X v Y & Anor
[2000] NSWADT 122
•09/01/2000
CITATION: X -v- Y & anor [2000] NSWADT 122 DIVISION: Equal Opportunity Division PARTIES: APPLICANT
XFIRST RESPONDENT
SECOND RESPONDENT
Y
ZFILE NUMBER: 991030 HEARING DATES: 23, 24 & 25/02/2000; 17 & 18/04/2000; 17 & 18/05/2000 SUBMISSIONS CLOSED: 06/05/2000 DATE OF DECISION:
09/01/2000BEFORE: 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: REPRESENTATION: APPLICANT
SECOND RESPONDENT
A Healey, barrister
FIRST RESPONDENT
R St John QC with K Roser, barristers
No appearanceORDERS: (1) The Second Respondent, within seven days of receiving written advice from Mrs X’s solicitors of this direction, to send to Mrs X 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 X care of the address of her solicitor ; (2) The First Respondent and the Second Respondent pay to Mrs X an amount of $16,710.00 ; (3) The liability of the First and Second Respondents to pay the amount of $16,710.00 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 $16,710.00 comprises the following awards: (i) $12,000.00 for general damages; (ii) $1,300.00 for loss of earnings; and (iii) $3,410.00 for medical treatment ; (5) Mrs X 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 an 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.
Background
1 This was an enquiry into a complaint of sexual harassment of the Applicant by the Second Respondent during the Applicant’s periods of employment with the First Respondent, at “the Motel”.
2 The hearing of the enquiry was conducted jointly with the hearing of an enquiry into a complaint by Mrs V of sexual harassment by the Second Respondent during the period of Mrs V’s employment with the First Respondent at the Motel.
3 A number of common factors applied to the two complaints. The common issues have been covered in the decision of the Tribunal in relation to the complaint of Mrs V and will not be repeated in this decision except where necessary for continuity or completeness.
History of the complaint
4 Mrs X was employed at the Motel as a waitress in the restaurant from March 1996 to September 1996 and from December 1996 to January 1997. Part of her early period of employment overlapped with the period of employment of Mrs V, ie, for the period from March 1996 to 25 July 1996 (the date on which Mrs V resigned her employment).
5 Despite the common period of employment, the two ladies did not know each other. This is explained by Mrs V being employed as a house-maid working in the Motel bedrooms and Mrs X working in the evenings in the restaurant.
6 Mrs X first became aware of Mr Z’s treatment of Mrs V in March 1997 after Mrs X had resigned from her employment. Mrs V phoned Mrs X and introduced herself and told Mrs X about her experiences with Mr Z. The ladies realised that they had been subjected to similar treatment by Mr Z. At Mrs V’s request, Mrs X spoke to Mrs V’s solicitor and with the help of her mother, Mrs X prepared a statement setting out her experiences of Mr Z’s conduct towards her. Mrs X gave that statement to Mrs V’s solicitor. A copy of the statement was included in the material before the Tribunal in Mrs V’s enquiry. In this enquiry, as a result of her contact with Mrs V’s solicitor, Mrs X lodged a formal complaint with the Anti-Discrimination Board (“the Board”) on 27 June 1998.
7 Mrs X related to one earlier incident of a reference to Mrs V, when Mr Z in July or August 1996 said to Mrs X:
- “There has been a woman working here who has thrown around some allegations about me. If you hear anything don’t believe it. It is all lies.”
8 Mrs X stated that she had no idea what Mr Z was talking about. Mrs X asked some of the head staff at the Motel about Mr Z’s remarks and she was told:
- “Don’t worry about it. It’s none of your business. Keep it quiet.”
9 Later Mrs X was told:
- “There’s a court case going on.”
10 This was a reference to the application by Mrs V for an Apprehended Violence Order (AVO) against Mr Z. Mrs X stated that at that time she did not connect these references to Mrs V.
The complaint of Mrs X
11 Mrs X is aged 28 years and is the mother of 5 children. She stated that at the beginning of her employment she was on friendly terms with Mr and Mrs Z. This led her to accept that Mr Z’s actions at that time were either jokes in poor taste or he was just testing the water and they did not cause her real concern.
12 Mrs X stated that often she would find that Mr Z was staring at her with fixed eyes and he would follow her into an empty part of the restaurant and when they were alone he would make comments to the effect:
- “I love you.”, “You are very special.” And “what a shame that we are both married.”
13 These were said in a facetious manner but nevertheless Mrs X stated that she felt extremely uncomfortable.
14 Mrs X explained that it was customary at night after the restaurant was cleared of customers for the staff to have a drink together. On a couple of nights after the chef had left Mr Z said to Mrs X:
- “Can you stay behind?”
15 Mrs X stated that she thought this was to discuss the following days work. During these times when they were alone he would say to her words to the effect:
- “I really care for you.”
“You are very special.”
“I really love you.”
16 After this occurred on a couple of occasions Mrs X made excuses not to stay behind.
17 Mrs X related an incident which occurred in the spa at the Motel. At the end of each working session Mr Z would invite the head waitress and Mrs X to use the spa as a way of unwinding after a busy evening. One night the other waitress and Mrs X decided to take a spa. Mrs X stated that she was surprised that Mr Z joined them. While Mrs X was sitting in the spa she realised that Mr Z had edged closer to her. She stated that he then began to grope the upper part of her legs. Mrs X said that she said nothing as she did not want to make a fuss but she kept moving closer to the other waitress. Mr Z said to Mrs X:
- “Let me massage your feet.”
And Mrs X responded:
- “No thank you.”
18 Towards the end of the period of her first employment, Mrs X relates to a Tuesday night when she was working as the only waitress in the restaurant. Mr Z came to her and led her to a note which he had written on a cigarette packet. He said to Mrs X:
- “Read the note, answer it and then return it to me so I can destroy it.”
19 Mrs X stated that the contents of the note were something like:
- “Have you ever considered having an affair?”
20 Several days later Mr Z gave Mrs X a note which said:
- “I’m serious. You need someone in your life and someone to treat you very special.”
21 She stated that he urged her to reply and she laughed it off. Mrs X said that Mr Z wrote a few more of these notes in similar vain over the months that she was employed. On the occasion when he handed her the cigarette packet with the note on it, Mrs X said that Mr Z also said to her:
- “Marriage should not mean that we are restricted to one partner. We should be allowed to freely have whoever we want and to do whatever we choose.”
22 Mrs X said she replied to Mr Z:
- “I don’t agree with you Z”
23 Mrs X stated that at some stage, the exact date of which she could not remember, she told the head chef about Mr Z and the head chef told Mrs X to:
- “Just kick him in the balls.”
24 Mrs X confided to her husband about Mr Z’s conduct. Her husband wanted Mrs X to leave the job but Mrs X wanted to establish her independence and she thought that she could continue to avoid Mr Z. She stated that she knew that her husband was very concerned for her safety.
25 On 6 September 1996 Mrs X’s husband D committed suicide in horrific circumstances in a shed at their home. This traumatic experience deeply affected Mrs X who ceased her employment at the Motel. Mrs X stated that Mr Z was very generous to her and her family at that time and she and her family were accommodated at the Motel for about 3 days and Mr Z made sure that they were comfortable. Mrs X did not return to work at the Motel until mid-December 1996. During the intervening period Mrs X stated that Mr Z often phoned her and said:
- “Do you think that D's suicide was because of me?”
He also said:
- “Now you do need a man in your life. You know that I will be there for you as a friend or whichever way you want it.”
26 Mrs X said that these remarks made her feel extremely vulnerable because she was alone in a big house in a remote location. In this period Mr Z phoned Mrs X regularly, often twice per day. He would also arrive at her home unannounced at least once or twice a week. He would say to her:
- “If you need company, let me know.” And
“I’m here if you want sex because you really need sex.”
27 When Mrs X returned to the Motel to work in December 1996, she said that she felt that she needed the company of other women and that the women who worked at the Motel were all friendly to her at that time. She also desperately needed income to support herself and her children. Mrs X has stated that Mr Z continued with the same behaviour towards her. On a few occasions he said to her:
- “I would make your life easier if you help me out.”
28 On another occasion he said:
- “I’d really like to see you without any clothes on.”
29 Mrs X spoke to the wife of the local policeman and told her that Mr Z had been making sexual advances to her. At the suggestion of Mrs M, Mrs X spoke to her husband, Mr M, the policeman. Mr M said that he would speak to Mr Z and try to get him to leave Mrs X alone. Mrs X stated that she was too frightened of what Mr Z might do and the policeman told her to let him know if Mrs X changed her mind. Mrs X said that Mr Z’s approaches to her did start to ease off a little from early January 1996 but he continued to bump into her breasts as if by accident and that he followed her continually with his eyes when he was in her vicinity.
30 Mrs X stated that she finally left the employment at the Motel because of Mr Z’s attitude and that she believed that she could have kept working but was unable to cope with the pressure from Mr Z. She gave her resignation to Mrs Z but did not give any reasons for her resignation.
31 Mrs X said that she felt unsafe living in an isolated house and that she decided to sell the house and that she has relocated in the C area. She sought employment in C and in March 1997 she accepted a position as a waitress at the Cafe in C. She worked for one day and then resigned and said she was unable to cope with the return to work. She stated that she has continued her endeavours to return to work although she did not give details of those endeavours. In 1997 Mrs X undertook a General Job Skills Course with TAFE but she has found it hard to motivate herself to pursue employment. She feels that she is still in limbo.
32 In relation to Mr and Mrs W, Mrs X said that she did not make any complaint to them. She was aware that Mr Z was the manager only of the Motel. She did not know the owners’ surname. She recalls one occasion when Mr and Mrs W came into the restaurant when she was working and on that occasion one of the other staff identified Mr and Mrs W to her. Mrs X stated that she did not realise that she could raise any complaint with them and she did not think that they had anything to do with what was happening with Mr Z. Mrs X also stated that she was not aware of the existence of an, Equal Opportunity Policy at the Motel. No such Policy was ever brought to her attention.
Findings of discrimination
33 As it did in the complaint of Mrs V, the Tribunal has had regard to the serious nature of the charge of sexual harassment in considering the evidence. The Tribunal is satisfied that Mrs X has discharged the onus on her to establish on the balance of probability that the second Respondent between March 1996 and September 1996 and between December 1996 and January 1997 engaged in a course of sexually implicit conduct towards Mrs X, at the Motel, and that that course of conduct was unwelcome by her and that despite her making clear to Mr Z that she rejected his conduct, he persisted in harassing her. As he had with Mrs V, Mr Z projected himself as a person in a position to exert authority over Mrs X and the other waitresses at the Motel and he sought to use his position to influence Mrs X to accept his overtures.
34 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. The conduct was directed at Mrs X because she is a female.
35 It follows that Mr Z’s conduct against Mrs X constituted a contravention of Section 24(1)(a) of the Act.
State of Mrs X's health
36 Immediately following her husband’s death, Mrs X attended a Counsellor for a period of 12 months. She told the Counsellor of Mr Z’s conduct. She was not advised that it was appropriate to inform Mr and Mrs W.
37 In April 1999, at the request of her solicitor, Mrs X saw a psychologist. The psychologist reported to the Tribunal that Mrs X had a most traumatic experience as a child and later had traumatic experiences in her relationships with the father of some of her children and with other male associates. The suicide of her husband was a particularly traumatic event in her life. The psychologist reported that Mrs X suffered from severe depression (adjustment disorder with mixed anxiety and depressed mood – chronic) and Post Traumatic Stress Disorder (PTSD). The psychologist reported:
- “The onset of her current symptoms may be the exacerbation of the pre-existing condition. It appears likely that because of her earlier experiences of ….. Mrs X did experience some level of psychological distress from the sexual harassment.”
The psychologist further reported:
- “I assess that the onset of this adjustment disorder (or the exacerbation of PSTD) is a direct result of the harassment which occurred in the work place.”
38 She assessed the elements of the adjustment disorder and the depression mood at a moderate/severe level and she further stated that with treatment Mrs X’s condition would abate to an acceptable level. She considered that her chronic condition requires a period of treatment over 12 months at a cost of $3,410.00. Mrs X in her evidence stated that she was tired of talking about everything and was fed up with everything and that she cannot see how treatment would help her.
39 Mrs X, at the request of the First Respondent, was interviewed by a forensic psychiatrist. He diagnosed Mrs X’s condition as PTSD, in partial remission, chronic personality disorder, not otherwise specified. He considered that the psychologist concentrated too much on the sexual harassment which he considered very minor compared to the other life stresses. He considered that Mr Z’s behaviour caused temporary aggravation of problems affecting Mrs X and that this effect was minimal in terms of the overall stresses during her lifetime and heightened by her husband’s suicide.
40 He however agrees that Mrs X should undergo further treatment from a psychologist or a clinical psychiatrist.
41 The Tribunal finds that Mrs X had pre-existing adverse mental conditions which were exacerbated by the conduct of Mr Z. The Tribunal finds that, for the same reasons expressed in the decision in relation to Mrs V’s complaint. Mrs X is entitled to be compensated for the hurt and humiliation and for the pain and suffering she was caused as a result of the conduct. In addition Mrs X should be compensated for the aggravation of her mental conditions.
The position of the First Respondent
42 The same principles that were applied by the Tribunal to determine the liability of the First Respondent in the matter of the complaint of Mrs V, operate in determining the liability of the First Respondent in this complaint.
43 Mr and Mrs W first became aware of Mrs X’s complaint in August 1997 when Mr W received notification from the Board of Mrs V’s complaint. The notification contained a copy of the Statement which Mrs X had given to Mrs V’s solicitor. At that stage, Mrs X had left her employment at the Motel.
44 Mr W made no attempt to contact Mrs X at that time. He made enquiries of Mr Z who told Mr W that it was nothing and he was just having jokes with her. Mr W knew the details of Mrs X’s allegations and could assess the seriousness of their nature. He asked the head chef about the complaint and was told that she did not think there was much in it. It is not clear from the evidence whether Mr W put to Mr Z or to the head chef the details of Mrs X’s allegations. It is difficult to conceive the either Mr Z or the chef would dismiss the specific allegations so lightly.
45 Mr W stated that he was considering dismissing Mr Z. He said:
- “I’m between a rock and a hard place. If I get rid of him I get rid of his wife who is doing a real good job.”
46 Mr W did not discuss the complaints of either Mrs V or Mrs X with Mrs Z as he said that it was a tender subject with her and it would cause a rift in her family and he did not want to be part of it.
47 The situation was solved for Mr W, as Mr Z resigned “around about Christmas 1997”.
48 Mrs X explained to the Tribunal that she knew Mr Z was the manager and that he was not the owner of the Motel. She knew that Mr W was the owner but she did not know his surname. She stated that she did not know that she could complain to Mr or Mrs W. She also stated that she did not know of an Equal Opportunity Policy at the Motel and that no policy document was shown to her nor was one displayed at the premises.
49 Mrs X stated that she was not aware that she could complain to the Board until she saw Mrs V’s solicitor with her statement in April 1997. She subsequently instructed Mrs V’s solicitor to act for her in making her complaint to the Board, which was lodged on 26 June 1998.
50 The Tribunal is not satisfied that the First Respondent has discharged its onus of establishing on the balance of probability, that the First Respondent did not authorise the actions of Mr Z which contravened the Act, either before or after those acts were done.
51 It follows, by virtue of Section 53 of the Act, that the First Respondent is liable for the discriminatory actions of Mr Z.
52 It follows further that the First Respondent was in breach of Section 25(1)(a) and Section 25(1)(c) of the Act. Reference can be made to the Tribunal’s decision in the complaint of Mrs V for the reasons for the Tribunal’s decision on these matters.
The position of the Second Respondent
53 Also for the reasons expressed in the Tribunal’s decision in the complaint of Mrs V, the Tribunal finds that the Second Respondent caused and permitted the unlawful breach of the Act by the First Respondent.
54 As a consequence, the Tribunal finds that the First Respondent and the Second Respondent are jointly and severally liable for the unlawful discriminatory conduct of Mr Z.
The remedies
55 The Tribunal has found that Mrs X is entitled to be compensated to the extent referred to earlier.
56 The Tribunal assesses an appropriate award of general damages for the hurt and humiliation and the pain and suffering and consequent aggravation of the mental conditions of Mrs X at $12,000.00.
57 The Tribunal considers that Mrs X would benefit from the treatment recommended by her psychologist and Mrs X should undertake that treatment at the cost of the Respondents. The cost of the treatment is assessed, according to the psychologist’s estimate, at $3,410.00.
58 For the economic loss suffered by Mrs X, the Tribunal awards a sum of $1,300.00. This amount covers the period of her unemployment from January 1997 to March 1997 when she commenced a job at the Cafe. The Tribunal is not convinced that Mrs X involuntarily left that job. The evidence does not establish that she was unable to work the different time periods required of her after only one day at the cafe. It is more likely, in the view of the Tribunal, that Mrs X was not prepared to do the type of waitress work involved in the job. The Tribunal also is not satisfied that Mrs X has made reasonable efforts to find another job. The evidence is inadequate in this context. Mrs X stated that she was not prepared to take any job and that she wanted a job that would give her greater status that a waitress. While this is a commendable attitude, the Tribunal cannot hold the Respondents accountable for the Applicant’s lack of employment while she considers a position more suitable to her. The Tribunal accordingly makes no award for the future economic loss of Mrs X.
Directions
59 The Tribunal directs:
- (1) The Second Respondent, within seven days of receiving written advice from Mrs X’s solicitors of this direction, to send to Mrs X 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 X care of the address of her solicitor.
(2) The First Respondent and the Second Respondent pay to Mrs X an amount of $16,710.00.
(3) The liability of the First and Second Respondents to pay the amount of $16,710.00 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 $16,710.00 comprises the following awards:
- (i) $12,000.00 for general damages;
(ii) $1,300.00 for loss of earnings; and
(iii) $3,410.00 for medical treatment.
(6) If the parties to this enquiry are unable to agree upon an award and an 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.
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