirkland approached the applicant and put his arms around her, placing his right hand on her left breast on the pretext of seeking to find Ms Wattle’s driving licence in her personal bag. The applicant’s evidence concerning this incident is consistent with her journal entry but not consistent with her statement to the police, which she now concedes was exaggerated. I find that the account given by the respondents of the events on this day to be a recent invention. Their account of the applicant standing close to Mr Kirkland and putting her arm on his shoulder at the birthday party following the alleged incident of harassment was not supported by the evidence of Mr Leslie Kirkland. The respondents’ evidence of the conduct of the applicant at the birthday party following the alleged incident of harassment appeared for the first time at the trial before me. With the exception of this occasion Mr Kirkland denied any incident of physical contact between himself and Ms Wattle. It is entirely implausible that the applicant would show affection for Mr Kirkland at the birthday party following the incident with Mr Kirkland and her handbag in the office. Mr and Mrs Kirkland admit that Mr Kirkland had made a move for Ms Wattle’s handbag in an attempt to get her driver’s licence to verify her birth date. I find that in the course of so doing Mr Kirkland put his arms around Ms Wattle and that his right hand came into contact with Ms Wattle’s left breast. Ms Wattle regarded this contact as deliberate. I believe her.
On 17 January 2000 Mr Kirkland stared at the applicant’s breasts and said, I would love a tip from you. Mr Kirkland emphasised this by facial gestures. The applicant took the comment to be of a sexual nature. The respondents’ assertion that their version of this incident occurred at 3.00 am in their bedroom is highly implausible. Mr Kirkland abandoned that story under cross-examination. In addition, Mr and Mrs Kirkland are at odds concerning the date of the alleged incident. Ms Wattle’s account gains support from the evidence of Mr Nicholson who at least establishes the plausibility of there being contact between Ms Wattle and Mr Kirkland on the morning of 17 January 2000.
On 2 February 2000 Mr Kirkland made a further sexual reference to the applicant, alluding to her sexual activities both then and in the past. The applicant’s evidence is consistent with her personal journal entry. The evidence of Mr Kirkland on affidavit in relation to this alleged incident was contradicted by him under cross-examination.
Each of the above incidents satisfies the description of sexual harassment in s.28A of the SDA. It was conduct of a sexual nature in relation to the applicant in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would have been offended, humiliated or intimidated. Mr Kirkland touched the applicant intimately. He made sexual comments to her. His conduct was clearly unwelcome. In addition, the conduct, constituting as it does sexual harassment for the purposes of the SDA, also establishes unlawful discrimination on the grounds of sex against the applicant: Elliott v Nanda & Commonwealth [2001] FCA 418 per Moore J at paragraphs 125-130; Hall v A & A Sheiban Pty Ltd (1988) 20 FCR 217 per French J at pp 274-277. I accept Mr Hillard’s submission that Mr Kirkland’s behaviour was exclusively towards the applicant as a female worker. There was no similar conduct directed towards male workers. The applicant was singled out for this conduct on account of her sex. Accordingly, she was treated less favourably on the ground of her sex by the respondents. Mr Kirkland is liable for the sexual harassment and both respondents are liable as principals to the contract of bailment with the applicant for the sex discrimination against the applicant. The liability of the respondents in relation to the sex discrimination is both joint and several under s.16 of the SDA. The conduct of Mr Kirkland was unwelcome, offensive, distressing and humiliating to the applicant and thereby imposed a detriment on her within the meaning of s.16(d) of the SDA: Elliott v Nanda & Commonwealth at paragraph 130.
I do not accept Mr Hillard’s submission that the applicant was also a victim of disability discrimination. I accept that it is open to the applicant to add this claim based upon the same facts as support the complaint of sexual harassment and sex discrimination: Charles v Fuji Xerox Australia Pty Ltd [2000] FCA 1531 per Katz J at paragraph 137. However, I do not accept that the claim can be sustained on the facts. The claim is based on the assertion that the applicant was dismissed by Mrs Kirkland on presentation of a sick leave certificate, evidencing the existence of a disability at that time. However, I find from the evidence of Mrs Kirkland that she had already made up her mind to terminate the applicant’s contract before the presentation of her sick leave certificate. Mrs Kirkland has, at various times, given various explanations for her decision to terminate the contract of bailment. Those reasons have included alleged overcharging of customers, “general attitude”, unparticularised complaints from customers regarding the applicant’s manner of driving and her demeanour, unparticularised loss of long term customers and future trade, reckless driving, unparticularised complaints from customers that they did not feel safe, three accidents involving the taxi driven by the applicant, ending a shift early without explanation and late notice of inability to do a shift. In addition, Mrs Kirkland stated under cross-examination that the termination of the contract was because she regarded the applicant as unreliable. There is evidence of only the first of the three car accidents and the alleged overcharging being discussed with the applicant prior to the termination of her contract. That discussion appears to have been superficial.
The respondents have claimed that the applicant was, like other people who drove for them, initially working on three months probation but that assertion was contradicted by the applicant, Mr Nicholson and Mr Hallett and I reject it. The multiplicity of reasons advanced by Mrs Kirkland at various times for her termination of the applicant’s contract suggests that either she was uncertain about what the main reason was or that she does not want to reveal it. I think the latter is the more likely. It is significant that Mrs Kirkland offered no explanation for the termination of the contract when she told the applicant that she had been dismissed. Significantly, she told the applicant to “Go see Ray” for an explanation. In my view, Mrs Kirkland had become concerned about the unhealthy interest Mr Kirkland was showing in Ms Wattle and had decided to remove the source of temptation. In so doing she discriminated against the applicant by reason of her sex, contrary to s.16(b) of the SDA. The respondents are jointly and severally liable for that discrimination.
Damages
The applicant claims both economic and non-economic loss. Damages should be assessed on the basis of the torts based principle of putting the applicant in the position she would have been in if the wrong against her had not been committed. If the applicant had not been harassed and discriminated against, her contract of bailment would not have been terminated when it was. The applicant earned between $350 to $450 per week gross from her taxi driving. The applicant claims the difference between that income and her disability support pension which she received following her dismissal in the sum of $210 per week. The applicant claims economic loss for the period from 8 February 2000 until 14 November 2000 (40 weeks) in the amount of $190 per week (being the figure of an average of $400 per week, less $210). The applicant’s claim for economic loss is therefore $7,600. I accept that claim. In particular, I accept that until 14 November 2000 the applicant had not regained sufficient composure and confidence in order to undertake alternative employment. The respondents have asserted, but failed to prove, that the applicant worked during this period. She took medication and underwent counselling for this period and was unable to work.
The applicant also claims $15,000 for non-economic loss. I accept the applicant’s evidence and that of Mr Hallett as establishing that the applicant was severely affected by the harassment. The adverse effects of the harassment were exacerbated by the summary termination of the contract of bailment by Mrs Kirkland. The harassment was serious, repeated and prolonged. It was exacerbated by the punishment of termination. I accept Mr Hillard’s submission that an award of $15,000 would be appropriate, bearing in mind the seriousness of the conduct of the respondents and its severe impact upon the applicant. In addition, it is appropriate that the Court recognise the principle that general damages should not be so low as to diminish respect for or trivialise the public policy implicit in human rights legislation.
In addition, the applicant is entitled to and has sought interest up to judgment. The applicant is entitled to interest up to judgment pursuant to s.76(3) of the Federal Magistrates Act 1999 (Cth). No rate of interest is prescribed and the fixing of an appropriate rate is within the discretion of the Court. The practice of the Federal Court is to apply the same rate of interest that would be applied in the relevant State or Territory Court, rather than the rate that is prescribed in the Court rules for post judgment interest: Namol Pty Ltd & Anor v A U Baulderstone Pty Ltd & Ors (1993) 119 ALR 187. In my opinion, the Court should follow the same general practice as the Federal Court. However, human rights proceedings under Commonwealth legislation are only heard in this Court and the Federal Court and there is therefore no relevant State court. The prescribed rate of post-judgment interest is currently 10.5 per cent. When, as now, interest rates are rising (albeit slowly and moderately) the rate of pre-judgment interest should be lower than the rate of post-judgment interest, because it relates to an earlier time frame. I will apply a rate of 9.5 per cent. The applicant is entitled to pre-judgment interest from the date on which her cause of action arose. Her cause of action was complete by the date of her dismissal on 8 February 2000. Accordingly, I will allow pre-judgment interest in the sum of $5,435 up to and including 21 August 2002. Pursuant to s.76(3)(c)(ii) of the Federal Magistrates Act 1999 (Cth) pre-judgment interest will continue to accrue until the orders I am making today are entered.
I will hear the parties as to costs.
I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 21 August 2002
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