FEDERAL COURT OF AUSTRALIA
Gilroy v Angelov [2000] FCA 1775
HUMAN RIGHTS – Sex discrimination – alleged sexual harassment by one employee of another – claim by first respondent against employer – sexual harassment found proved – issue as to whether employer had knowledge of inappropriate behaviour – discussion about extent of employer’s obligation (if liability is to be avoided) where employer is not aware of inappropriate behaviour – assessment of damages.
Sex Discrimination Act 1984 ss 14, 28A, 28B, 106.
Boyle v Ishan Ozden and Ors (1986) EOC 92-165, discussed.
LEONI MICHELLE GILROY v BRANKO ANGELOV and CRAIG BOTTING AND TONI BOTTING trading as C & T BOTTING CLEANING COMPANY
No.465 of 2000
WILCOX J
SYDNEY
8 DECEMBER 2000
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IN THE FEDERAL COURT OF AUSTRALIA |
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No.465 of 2000 |
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BETWEEN: |
LEONI MICHELLE GILROY Applicant
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AND: |
BRANKO ANGELOV First Respondent
CRAIG BOTTING AND TONI BOTTING trading as C & T BOTTING CLEANING COMPANY Second Respondent
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DATE OF ORDER: |
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WHERE MADE: |
THE COURT ORDERS THAT:
1. Judgment be entered in favour of the applicant, Leoni Michelle Gilroy, against the second respondents, Craig Botting and Toni Botting, in the sum of twenty four thousand dollars ($24,000).
2. The said respondents pay to the said applicant her costs of the proceeding.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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IN THE FEDERAL COURT OF AUSTRALIA |
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No.465 of 2000 |
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BETWEEN: |
Applicant
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AND: |
First Respondent
CRAIG BOTTING AND TONI BOTTING trading as C & T BOTTING CLEANING COMPANY Second Respondent
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JUDGE: |
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DATE: |
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PLACE: |
REASONS FOR JUDGMENT
1 WILCOX J: The applicant in this case, Leoni Michelle Gilroy, alleges she was subjected to sexual harassment by a fellow-employee, Branko Angelov, the first respondent, during the course of her employment by C & T Botting Cleaning Company (“Botting Co”). Botting Co is a firm owned by Craig Botting and his wife, Toni. They are the second respondents. The firm carries on business as a contract cleaner in the Illawarra region of New South Wales.
2 Mr Angelov left the employment of Botting Co shortly after Ms Gilroy made a complaint about his conduct to the Human Rights and Equal Opportunity Commission. His present whereabouts are not known to Ms Gilroy or, I gather, to either Mr or Mrs Botting. It is thought he may have left Australia. Whether or not that is so, Ms Gilroy was not able to effect service on him of the Application filed in this Court. So she accepts she is unable to obtain relief against him in this proceeding. However, Ms Gilroy presses a claim for damages against her former employers, the partners in Botting Co.
The relevant statutory provisions
3 Ms Gilroy brings this proceeding in reliance on s 14(1) and (2) and s28B(2) of the Sex Discrimination Act 1984.
4 Sub-sections (1) and (2) of s 14 are in this form:
“14.(1) It is unlawful for an employer to discriminate against a person on the ground of the person’s sex, marital status, pregnancy or potential pregnancy:
(a) in the arrangements made for the purpose of determining who should be offered employment;
(b) in determining who should be offered employment; or
(c) in the terms or conditions on which employment is offered.
(2) It is unlawful for an employer to discriminate against an employee on the ground of the employee’s sex, marital status, pregnancy or potential pregnancy:
(a) in the terms or conditions of employment that 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;
(c) by dismissing the employee; or
(d) by subjecting the employee to any other detriment.”
5 Section 28B(2) reads:
“(2) It is unlawful for an employee to sexually harass a fellow employee or a person who is seeking employment with the same employer.”
6 The meaning of sexual harassment is explained by s28A:
“28A(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.”
7 Section 106 of the Sex Discrimination Act is relevant to the liability of the second respondent. It provides:
“106(1) Subject to subsection (2), where an employee or agent of a person does, in connection with the employment of the employee or with the duties of the agent as an agent:
(a) an act that would, if it were done by the person, be unlawful under Division 1 or 2 of Part II (whether or not the act done by the employee or agent is unlawful under Division 1 or 2 of Part II); or
(b) an act that is unlawful under Division 3 of Part II;
this Act applies in relation to that person as if that person had also done the act.
(2) Subsection (1) does not apply in relation to an act of a kind referred to in paragraph (1)(a) or (b) done by an employee or agent of a person if it is established that the person took all reasonable steps to prevent the employee or agent from doing acts of the kind referred to in that paragraph.”
Section 14 is contained in Division 1 of Part II of the Act. Section 28B is in Division 3 of Part II.
8 For reasons I will indicate, I am satisfied Mr Angelov did sexually harass Ms Gilroy. The major issue in the case, in relation to liability, is whether Botting Co has made out the defence provided by subs (2) of s 106.
9 Subsection (2) of s106 raises a question of construction, as to which the parties have put conflicting submissions, but I will defer consideration of that question until after I have dealt with the facts, about which there is substantial dispute.
the applicant’s case
(i) Ms Gilroy’s evidence
10 It is common ground that Ms Gilroy was employed by Botting Co, on a casual basis, to assist in cleaning the premises of Oak Flats Bowling Club. It is also common ground that her employment was brought to an end by Mr Botting, in a conversation that took place outside her home, a small farm located near Oak Flats, shortly after 5am on Sunday, 29 November 1998.
11 However, there is no agreement as to when Ms Gilroy’s employment commenced. She says her first day of work was Friday, 9 October 1998. She fixed this date by reference to a calendar, which was tendered in evidence, on which were marked the number of hours she claimed to have worked at the bowling club each day. Ms Gilroy explained she was told by Mr Botting, in the telephone interview on 8 October during which she was hired, that she would be paid in cash, at the rate of $11 per hour. This was well under the rate for casual work stipulated in the award ($16.25) but no tax was to be deducted.
12 According to Ms Gilroy, Mr Botting told her to write down her hours, because he would not keep a record of them. She said she did this, using for the purpose her kitchen calendar.
13 According to both Mr and Mrs Botting, Ms Gilroy’s first day of work was 9 November 1998. They claimed she was employed by them for only three weeks. Neither Mr or Mrs Botting was able to say how he or she could specify the date of commencement, other than that it was after the publication of an advertisement, on 24 October, inviting applications for employment.
14 It is common ground between the parties that Ms Gilroy was employed on the basis that there would be a two week trial period. It is also common ground that she performed satisfactorily during the trial period; indeed at no time has either Mr or Mrs Botting offered any criticism of Ms Gilroy’s work performance, at any stage of her employment.
15 Ms Gilroy said in evidence that, during the telephone interview, she asked Mr Botting whether there was a uniform and he replied “grey tracksuit pants and a blue polo shirt”. She said she explained she did not have tracksuit pants and asked for time to get them. Mr Botting agreed. As she did not have tracksuit pants, Ms Gilroy said, she wore black pants to work with a blue polo shirt; she put some grey tracksuit pants on lay-by but, because of a comment by Mr Angelov, she never bought them. According to Ms Gilroy, after the telephone interview, Mr Botting never mentioned the uniform. It is common ground that she never had a conversation with Mrs Botting regarding her attire.
16 During the telephone interview, Mr Botting instructed Ms Gilroy that her work would commence at 5.30am on the following day. She would be met outside the bowling club premises by another employee who would supervise her work. This would be Branko Angelov of whom Mr Botting said: “He is ethnic. He speaks abruptly and does not speak good English. Don’t be offended by his abruptness”.
17 Ms Gilroy said in evidence that she had previously worked with people of differing ethnic backgrounds and English language skills and that she thanked Mr Botting, but told him she did not believe she would have any trouble.
18 Ms Gilroy said she met Mr Angelov, as arranged, and completed her first days work (3 1/2 hours) without incident. At the end of the work, Mr Angelov invited her to have a drink with him at the bar.
19 Ms Gilroy said she did not wish to seem rude, so she sat with him at the bar and ordered an orange juice. During conversation at that time, she was surprised to learn from Mr Angelov that he was aware she was a single mother with a teenage daughter. While she was having her drink, Mr Angelov made some sexual comments to the barmaid that Ms Gilroy found offensive. She told Mr Angelov he had a “sick one track mind” and said to him: “What about your wife?” Ms Gilroy said in evidence that Mr Angelov responded:
“My wife is beautiful. She has blonde hair and blonde eyes [sic] but my wife does not give me enough sex.”
Ms Gilroy said she told Mr Angelov she did not expect that sort of talk and left.
20 Ms Gilroy deposed that, virtually every subsequent day, early in the shift, Mr Angelov would ask her: “Are you horny today?” She always answered “no”. Ms Gilroy did not take any action about this. Ms Gilroy explained her inaction by saying she really needed the money the work provided, particularly with Christmas coming up; so she tried to ignore what Mr Angelov said.
21 According to Ms Gilroy, the first major incident occurred about two weeks after she commenced her employment; Ms Gilroy was uncertain about the exact date. She said she started work at 5.30am as usual. She needed to get cleaning materials out of a small storeroom. But Mr Angelov was in the room, getting out the vacuum cleaner. She stood back, waiting for him to emerge, but he called her in. She said she would wait until he came out but he insisted. She said there was no room and he replied: “Come in now. I am the boss while Mr Boss is not here.” Ms Gilroy said she was fearful of what would happen if she did not do as Mr Angelov said. So she went into the storeroom. Mr Angelov touched her from behind and rubbed his front and pelvis area against her back. Mr Angelov said: “If you have tracksuit pants it will be easy for quick sex.” According to Ms Gilroy, Mr Angelov then made sexual thrusting movements on her backside. She said she was angry and pushed Mr Angelov out the door. Ms Gilroy said to Mr Angelov: “This is sexual harassment. You cannot do this. You can go to court for this.” Ms Gilroy said Mr Angelov replied: “If you report me, I will come to your house and rape your daughter. My friend will hold you down while you watch then it will be my turn and I will rape you.”
22 Ms Gilroy said that, about an hour later, Mr Angelov came to her and apologised. He said: “I am very sorry about what happened. It won’t happen again. Can we still be friends?” Ms Gilroy replied: “We have to work together.” She said she was upset and distressed by what Mr Angelov had done; but she did not immediately tell Mr Botting what had happened because she was still on trial and fearful of losing her job.
23 Ms Gilroy said that, after this incident, Mr Angelov “seemed to calm down to some extent” but he still asked her if she was horny and said he was.
24 Several weeks after she commenced the job, according to Ms Gilroy, she asked Mr Botting whether she could start work fifteen minutes later than Mr Angelov. According to Ms Gilroy , she explained to him:
“I feel very uncomfortable being alone with Branko. He continually says suggestive things. He keeps asking me if I am horny. I don’t trust being alone with him. I don’t feel safe.”
25 According to Ms Gilroy, Mr Botting responded it would not be possible for her to start after Mr Angelov; he needed two people to be present when the alarm was turned off. She said he added:
“It is just Branko’s sense of humour. You should not feel threatened. You are a big girl. You can look after yourself.”
26 Some time later, according to Ms Gilroy, Mr Angelov had car trouble. Mr Botting asked her whether she could pick up Mr Angelov and drive him to work. She refused, saying to Mr Botting:
“I wouldn’t trust him being in a car with me. He won’t keep his hands off me. It is still hard being alone with him for 30 minutes in the bowling club. He is scary.”
27 Ms Gilroy said that, on another occasion, during a break in cleaning, she was seated at a table in the bowling club with Mr Botting and Mr Angelov. Mr Botting started to talk about a new girl, Carlie, he had hired to work at the Burger King (where Botting Co had just obtained a cleaning contract). Ms Gilroy deposed that Mr Botting said to Mr Angelov: “You should see the size of her breasts.” Both men laughed and Mr Angelov replied: “I want you to swap Leoni with her.” Both men laughed again.
28 Ms Gilroy gave evidence about an incident that, she said, occurred on Wednesday, 25 November at about 8 am. In her affidavit, she described the incident in this way:
“At this time there were some bar staff present at the Club but it was not open to the public. My job included cleaning all the club mens’ and womens’ toilets. Branko Angelov had refused to do any of the toilet cleaning work. At the Club there were toilets in both the upstairs bar area and also in the downstairs area. The downstairs section was isolated except when there were bowling competitions when the toilet and change room and shower areas were used by the bowlers. When I went into the downstairs mens’ toilet Branko Angelov was vacuuming the downstairs carpet area.
I took my cleaning equipment into the toilets and change room and began cleaning. Branko Angelov followed me in. I had my back to him and he tapped me on the shoulder. I turned around and he said:
‘You make me horny. Do you want to see?’
He was rubbing his groin area on the outside of his tracksuit pants. He then pulled his tracksuit pants down and took hold of his penis and took it out of his pants.
I was extremely frightened. I started to run for the door. I was shouting. I also felt embarrassed. I shouted:
‘Don’t come near me, don’t come any closer. I will kick you black and blue.’
I ran out the door and upstairs to the bar area. I left the cleaning equipment in the bathroom.
I was too humiliated to say anything to the bar staff who were on. At that time there were three older men working on the bar. Craig Botting was not in the building. I tried to stay around the bar staff area.
After about ten to fifteen minutes Branko Angelov came back upstairs. When he came upstairs he came towards me he was shouting and pointing at me. He came towards me and grabbed me around the collar of my polo shirt. He pulled me towards some tables where there were ashtrays I hadn’t cleaned. He picked an ashtray up and put it under my nose. He then shouted at me words to the effect:
‘Clean ashtrays. Don’t forget to clean ashtrays again.’
I shouted back at Branko Angelov. I said ‘Don’t speak to me in that way’.
I again felt very embarrassed and scared. At this time I looked around and saw that Craig Botting was standing in the bar area talking to a barman. He watched what happened.
I then went over to Mr Botting. Mr Botting said to me:
‘What have you done to my mate Branko?’
I said:
‘I need to talk to you about Branko. He is a sick man.’
Mr Botting said:
‘I can’t talk now. I have an important appointment. I have to take my child to a specialist. This will have to wait until tomorrow.’
I said:
‘Can you stay while I get my things out of the mens’ bathroom. Can you make sure Branko doesn’t follow me?’
Mr Botting said:
‘I can do that if you’re quick.’
When I got my equipment back from the bathroom Mr Botting said to me:
‘You don’t look well. Have you finished your job? You can go now.’
I understand Mr Botting made arrangements for Branko Angelov to finish the cleaning work that day on his own.
29 Ms Gilroy said that, on the following day, she deliberately came to work 15 minutes late, because she expected that, by that time, some of the bowling club staff would have arrived. She said Mr Angelov was waiting for her in the carpark and came up to her as she alighted from her car. He said: “My friend from the Mafia is coming. He will change your mind about the sexual harassment.” She did not reply and got on with her work.
30 Ms Gilroy said she finished work about 9.15 am that morning. Mr Angelov had already left. Mr Botting was outside the club cleaning windows. She approached Mr Botting and said:
‘Branko has sexually harassed me. He has made threats to rape my daughter while I watch if I report him. Can you treat what I say confidentially. He needs to be warned.’
31 Ms Gilroy gave evidence that she also said to Mr Botting:
“Branko has made it hard for me to be in a storeroom or a bathroom. If he said he won’t clean bathrooms can you tell him not to come in while I am in there. Yesterday he exposed himself to me in the bathroom. That was what the argument you saw was about.’
32 Ms Gilroy went on:
“I felt humiliated saying these things to Mr Botting. I spoke quickly. Mr Botting also appeared embarrassed. His face was red. Mr Botting said to me:
‘I don’t believe Branko would do that. I will talk to him. I will keep him away from the bathrooms while you are in there.’
When I finished speaking with Mr Botting I saw Mrs Toni Botting waiting for him in a Tarago van in the carpark. She was revving the motor. After we finished speaking she drove the car away and screeched the tyres. Mrs Botting appeared angry.”
33 Ms Gilroy worked on each of the following mornings, Friday 27 November and Saturday 28 November. Mr Angelov did not. In her affidavit, Ms Gilroy described what happened on the following day:
“On the morning of Sunday 29 November 1998 at around 5.15am when I was preparing to leave my home to go to work Craig Botting met me at the gate of my property. Mr Botting appeared nervous. He had red eyes. It appeared to me he had been crying. Mr Botting said:
‘I have to terminate your employment. My wife thinks we are having an affair. Toni has told me to live in the garage. Toni has my mobile phone and the keys to the house.’
He also said:
‘I have come to your house to stop you going to the Bowling Club because Toni has threatened to run you down.’
Mr Botting also said:
‘If our marriage does split up I will re-employ you if I get the Company. You are an excellent cleaner. You do a good job. You don’t refuse to do any work.’
I was devastated and crying. I said to Mr Botting:
‘Why tell me that my job was safe and then a week later sack me especially right on Christmas.’
34 Ms Gilroy gave the following description of the effect on her of the events she described:
“The sexual harassment and assaults I suffered during my work with Craig Botting have had a devastating effect on me personally and have greatly effected my immediate family, my daughter and mother. The things that have occurred have made it particularly hard to form a relationship with a man and I feel very wary and apprehensive about simple compliments and things that occur in a social setting that I would previously have found enjoyable.”
35 Mr D Crampton, solicitor for Mr and Mrs Botting, closely cross-examined Ms Gilroy about all the events described in her affidavit. He challenged her evidence that she had conversations with Mr Botting, on the subject of Mr Angelov’s behaviour, earlier than Thursday 26 November. However, Ms Gilroy did not resile from her account of the facts.
(ii) Ms Cochrane’s evidence
36 Ms C Howell, counsel for Ms Gilroy, called three witnesses to speak of Ms Gilroy’s condition at the time of her employment by Botting Co. The first was a friend, Nicole Cochrane. Ms Cochrane has known Ms Gilroy since about 1987. The two women, and Ms Gilroy’s daughter, Emma, had shared a house for some months in 1996-1997. During the period of Ms Gilroy’s employment by Botting Co, Ms Cochrane resided in the village of Oak Flats, about three or four kilometres from the farm where Ms Gilroy lived with Emma. Ms Cochrane used to visit the farm about once a week or once a fortnight. She stayed at the farm over the weekend that occurred about two weeks before Ms Gilroy’s dismissal by Mr Botting.
37 Ms Cochrane gave this description of Ms Gilroy’s personality during the period in 1996-1997 when the two women shared a house:
“Very placid. Very home caring. She is very loving to her daughter. Very conscious of her friends and their needs and someone who has always been there if you need someone to talk to.”
38 Ms Cochrane was then asked what she remembered of Ms Gilroy’s demeanour when she stayed for the weekend in mid-November 1998. She replied:
“She was distressed, yes, very upset. She was frightened, because she lived on the farm and it was quite a distance from any other house - - -”
39 Ms Cochrane’s evidence went on:
“If I could just stop you there. Was there anything that you observed about her that led you to the conclusion that she was distressed?—She’d break down in tears very quickly. She was always, when I was there at the weekend, she was always looking out the windows or if the dogs barked she’d be straight to a window looking out to see if there was someone coming. Just always, I don’t know how to explain it, just she’d start crying if we were talking and something upset her, or if she dropped something it would be ‘I can’t handle this’ and she would start bursting into tears, and things like that.
Prior to October 1998 had you ever seen her behaving that way before? – I’d never even seen Leoni cry. She’s always been so happy and fun loving.”
40 On the day of Ms Gilroy’s dismissal, Ms Cochrane accompanied her to collect her pay from Mrs Botting. In a statement verified by her affidavit, Ms Cochrane gave this account of what happened:
“Not long after this, Leonie told me that she was sacked from her job. I asked her why, and she said that the boss, Mr Bottings [sic], told her that his wife thought that they were having an affair. The wife was making threats to Leonie. She told her that if she was walking down the road, she would run her over. Leonie asked me to come with her to pick up her final pay, as she was very scared of what Mrs Bottings might do.
On the day that we went, Mrs Bottings approached us on the balcony, she was very angry and I could see in her face that she didn’t like Leonie. She was very short with Leonie, and then paid her in one dollar coins. One by one, just to see her reaction I believe.
41 During cross-examination, Mr Crampton established that Ms Cochrane had initially mistaken the weekend when she stayed with Ms Gilroy at the farm. He also obtained additional evidence about Ms Gilroy’s personality before being employed by Botting Co:
“You’ve described her as being a fairly outgoing sort of person, is that right?—Not outgoing but happy. She’s never been a real going out person, never been one to go out to the hotels or anything but I mean outgoing as in happy in herself and happy with her life.
Did you ever see her previously depressed?—I’ve occasionally seen her depressed but never to the extent I saw her with the fear she had in this situation.
Did she ever express any concern to you about going out in public, going shopping?—Not before this but afterwards I have seen her, yes. Fear of driving home after work, of being followed home from work after this incidence, yes.
Did you observe any prior occasion over the years where she appeared to be suffering from depression, not just down in the dumps but depression?—No, not really, no. Nothing that I could put a finger on, no.
42 Mr Crampton reminded Ms Cochrane that she had said Ms Gilroy cried a lot after November 1998. He asked how long that lasted. Ms Cochrane responded: “She’s still doing it. She was crying with me yesterday.”
(iii) Evidence of the applicant’s mother
43 Ms Gilroy’s mother, Lurline Emma Ring, corroborated Ms Gilroy’s evidence that she commenced work for Botting Co in October 1998. Mrs Ring said she knew the date because Ms Gilroy telephoned her on Thursday, 8 October and asked whether Emma could stay with Mrs Ring on that night and over the next weekend. Mrs Ring said Emma did this.
44 Mrs Ring was strenuously cross-examined as to her identification of the date when Emma stayed with her. But she was certain she was correct. She said she remembered the date because she had to cancel a dinner engagement to be with Emma; also it was before her birthday in late October.
45 Mrs Ring said that, in late 1998, she had frequent contact with Ms Gilroy, although more often by telephone than in person. Ms Howell asked Mrs Ring to describe Ms Gilroy’s personality prior to October 1998. Mrs Ring responded:
“Well, she was a jolly girl, nice daughter, and it changed her personality that much I didn’t know her any more.”
46 Mrs Ring said she noticed change in Ms Gilroy “[p]retty well straight away after she started working. She was very withdrawn.” Mrs Ring said Ms Gilroy “cried a lot if she was spoken to.” She said Ms Gilroy “got very angry at different things which I thought she wouldn’t, very easily upset.”
47 Under cross-examination, Mrs Ring said she noticed the change in Ms Gilroy’s personality only a few days after she started working for Botting Co. Mrs Ring said “maybe every second day she would ring me, to tell me what was going on.” She said Ms Gilroy “didn’t seem very happy at all”; she was “down and depressed”. Later on Mrs Ring noticed anger.
48 Mrs Ring also noticed Ms Gilroy was “very teary”. She said “she got worried after she was dismissed”.
49 Mr Crampton put to Mrs Ring that the worst incident she recalled being reported by Ms Gilroy was that “a man had pulled her by the shirt”. Mrs Ring had mentioned this in a statement she prepared before the institution of this proceeding. Mrs Ring said this was not the only thing she had been told. She said she “was embarrassed to write some of the things down that my daughter had told me what was done to her”. In re-examination, Ms Howell asked Mrs Ring to say what those matters were. She replied:
“Well the co-worker called Branko used to say to her nearly every morning, you make me feel horny, you want to see. I thought that was very disgusting and I don’t see why a person should have to put up with talk like that.”
50 Mrs Ring also said that Ms Gilroy “told me that she was down in the storeroom, which is a very small area, and that he rubbed himself against her.”
(iv) Evidence of the applicant’s daughter
51 Ms Gilroy’s daughter, Emma Gilroy, was 14 years old at the time of Ms Gilroy’s employment with Botting Co. She deposed to hearing her mother crying in her bedroom on the morning of 26 November and on each of the following mornings. She also recounted a conversation on the morning of 29 November when Ms Gilroy told her she had been dismissed because Toni Botting “thought that my mother was having an affair with her husband”. She went on:
“Toni Botting kept ringing all morning and speaking very abruptly on our answering machine, my mother got sick of it and picked up the phone up. My mother told Toni Botting that she did not have an affair with her husband and it was unfair dismissal. Toni Botting got angry and yelled at my mother and said it was cause you didn’t wear your uniform. Toni Botting said if my mother wanted any money that the company owed her she would have to go to the Bottings house at 9 am and collect it, my mother told her it had better be the award wage. My mother was a mess for days, even weeks, and her friends that she would try to talk about it to, she would just burst into tears.”
(v) Expert psychological evidence: Ms Grew
52 Ms Gilroy was seen by a clinical psychologist, Patricia Kathleen Grew, on five occasions between June 1999 and the trial of this proceeding. After the first three consultations, Ms Grew wrote a report in which she set out a history given to her by Ms Gilroy that is consistent with Ms Gilroy’s evidence in this proceeding. Ms Grew then set out her findings:
“Leoni’s symptoms were those of extreme distress. She said she had been trying to hide her emotions because they did not help when presenting for a job application. Her core personality is a quiet one, but she found that she had been wakeful at night, was having bad dreams when she did sleep, felt upset when alone, and apprehensive most of the time. She lacked motivation felt she didn’t want to socialise – just wanted to stay at home, and she had lost her trust in men. When she described her feeling of lethargy, not feeling good any more, and her panic attacks, I believed Leoni was suffering from depression.
Perhaps the most damaging effect on Leoni has been her loss of confidence. She now feels that she needs work but can’t begin to look for work as her confidence level is low since her experience with Branko. Because of her fear of reprisals from Branko she had moved house and was forced to move her daughter Emma to another school. Emma is upset and feels rejected and unpopular with her fellow students whereas she liked her school at Dapto. These are further concerns of Leoni’s consequent upon her harassment and sacking.
I decided to administer clinical tests for anxiety and depression to Leoni as part of the assessment of her degree of stress and any psychological damage which may have been caused by the harassment. We used the IPAT Anxiety and Depression Scales *** and obtained the following results.
IPAT Anxiety Scale: Leoni’s score for this was just above average. This may have been due to the counselling sessions we had had and some of the coping strategies on which we worked and which she had adopted. These are temporary, and, as Leoni says, she makes a big effort to appear normal.
IPAT Depression Scale: Leoni’s score for this test was well above average. The effort she was making to cope had taken its toll and her ensueing [sic] depression was such that her symptoms of sleeplessness, worry about her daughter, loss of confidence, loss of self esteem and self worth, were all affecting her life and were increasing with the duration of her condition.
Although she is an attractive woman in her early thirties, she is now antisocial and is leading a restricted lifestyle. Leoni has a sense of loss of personal power and lacks assertiveness since her experiences at Bottings. If her depression is prolonged it can damage her psyche and recovery becomes more difficult the longer it is left unattended. Her negative feelings about, and her mistrust of, men is unusual in a woman of her age and is affecting every aspect of her life. It appears to be a reactive depression to the sexual harassment and will require further counselling to settle it.
53 Ms Grew offered this prognosis:
“With some help her shock should pass but she requires work, financial help and counselling to recover from her experiences. The discrimination and abuse she has felt has lowered her self esteem, her confidence, her sense of personal power, and has led to a serious depression. Unless her depression is resolved she will become psychologically damaged and socially disadvantaged. Her parenting, her daughter’s future and her own future are at risk.
The cost of counselling is $120.00 a session and I anticipate Leoni will need five further sessions.”
54 In fact Ms Gilroy has had only two further sessions, apparently because she has not been able to afford more.
55 At the request of Ms Gilroy’s solicitors, in September 2000 Ms Grew provided an additional report in which she referred to the more recent consultations. Ms Grew summarised her opinion in this way:
“1. Leoni would have benefited from counselling through the year but was unable to afford it.
2. I estimate her anxiety has increased and has been exacerbated by her concern for her daughter’s safety. This concern has resulted in her moving her home to a new location, which address she is too apprehensive to reveal in case he may trace her whereabouts.
3. Her depression, which was at a high level a year ago has possibly increased since this has not been treated either.
4. Certainly her finances have been a constant source of concern to her as she has not been able to get work at suitable times which would fit with her daughter’s lifestyle, so has had to forgo a great deal of work.
5. Her confidence and self esteem have suffered as a direct result of the crude and humiliating behaviour of her workmate Branko.
6. Her relationship with her daughter has deteriorated and her feeling of responsibility for her increased.
7. The continuing restrictions on her capacity for work have been stated above and, in my opinion, are a direct consequence of her sexual harassment and discrimination against her on the basis of her sex. These restrictions have been psychological, physical, situational and social, as well as affecting her family life, her feeling of security, and her daughter’s healthy development.”
56 During cross-examination, Mr Crampton explored with Ms Grew the possibility that the depression she had diagnosed was related to a problem Ms Gilroy experienced in 1994 after the breakup of a longstanding de facto relationship. Medical notes that were produced to the Court on subpoena suggested the possibility that Ms Gilroy was depressed at that time, although the author of the notes was not called to give evidence. Ms Grew said she had not known of the 1994 experience and would have been interested to hear more about it. However, after being taken through the whole of the material available to Mr Crampton, she said she thought the 1994 relationship breakup had no connection with Ms Gilroy’s condition in 1999-2000. Asked if she would exclude the possibility of a connection, she said she would.
57 Arrangements were made for Ms Gilroy to see a psychologist retained for the purpose by Mr and Mrs Botting. However, Mr Crampton did not call the psychologist to give evidence. There was no rebuttal of any of Ms Grew’s opinions.
The second respondents’ case
(i) Mr Botting’s evidence
58 Mr Botting gave evidence that Ms Gilroy commenced her employment with Botting Co on Monday 9 November, not Friday 9 October. The first two weeks of her employment was a trial period; that is until 23 November. Ms Gilroy was terminated six days later, on 29 November. Mr Botting gave two reasons for the termination: first, Ms Gilroy had failed to purchase grey tracksuit pants which, with a blue top, was the Botting Co “uniform”; second, the cancellation of Botting Co’s contract with Burger King.
59 Mr Botting denied it was he who proposed that Ms Gilroy be paid in cash, without any record of her employment being kept. He said Ms Gilroy asked to be paid in cash because she was in receipt of a pension from the Department of Social Security and did not want “to have the trouble of going on and off the pension” if she was not to be a permanent employee; so she asked to receive cash while on trial. Mr Botting said he agreed to that course. No record of Ms Gilroy’s employment was made in the firm’s wages book, even after the end of the trial period. No tax was ever deducted from her wages.
60 Mr Botting agreed Ms Gilroy spoke to him on 26 November 1998 about Mr Angelov. But he gave a different version of the conversation to that of Ms Gilroy. He said he was cleaning some glass near the front steps of the club when Ms Gilroy came to him and said: “Branko is scary.” He asked her what she meant and Ms Gilroy explained: “His appearance and his abrupt voice frighten me.” He said he replied: “Don’t worry about Branko, he is harmless” and she said: “that’s okay I can take care of myself.” Mr Botting said:
“At no stage did Ms Gilroy say to me that Branko had behaved in any improper way towards her or made any sexual reference or threats to her. Her comments were limited to the appearance and voice of Mr Angelov only.”
61 Mr Botting agreed that he overheard an altercation between Ms Gilroy and Mr Angelov about the cleaning of ashtrays but he denied that Ms Gilroy made any comment to him of sexual harassment by Mr Angelov. Mr Botting said that, if Ms Gilroy had made a comment of that nature: “I would have taken action in respect of Mr Angelov.”
62 Mr Botting agreed he met Ms Gilroy at the front gate of her home at about 5.15 am on Sunday , 29 November 1998 and terminated her employment. But he said in his affidavit that the decision to terminate Ms Gilroy’s employment:
“… was in no way related to the allegation of sex harassment or to any complaint of sex harassment and I therefore seek the court’s indulgence not to respond in detail to matter involving the termination as they are irrelevant to the issue before the court.”
63 In his oral evidence Mr Botting gave the two reasons already mentioned: Ms Gilroy’s failure to purchase grey tracksuit pants and the loss by Botting Co of the Burger King cleaning contract. Mr Botting explained that the only reason Ms Gilroy had been employed was that he himself would be required to work at Burger King; she was employed to relieve him at the bowling club. But the Burger King contract was cancelled after only a few days.
64 In oral evidence Mr Botting denied the conversation claimed by Ms Gilroy in which she asked whether she could start 15 minutes later because of her concern about Mr Angelov’s behaviour. But Mr Botting said he did tell his employees “that there should be two people present to go and turn the alarm off”.
65 Mr Botting agreed he asked Ms Gilroy to give Mr Angelov a lift in her car and that she refused. But he said the only reason she gave was that it was out of her way. He also denied having any conversation about a new employee called Carlie, or ever having employed a woman of that name.
66 During the course of cross-examination, Mr Botting said the decision to dismiss Ms Gilroy was taken by himself and his wife during the evening of Saturday, 28 November. The catalyst of this decision, according to Mr Botting’s evidence, was that a comment about Ms Gilroy’s attire had been made to Mrs Botting that day by a member of the club. Although, according to Mr Botting, this was only five days after the expiration of Ms Gilroy’s trial period, and he had not given Ms Gilroy any ultimatum or deadline in connection with acquiring tracksuit pants, it was decided that evening that Ms Gilroy should be dismissed before she went to the club the following morning.
67 Mr Botting was asked about Ms Gilroy’s claim that the stated reason for her dismissal was that Mrs Botting had accused him of having an affair with Ms Gilroy. He said there was no truth in that claim; he had told Ms Gilroy she was being terminated because of the lack of a uniform.
(ii) Mrs Botting’s evidence
68 Mrs Botting had minimal contact with Ms Gilroy during the course of the latter’s employment with Botting Co. According to Mrs Botting, she saw Ms Gilroy at work on only one occasion. There is no evidence of any conversation between the two women prior to Ms Gilroy’s dismissal.
69 Mrs Botting was the partner in Botting Co who was responsible for such financial and wages records as were kept. She was responsible for making up employees’ wages and for submitting invoices to clients. However, Mrs Botting said that her husband paid Ms Gilroy in cash, with the exception of the final payment of wages; that was made by Mrs Botting after the termination of Ms Gilroy’s employment.
70 Mrs Botting said she was unaware of any complaint by Ms Gilroy about Mr Angelov’s behaviour. Had she learned of a complaint, she would have investigated it. If she came to the conclusion there was a basis for any complaint: “Mr Angelov would have been dismissed and made to make an apology to Ms Gilroy, most definitely.”
71 Ms Howell cross-examined Mrs Botting about entries in the Botting Co wages book. It is not necessary to record the detail of the questions or Mrs Botting’s responses. It is enough to say they established that the wages book contained many inaccuracies. One example is that Mr Angelov was shown as working for only two days per week, each Tuesday and Wednesday, whereas Mr Botting agreed in his affidavit with Ms Gilroy’s claim that Mr Angelov worked seven days per week throughout the whole of the period of her employment. No doubt the explanation of the discrepancy is tax avoidance, but Mrs Botting would not concede her wages record was wrong. Instead she insisted that Mr Angelov only worked two days per week, except in the eight day period in which Botting Co had the Burger King contract, when Mr Angelov worked every day. However, even during that period, the wages book has Mr Angelov working only on Tuesday and Wednesday. These two days, incidentally, were not only two of the lightest mornings at the club – along with Thursday and Friday - but were mornings on which Ms Gilroy rarely worked.
72 Mrs Botting agreed that Botting Co paid Ms Gilroy substantially below the award rate, but she denied the cash payment was made to avoid tax.
73 Ms Howell asked Mrs Botting about the circumstances of Ms Gilroy’s dismissal. She said the decision was taken during the evening before the dismissal and that it resulted from a comment made to her about Ms Gilroy’s attire by a director of the club. She said the comment was made earlier in the day of the decision to terminate.
74 Mrs Botting said other factors contributing to the decision to dismiss were Ms Gilroy’s failure to give her a tax form, so Mrs Botting could “put her on the books”, and the termination of the Burger King contract.
75 Mrs Botting denied there was any other reason for dismissing Ms Gilroy. She described as “fabricated” Ms Gilroy’s claim that Mr Botting told Ms Gilroy he was terminating her because his wife suspected him of having an affair with Ms Gilroy. She said she would not suspect her husband of having an affair. She added: “I didn’t like her attire in front of my husband.” Mrs Botting’s evidence went on:
“You didn’t like her attire, well I didn’t ask you about that. You deny the suggestion that you were suspicious or accusing about your husband having an affair with Ms Gilroy? – I was never accusing.
You were never accusing, were you suspicious? – In my own mind I may have been.
In your own mind? Did you voice your suspicion?---No.
So in fact you were suspicious, but you never voiced it and purely by coincidence Ms Gilroy fabricated this story, which happened to coincide with your unvoiced suspicions. Have I got it right?—It would appear so.”
(iii) Evidence of Mr Richardson
76 Mr Crampton called evidence from a director of the bowling club, James Richardson. During October-November 1998 it was Mr Richardson’s practice to attend the club between 6 am and 9 am on most mornings in order to empty the poker machines. He said that, at that time, there would ordinarily be three or four people present, doing the machines and counting money. Mr Richardson said he recalled Ms Gilroy working at the club as a cleaner. He thought she worked “around a couple of months, two or three months or something, it wasn’t that long, but I can’t guarantee that.”
77 Mr Richardson said he noticed that Ms Gilroy did not wear the Botting Co “business uniform of tracksuit pants and a blue polo shirt”; “She appeared to be wearing tight fitting jeans with various coloured shirts”. Mr Richardson thought this to be inappropriate attire and made a comment to that effect to Mrs Botting. Mr Richardson said he made the comment only once. When he was asked whether he could remember when he made the comment, Mr Richardson replied: “It might have been a few days after she was employed at the club as a cleaner.”
SUBMISSIONS
(i) The applicant’s contentions
78 Ms Howell submitted the evidence clearly established that, throughout virtually the whole of her period of employment by Botting Co, Ms Gilroy was subjected to unwelcome conduct of a sexual nature by Mr Angelov. She argued that Mr Angelov’s conduct constituted sexual harassment within the meaning of s 28A of the Sex Discrimination Act. Accordingly, his conduct infringed s 28B of the Act. Ms Howell also contended that, because Mr Angelov was permitted to conduct himself in that way, the employer (Botting Co) discriminated against Ms Gilroy on the ground of her sex, within the meaning of s 14(1) or (2) of the Sex Discrimination Act.
79 Ms Howell suggested the only real issue in the case was whether the second respondents were able to make out the defence provided by s 106(2) of the Act. She submitted they could not; there was no evidence establishing that the second respondents “took all reasonable steps to prevent the employee (Mr Angelov) … from doing acts of the kind referred to …” in para (a) or (b) of s 106(1); there was no evidence that the second respondents did anything at all in relation to possible sexual harassment.
80 Ms Howell argued that the onus cast on an employer by s 106(2) does not depend upon it being shown that the employer had knowledge of facts that indicate the likelihood that the employee will commit acts of sexual harassment; the onus is on the employer to prevent any possible problem arising. Ms Howell cited a decision of the Human Rights Commission, Boyle v Ishan Ozden & Ors (1986) EOC 92-165. In that case the Commission found that the first respondent, the manager of a shop, had subjected the applicant, an employee in the shop, to a course of sexual harassment while his parents, the owners of the shop and second and third respondents, were overseas. The Commission (Dame Roma Mitchell, Mr P H Bailey and Mr N C Ford) made an award of damages against all three respondents. At 76,614 Dame Roma referred to s 106(2) of the Act and said:
“There was no evidence that any steps had been taken by the second or the third respondent to prevent the commission of acts such as those complained of by the complainant. In saying that I do not criticise them. It would be difficult to envisage a situation in which they would have given such instructions. But the fact is that sec. 106 attaches vicarious liability to them unless they have done something active to prevent the acts complained of. So that if we find that the acts complained of were done and that the complainant’s case is correct, then clearly not only the first respondent but the second and third respondents are also liable.”
81 I asked Ms Howell what steps Mr and Mrs Botting might reasonably have taken to prevent Mr Angelov sexually harassing Ms Gilroy, assuming they had no prior knowledge of any objectionable conduct by him. I aired the possibility that, while it may be reasonable to expect a person who employs many people to formulate a code designed to prevent sexual harassment and/or to facilitate early and relatively unstressful complaint about any unacceptable conduct that does occur, and to instruct all employees about the code, it might be invidious, and therefore more difficult, to give instruction to one of only a handful of employees.
82 Ms Howell argued against recognition of any distinction based on the size of the employer’s undertaking. She contended it is relatively easy for even a small employer to prepare a brief document pointing out the nature of sexual harassment, the sanctions that attach to it and the course that ought to be followed by any employee who feels sexually harassed. She said such a document could be provided to each employee on recruitment, as a matter of routine and before there was, or could be, any suggestion that the employee had done anything wrong or was the victim of inappropriate conduct. Ms Howell made the point that, in this particular case, the circumstances of Ms Gilroy’s employment made her particularly vulnerable to the possibility of sexual harassment. Ms Gilroy was required to commence working at 5.30 am with one man in premises that nobody else was likely to enter for some time. Moreover, Ms Gilroy was required to enter rooms, such as toilets and storerooms, from which she could not exclude her fellow employee and into which other people were unlikely to go at that time.
83 By way of alternative to the foregoing submissions, Ms Howell contended the Court should find that the second respondents, through Mr Botting, had actual knowledge of Mr Angelov’s propensity to sexually harass Ms Gilroy. She submitted the Court should prefer Ms Gilroy’s evidence of her various conversations with Mr Botting to the latter’s denial of those conversations; if the Court did so, actual knowledge would be established. As the second respondents took no steps to prevent further acts of sexual harassment, the defence provided by s 106(2) would fail.
(ii) The second respondents’ contentions
84 Mr Crampton joined issue with Mr Howell on the appropriate factual findings. He contended that, in neither of the statements that Ms Gilroy made to the Human Rights and Equal Opportunity Commission before the institution of this proceeding, did Ms Gilroy claim to have made a complaint to Mr Botting before Thursday 26 November 1998. He pointed out that the conversation of that morning took place after Ms Gilroy had finished work for the day and that she did not work with Mr Angelov on either of the next two days, before her dismissal on the Sunday morning; in other words, there was no act of sexual harassment after the conversation of 26 November. If that be accepted, Mr Crampton argued, it must follow that any acts of sexual harassment by Mr Angelov took place before Mr and Mrs Botting became aware of a potential problem.
85 In dealing with Mr Howell’s contention that the defence provided by s 106(2) may fail, even where the employer has no knowledge of the employee’s propensity to harass, Mr Crampton suggested it was relevant to draw a distinction between a case, like the present one, where the employer is available to employees “on almost a daily basis”, and easily able to be consulted, and ones, like Boyle, where the employer was overseas. He said the employer’s presence provides a potential victim with more than a reasonable opportunity for complaint; the fact that the employer is on the premises from time to time “can, itself, constitute a disincentive toward any misconduct”. The employer’s presence is itself a reasonable step to prevent sexual harassment.
Discussion
(i) Liability
86 Mr Crampton did not submit I should disbelieve Ms Gilroy’s evidence about Mr Angelov’s conduct towards her. That was a realistic assessment of the situation. Ms Gilroy was an impressive witness. I thought the evidence she gave about Mr Angelov’s conduct was cogent and convincing. Moreover, it is clear, from the evidence of Ms Cochrane and Ms Gilroy’s mother and daughter, that she found her period of employment with Botting Co extremely stressful. Plainly, something traumatic was occurring and no other cause of the trauma has been suggested.
87 Once it is accepted that Mr Angelov did sexually harass Ms Gilroy, it is impossible to accede to Mr Crampton’s argument that the visits of Mr Botting to the bowling club were themselves conduct constituting “all reasonable steps to prevent the employee” from doing the proscribed acts. His visits to the club did not have that effect. Nor could it be expected that they would. Mr Botting was routinely engaged in cleaning other premises during the period, at the beginning of the bowling club work shifts, when nobody else was at the club and any sexual harassment was most likely to occur. There is no evidence of Mr Botting ever visiting the club early in the work shift. There was virtually no chance that Mr Angelov would be disturbed by Mr Botting while harassing Ms Gilroy.
88 Mr Crampton conceded that, if it is appropriate to find that Mr Botting was made aware of any aspect of Mr Angelov’s conduct before later acts of sexual harassment by him, he has difficulties in relation to his s 106(2) defence. However, he argued I should not so find and put submissions in relation to each of the conversations claimed by Ms Gilroy.
89 I agree with Mr Crampton’s assessment of the situation. If I accept Ms Gilroy’s evidence about conversations with Mr Botting, the s 106(2) defence must fail. In that situation, it would not be necessary for me to determine whether I accept Ms Howell’s submission that, even in the absence of knowledge, the second respondents were obliged to take action to prevent the harassment occurring.
90 I have concluded I should accept Ms Gilroy’s evidence about her conversations with Mr Botting. As I have said, Ms Gilroy was an impressive witness. She seems to be a relatively unsophisticated person, but straightforward and honest. She paid attention to the questions asked of her and tried to deal with them directly and fully.
91 Regrettably I cannot say the same of Mr and Mrs Botting. Both of them prevaricated on occasions. Both gave some evidence that was clearly incorrect. I have already mentioned the conflict between Mr and Mrs Botting over Mr Angelov’s working hours: see para 71 above. There is no doubt that Mr and Mrs Botting are wrong in claiming that Ms Gilroy commenced her employment on 9 November, rather than 9 October. This claim may arise out of their wish to link Ms Gilroy’s dismissal to the loss of the Burger King contract. Possibly they think this reason might be regarded as more credible if Ms Gilroy had been recently recruited, with that contract in mind; whereas it would be difficult to accept if she had been working for over a month before that contract came along. But their evidence on this point not only conflicts with the notations on Ms Gilroy’s calendar, and the firm evidence on the matter given by Mrs Ring, but also the impression of Mr Richardson that Ms Gilroy was at the bowling club for two or three months. The attempts by Mr and Mrs Botting to relate their recollections of the starting date to an advertisement published on 24 October were unpersuasive. My best understanding of their somewhat confusing evidence is that this advertisement was placed in order to obtain a new employee to work at Burger King.
92 I think Mr Botting was clearly lying when he said that the reason for Ms Gilroy’s dismissal was her failure to obtain tracksuit pants and/or the loss of the Burger King contract. I cannot imagine any employer would dismiss an employee for failure to wear particular attire, which the employee had to acquire for herself, without first giving the employee an ultimatum or final warning, especially in a case where the employee had worked satisfactorily for some seven weeks. It is even more difficult to believe an employer would do this in a pre-emptory fashion, before the start of work on the busiest morning of the week. On the other hand, it is believable that Mr Botting might have gone to Ms Gilroy’s home at about 5 o’clock on a Sunday morning, to prevent her going to the club, in circumstances where his wife was accusing him of having an affair with Ms Gilroy and threatening to run her over in the club carpark.
93 There is no reason to believe there was ever a sexual relationship between Mr Botting and Ms Gilroy. Accordingly, any accusation of an affair by Mrs Botting would have been unjustified. It does not follow that the accusation was not made. People sometimes misread situations. It will be recalled that, in her affidavit, Ms Gilroy mentioned that, when she finished speaking to Mr Botting at the front of the club on 26 November, she saw Mrs Botting waiting for him in a Tarago van in the carpark. Mrs Botting was revving her motor and she subsequently drove away with screeching tyres. It is possible that Mrs Botting misunderstood what was happening in a conversation that, on Ms Gilroy’s version at least, would have been intense and emotional.
94 It is also apparent, from the evidence of both Ms Cochrane and Emma Gilroy, that Mrs Botting was very angry with Ms Gilroy on the day of her dismissal. Why? Not because she had failed to buy tracksuit pants or give Mrs Botting a tax file number.
95 The giveaway to Mr and Mrs Botting’s denial of the version claimed by Ms Gilroy is provided by the evidence of Mrs Botting quoted in para 75 above. It is impossible to believe Ms Gilroy could have fabricated a statement by Mr Botting as to Mrs Botting’s suspicion that happened to coincide with a suspicion she had in fact formed but had not voiced, especially as Ms Gilroy scarcely knew Mrs Botting.
96 Mr Crampton submitted that Ms Gilroy’s evidence of complaint to Mr Botting, before Thursday 26 November, was a recent invention, something said for the first time in an affidavit made shortly before the hearing and at a time when Ms Gilroy had the benefit of legal advice. If that submission is correct, it would cast doubt on the veracity of her evidence. So I have given it careful consideration. But I have concluded it is not correct.
97 Ms Gilroy made an initial complaint to the Human Rights and Equal Opportunity Commission on about 17 February 1999. The statement she supplied in support of that complaint was skimpy and poorly-structured. The only reference in that statement to a conversation with Mr Botting about Mr Angelov’s behaviour was to the conversation of 26 November 1998.
98 The Commission apparently referred the complaint to Mr Angelov and to Mr and Mrs Botting for comment. They made comments and Ms Gilroy was asked to respond to them. It appears Mr Botting suggested that, although Ms Gilroy had described Mr Angelov as “scary” in conversation with him, this word did not have any sexual connotation. Ms Gilroy responded:
“I called Branko ‘Scary’ because of his sexual mind and behaviour, Mt Botting knew this, because Mr Botting wanted me to pick Branko up for work and take him home, when Branko had car trouble. I told Mr Botting ‘No way, Branko is Scary’ and I explained this to Craig Botting, he knows scary is not because of dark hair, whiskers and deep voice. I said ‘I wouldn’t feel safe in my car alone with Branko’, not to mention Warrawong is 20 mins out of my way.”
99 This passage occurs in a statement made at an early stage of the case. The statement is in Ms Gilroy’s own handwriting. It was obviously made without legal assistance. The passage clearly indicates a claim by Ms Gilroy that she conveyed to Mr Botting, as early as the car lift conversation, that she was frightened of sexual harassment by Mr Angelov. Even if it was not necessary before that conversation for Mr Botting to take steps to protect Ms Gilroy from sexual harassment by Mr Angelov, it clearly then was. On any view of the evidence, this conversation took place before 25 November when Mr Angelov exposed himself to Ms Gilroy.
100 Having regard to my factual finding in favour of Ms Gilroy, it is not necessary for me to express any concluded view as to the availability of a defence under s 106(2) of the Sex Discrimination Act to an employer who has done nothing to prevent sexual harassment of one employee by another, but in circumstances where the employer has no knowledge that any improper behaviour has occurred or is threatened. It may be more difficult for a small employer, with few employees, to put into place a satisfactory sexual harassment regime than for a large employer with skilled human resources personnel and formal training procedures. But the Act does not distinguish between large and small employers, and the decided cases show that many sexual harassment claims concern small businesses, often with only a handful of employees. A damages award against such an employer may have devastating financial consequences; so there is every reason for such an employer to be careful to prevent claims arising. The simple procedure proposed by Ms Howell (see para 82 above) would go some distance towards reducing the chance of sexual harassment at the employer’s workplace and a long way towards enabling the employer (in the absence of knowledge of an actual problem) to make out a defence under s 106(2) of the Act. Perhaps employer organisations could take an initiative in this area and provide their members with appropriate advice, and even a draft of a document to be supplied to new employees.
101 In the present case, there was a complaint of improper behaviour. That complaint ought to have been taken seriously and investigated. Had this been done in an open-minded way, I am confident Ms Gilroy would have been believed and appropriate action taken against Mr Angelov. This would not only have prevented further harassment of Ms Gilroy; it would have given her a feeling of support and comfort in relation to the harassment she had already endured.
102 I have reservations as to whether s 14(1) or (2) applies to this case. I think these subsections are intended to deal with acts or omissions of the employer that discriminate on one of the proscribed grounds. It is artificial to extend the concepts embodied in those sections in such a manner as to include the sexual harassment of one employee by another. As it seems to me, it was because s 14 did not really fit that case that s 28B was enacted. To my mind, s 28B covers this case. The defence provided by s 106(2) not having been established, there ought to be judgment in favour of Ms Gilroy against Mr and Mrs Botting.
(ii) Damages
103 Ms Howell submitted I should find a causal connection between Ms Gilroy’s complaint to Mr Botting on Thursday 26 November, about Mr Angelov’s behaviour, and her dismissal on the following Sunday morning. I decline to do this. I think Ms Gilroy was dismissed because of Mrs Botting’s jealousy. I believe Mrs Botting misconstrued what was happening in the conversation of 26 November and pressured her husband to dismiss Ms Gilroy. Although the Thursday conversation concerned Mr Angelov’s conduct, and that conversation triggered the jealousy, there is not a sufficient nexus between Mr Angelov’s acts of sexual harassment and Ms Gilroy’s dismissal for it to be appropriate to compensate Ms Gilroy on the basis that the sexual harassment caused her dismissal.
104 This being so, there is no element of economic loss in Ms Gilroy’s claim. That does not mean the claim is insignificant. On the contrary, as is indicated by the evidence I have summarised, Mr Angelov’s conduct has had serious consequences for Ms Gilroy. Those consequences were exacerbated, rather than ameliorated, by the failure of Mr Botting to provide support to Ms Gilroy and his abrupt and unfair dismissal of her.
105 In Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217 at 256, I observed that “the task of determining the appropriate level of damages in a case of sex discrimination or sexual harassment is not an easy one”. I went on to make some comments which I venture to repeat:
“Where it appears that a claimant has incurred particular expenditure or lost particular income as a result of the relevant conduct, that economic loss may readily be calculated. But damages for such matters as injury to feelings, distress, humiliation and the effect on the claimant’s relationships with other people are not susceptible of mathematical calculation. The assessor of damages must make a judgment as to an appropriate figure to be allowed in respect of these figures. But to say this is not to denigrate the importance of such non-economic factors in the assessment of damages. It may be unfortunate that the law knows no other way of recognising, and compensating for, such damage; but this is the fact. To ignore such items of damage simply because of the impossibility of demonstrating the correctness of any particular figure would be to visit an injustice upon a complainant by failing to grant relief in respect of a proved item of damage. I respectfully adopt, as a statement of principle useful in this area of the law, what was said by May LJ, of the English Court of Appeal in a racial discrimination case, Alexander v Home Office [1988] 1 WLR 968 at 975; [1988] 2 All ER 118 at 122:
‘As with any other awards of damages, the objective of an award for unlawful racial discrimination is restitution. Where the discrimination has caused actual pecuniary loss, such as the refusal of a job, then the damages referrable to this can be readily calculated. For the injury to feelings however, for the humiliation, for the insult, it is impossible to say what is restitution and the answer must depend on the experience and good sense of the judge and his assessors. Awards should not be minimal, because this would tend to trivialise or diminish respect for the public policy to which the Act gives effect. On the other hand, just because it is impossible to assess the monetary value of injured feelings, awards should be restrained. To award sums which are generally felt to be excessive does almost as much harm to the policy and the results which it seeks to achieve as do nominal awards. Further, injury to feelings, which is likely to be of a relatively short duration, is less serious than physical injury to the body or the mind which may persist for months, in many cases for life.’”
106 Those comments apply to this case. Taking into account the whole of the evidence, as to the effect of Mr Angelov’s conduct on Ms Gilroy, I think it is appropriate to assess damages in the sum of $20,000. I add two years’ interest at 10% to take the figure to $24,000. There will be judgment in Ms Gilroy’s favour in that sum as against Mr and Mrs Botting. Mr and Mrs Botting must pay Ms Gilroy’s costs.
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I certify that the preceding one hundred and six (106) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox. |
Associate:
Dated: 8 December 2000
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Counsel for the Applicant: |
Ms C Howell |
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Solicitor for the Applicant: |
Turner Freeman |
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Solicitor for the Respondent: |
Mr D Crampton of Marriott & Oliver |
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Dates of Hearing: |
5 October and 8 November 2000 |
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Date of Judgment: |
8 December 2000 |
