Civil and Administrative Tribunal New South Wales

• Medium Neutral Citation: ABC v DEF Restaurant and GHI [2014] NSWCATAD 140
• Hearing dates: 15 July 2014
• Decision date: 16 September 2014
• Jurisdiction: Administrative and Equal Opportunity Division
• Before: A Scahill, Senior Member; A Limbury, General Member,; A Lowe, General Member

Decision

1. The Tribunal awards the sum of $5,000 to the Applicant against each of the Respondents, GHI and PQR as proprietor of the DEF restaurant, for the breaches made out by her of the Anti-Discrimination Act. That is a total of $10,000.

2. In accordance with the practice of the tribunal, the tribunal makes no order as to costs.

• Catchwords: Sexual harassment, vicarious liability
• Legislation Cited: Anti-Discrimination Act 1977; Civil and Administrative Tribunal Act 2013; Evidence Act 1995
• Cases Cited: Caton v Richmond Club Limited [2003] NSWADT 202; Franks v Marco's Italian Gourmet Cafe Pty Ltd & Anor [2004] NSWADT 87; Shellharbour Golf Club v. Wheel (1999) NSWSC 224
• Category: Principal judgment
• Parties: ABC (Applicant); DEF Restaurant (1st Respondent); GHI (2nd Respondent)
• Representation: Dear Loneragan and Hogan (Applicant); Flynns Solicitors (2nd Respondent)
• File Number(s): 131105

reasons for decision

The Application

1 ABC was employed as a casual kitchen hand at the DEF restaurant in a town in western NSW commencing in February 2010.

2 She lodged a complaint with the Anti-Discrimination Board of New South Wales through her legal representative on 17 May 2013. That complaint alleged that she had been sexually harassed in employment by her boss GHI on 31 July 2012.

3 The President of the Anti-Discrimination Board investigated the complaints and referred them to the Equal Opportunity Division of this Tribunal pursuant to s 93C of the Anti-Discrimination Act 1977 ("the Act").

Order prohibiting disclosure of names - section 64 of the Civil and Administrative Tribunal Act (CATA)

4 One of the witnesses to the matter was 17 years old at the time of the alleged incident on 31st July 2012. It is usual in other jurisdictions to suppress the name of a minor in the reporting of proceedings. The tribunal has made the decision in this matter of its own motion to suppress the name of this witness and, of necessity, all the parties and witnesses. The reason for this broad suppression order is that identification of the Applicant will lead to identification of the witness who is the Applicant's daughter and who was a minor at the time of the incident. Similarly direct identification of the Respondents and the witnesses called by the Second Respondent may lead to identification of the witness who was a minor as she was also employed at the DEF Restaurant. In order to allow for the publication of this decision while ensuring the anonymity of the parties and witnesses, the tribunal has referred to the parties and witnesses by initials unrelated to their names

5 Section 64 of the CATA is headed "Tribunal may restrict disclosures concerning proceedings" and provides as follows

(1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders:

(a) an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal),

(b) .........

(c)............,

(d) ...........

(2) The Tribunal cannot make an order under this section that is inconsistent with section 65.

(3) The Tribunal may from time to time vary or revoke an order made under subsection (1).

(4) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

6 The complaint is set out in the Applicant's complaint made to the Anti - Discrimination Board on 17 May 2013 as follows:-

I believe that I was sexually harassed at my workplace, DEF restaurant by the boss, GHI on 31st of July 2012. I have already made a complaint to the Human Rights Commission; however the complaint was terminated as GHI would not agree to participate in a conciliation conference.

I commenced employment at the DEF restaurant in February 2010 my boss was GHI. On 31st of July 2012, at or around 5:30 PM GHI asked me to wash the tablecloths. In the back area of the restaurant, there is a small room that has a bed, a sink, a toilet and a washing machine. As I walked to the backroom to wash the tablecloths, GHI followed me. As I was washing the tablecloths, he stood behind me and said "You are doing that correctly". He then reached around his arm under my right arm and grabbed hold of my breast. I pushed him away and said "no". He then said "only one" and reached around and tried to put his arm inside my T-shirt. I once again pushed him away and said "no". At this point, I left the building and proceeded to walk to my car. He then followed me and said "I am very sorry, I am sick". At this stage, I was seated in my car. He then tried to pull me out of the car to direct me back to the restaurant. I said to him "No, I can't". He then said "Don't tell your daughter" (my daughter JKL is 17 years old and also worked at the restaurant). He continued to try to convince me to stay and I said to him "no I am going." He then said just tell your daughter you are going shopping". (She was working in the restaurant in the kitchen at this stage). He then said "I will give you $1000." I told him "no" and drove off. I did not return to work for GHI after this date.

Whilst working at the DEF restaurant, I borrowed $10,000 from GHI that I was repaying him out of my wages. After leaving, I asked him how I could repay him and he constantly asked me to return to work. I told him that I was not comfortable working with him after what had happened. He denied what had happened and said he didn't understand what I was talking about. He was very angry that I would not return to work to him. I told him that as his daughter speaks very good English, I could explain to her why I could not return to work for him. He got very angry at this point and told me that he would kill me if I did that. I was very frightened at this point and so I got an AVO from the police to protect myself from him.

7 The complaint form from the ADB then asks "What would you like to happen to sort out this complaint?" In response ABC has written "financial compensation."

8 In her oral evidence ABC was consistent with the account provided in the complaint to the ADB. In her oral evidence and cross examination she raised the following additional matters.

(1) She said that she thought that GHI was her employer and he would pay her by giving her an envelope with her pay in it on a weekly basis. She said she had paid off two weekly payments of $300 as at 31 July 2012. As at the date of hearing she had paid an amount of $5300 of the $10,000 loan. Another staff member, was usually responsible for ensuring that the tablecloths were washed and ready for service, so it was not normal for her to be asked to wash the tablecloths. However this staff member had been away at this time.

(2) She said that on 31st July 2012 she was wearing the restaurant uniform T-shirt with a jumper over it because it was cold.

(3) She demonstrated to the Tribunal how the touching occurred and elbowing GHI away as he made the second attempt to touch her breast.

(4) On the evening of 31st July 2012 she had gone home and feeling distressed, lay down and cried continuously. She said that she had rung GHI once after the incident to talk about how she could continue to repay the money and at this time he denied the incident occurred. She denied having told MNO when she saw her in the street that "I can get $200,000 for this." She said that she had allowed her 17-year-old daughter to continue to work in the restaurant because she didn't want others to know what had happened to her. She denied coming back to the restaurant speaking to GHI and demanding her job back. She said she had not paid back more money off the loan from 15 May 2014 because she had been sick and unable to work.

9 ABC told the tribunal she has seen a psychologist Catherine Waldron (whose report is exhibit E). She says that for some months after the incident she found it difficult to work because of her distress about the incident. She found some, though insufficient casual work in the town. She had moved to Sydney in search of more employment in 2013. She had found work in a large hotel.

10 The Applicant sought unspecified financial compensation in her complaint to the ADB. In her submissions to the tribunal she did not quantify any wage loss. She referred however to the distress the incident had caused her, as supported by her daughter's evidence and that of psychologist Catherine Waldron.

11 The Applicant also submitted that she did not want such an incident to occur again for anyone else.

The Respondent's case

12 The second Respondent, GHI, gave evidence on behalf of himself and the first Respondent. He denied that the incident had occurred at all. He says that the Applicant is motivated by the fact that she had borrowed money from him and that she did not want to repay it. His evidence is set out below.

Relevant Legislation

13 The complaint raises issues under the following sections of the Act, relevantly extracted:-

Section 22A: Meaning of "sexual harassment"

For the purposes of this Part, a person sexually harasses another person if:

(a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the other person, or

(b) the person engages in other unwelcome conduct of a sexual nature in relation to the other person,

in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated.

Section 22B - Harassment of employees, commission agents, contract workers, partners etc.

(1) It is unlawful for an employer to sexually harass:

(a) an employee, or

(b) a person who is seeking employment with the employer.

(2) It is unlawful for an employee to sexually harass a fellow employee or a person who is seeking employment with the same employer.

(3) It is unlawful for a person to sexually harass:

(a) a commission agent or contract worker of the person, or

(b) a person who is seeking to become a commission agent or contract worker of the person.

(4) It is unlawful for a commission agent or contract worker to sexually harass a fellow commission agent or fellow contract worker.

(5) It is unlawful for a partner in a partnership to sexually harass another partner, or a person who is seeking to become a partner, in the same partnership.

(6) It is unlawful for a workplace participant to sexually harass another workplace participant at a place that is a workplace of both those persons.

(7)...........

(8)............

.

(9) In this section:

"place" includes a ship, aircraft or vehicle.

"workplace" means a place at which a workplace participant works or otherwise attends in connection with being a workplace participant.

"workplace participant" means any of the following:

(a) an employer or employee,

(b) a commission agent or contract worker,

(c) a partner in a partnership,

(d) a person who is self-employed,

(e) a volunteer or unpaid trainee.

(10) ..........

Section 53 - Liability of principals and employers

14 Section 53 is set out in full below. Essentially it makes an employer or principal liable for the acts of its employee or agent.

The Hearing

15 At the hearing GHI confirmed that the proprietor of the DEF restaurant was his wife PQR. GHI said he had power to make decisions and ran the restaurant day to day. He employed the kitchen staff and had employed ABC and her daughter JKL. GHI said that his wife PQR was aware of the matter and that he and his wife both made decisions and he was empowered to make decisions on behalf of the business. The tribunal noted that the ADB had written to the proprietor of the restaurant setting out the complaint on 5 September 2013. There were letters on file advising PQR of the complaint and hearing in NCAT. The hearing proceeded on the basis that ABC was employed by the business DEF restaurant. GHI was employed as a cook at the place of business - as set out by the legal representative of the second Respondent at tab three of the President's report. Further the proprietor PQR had been informed of the hearing but had elected not to submit any evidence or to appear at the hearing.

Evidence of JKL

16 JKL is the Applicant's daughter. She had provided a statutory declaration dated 11th February 2014 which was Exhibit 2. This stated the following. She is now a full-time student at Monash University. She had been an employee of DEF Restaurant between June 2011 and July 2012. At that time she was in final year at school. GHI had offered her shifts in the kitchen to assist her with her finances.

17 She stated that on the night of 31 July 2012 she was working together with GHI, his nephew and her mother in the kitchen. STU and VWX were in charge of the dining area. She was unsure whether STU's mother MNO was working that night. She said that her tasks included cutting up onions, preparing other vegetables and folding and washing up the tablecloths if they had not been washed the night before. It was not unusual for her or her mother to be in the laundry after arriving.

18 She was preparing some ingredients on the night of 31 July 2012 and her mother went to the laundry to wash the remaining tablecloths from the previous night. GHI usually checks on how the staff fold and wash the laundry to make sure that it is done properly. A minute after GHI left the kitchen, her mother suddenly came back into the kitchen and said to her sternly "I will be back" and stormed off. JKL thought her mother sounded distressed. She had no idea what had transpired. JKL continued with her job and GHI entered the kitchen again about five minutes after her mother had left. He was looking uncomfortable and sweating. He later told JKL that her mother had gone shopping and would be back. He looked distressed. Her mother did not return and JKL felt irritated that her mother had not returned as they were busy.

19 When JKL's shift ended, her mother called her and told her to come to her car. JKL said that her mother looked angry and did not respond when she asked her mother why she left so suddenly. That same night when JKL was in the lounge room watching television her mother came out of her room crying and told JKL about the incident. JKL said that her mother told her that while she was folding up the tablecloths GHI came up to her and he suddenly reached out and grabbed her breast. She took his hand off her breast and said "no" He told her that he wanted to do it just once and she firmly said no. After that he said sorry and told her that he was sick. He had run after her and told her not to say anything to JKL and that he would pay her $1000 to come back and work. Her mother said she felt betrayed, violated and shamed. She was embarrassed and did not want to tell anyone about the incident. Her mother had told JKL not to tell the other employees at the restaurant. She should tell them that she was sick and could no longer work.

JKL's oral evidence

20 JKL's oral evidence was largely consistent with her statutory declaration of 11th February 2014. In addition and under cross examination she said the following.

21 On the night of 31 July 2012 she had been rostered by GHI to work in the kitchen. She said that VWX and STU were at the front of the restaurant when she came in. She was facing the doorway of the kitchen and saw her mother go to the laundry. She did not know why. She saw GHI follow her mother to the laundry but could not see inside the laundry from the kitchen. She said that GHI had followed her mother ABC out of the laundry. She did not know what had happened but knew that it was something that was not good.

22 She had never had any bad experience working at the DEF restaurant and had mixed feelings about her mother's complaint as she had thought that GHI would never do anything like that. She had already agreed to work a few extra shifts at this time but then told GHI the following week that she would not continue working.

Report of psychologist Catherine Waldron

23 Ms Waldron provided a report dated 11th of February 2014. She was not able to be present at the hearing. She had talked with members of ABC's family by telephone had interviewed ABC for an hour and half on 30th January 2014 for the purposes of providing a report.

24 Ms Waldron reported that ABC had talked about the matter to get GHI to acknowledge and take responsibility for his actions. Her motivation was to prevent GHI from repeating the sexual harassment. She said that the sexual harassment led to significant relational conflict between ABC and her husband. GHI's actions led to the loss of friends and work, embarrassment and expense. ABC is still experiencing severe levels of psychological distress, depression, anxiety and general stress.

The Respondents' Case

25 GHI gave evidence with the assistance of an interpreter. He said that the DEF restaurant was owned by his wife PQR and that he was the chef. He said that he and his wife both made decisions. He would determine who would be rostered to work in the kitchen while MNO would roster the front of house staff. He said that ABC had been employed for one half years, washing dishes, cutting vegetables and working as a kitchen hand. In winter her hours were five - nine pm, while in summer her hours were five thirty to nine thirty pm.

26 ABC's tasks between five and five thirty pm in winter were packing, cutting up vegetables and assisting with kitchen preparation. Five to seven pm is the busiest time in the kitchen. He was under pressure then as the chef and as the person running the business.

27 On 31 July 2012 he was working in the kitchen with his nephew, ABC and her daughter JKL. MNO was at the front of house. When asked whether or not he had asked ABC to wash the tablecloths he said emphatically:

"That's impossible. From five to seven pm is the time for making money!"

28 He denied asking ABC to wash the tablecloths or following her into the laundry area. He said he didn't have time to do this because he was busy cooking dishes. He said that he hadn't seen ABC that night. He did not know why JKL was working on that evening. He noticed between five thirty and six o'clock that they were short someone in the kitchen. He went outside the front of the restaurant to look for ABC who was near her car. She said she was going to Woolworths to do her shopping. He told her he was short a lettuce and asked her to pick one up for him. When he saw ABC she seemed angry. He had lent her $10,000 in the previous year and had been asking her to repay it. Two weeks prior to this occasion she had agreed that $300 should be deducted from her weekly wages. She did not tell him that she would not be returning when she left the restaurant on 31 July 2012.

29 He denied grabbing ABC's breast and any other inappropriate behaviour. He said that three weeks later, ABC came into the restaurant saying that she wanted to come back to work. She had previously been working seven days. By this time he could only give her five nights a week because in the interim somebody else had started to fill in. ABC then returned two or 3 times to the restaurant asking for her job back. He asked her for the money that she owed him but she said she didn't have it. He was surprised to receive the application for the AVO from the police approximately a month later. He instructed solicitors and agreed to the AVO but he really didn't understand what it was about. He agreed that since this time ABC had paid back approximately half of the money. When asked why ABC had not returned to the restaurant after 31 July he said her daughter JKL had told him that ABC was sick. He had told her daughter that he would keep ABC's job open for her for one month.

Statement of MNO

30 Ms MNO made an undated statement which was received at the tribunal on 4th March 2014. She said she was a casual employee of the DEF Restaurant and had been working there for approximately 8 years as a waitress and doing front of house work. She had worked closely with GHI and he had never demonstrated any inappropriate behaviour to her. She said the restaurant and its staff had been like a happy family. She said she was working on the evening of 31 July 2012. She had had day surgery in the week before and she had been back at work since the Monday after the surgery. She particularly remembers the occasion because ABC brought her 17-year-old daughter JKL to work with her. JKL was not meant to be working on this particular night. She thought it was odd. She said that there was no shortage of staff as GHI's nephew was working in the kitchen and there was no need for JKL to be working that night. She said that the commencement of the evening shift is generally very busy as staff prepare the food. Tablecloths are always washed at the end of the evening shift - usually around eight thirty to nine pm. They would not be washed at five thirty pm on a Tuesday as the restaurant does not do lunchtime services on Monday or Tuesday. It would not have been possible that ABC was washing tablecloths from the day service. She remembered seeing ABC leave the restaurant on the evening of 31st of July 2012. ABC did not appear anxious or upset and she had left within a short period of arrival. She did not see GHI leave the restaurant after ABC. ABC's daughter, JKL had told her that her mother was sick. She did not recall GHI entering the laundry area at around five thirty pm. She did not think it likely that ABC would have been wearing a T-shirt as it was the middle of winter and the kitchen area is very cold.

31 She agreed that she rostered the front of house staff - but not the kitchen staff. She had seen ABC in the street after the 31st July 2012 when ABC had said to her "I can get $200,000 for this." She had also seen ABC angrily enter the restaurant one night late after the dinner service and stride into the kitchen to see GHI. She did not hear what they spoke about.

Applicant's submissions

32 The Applicant submitted that the tribunal should find that the sexual harassment had occurred. It consisted of the touching of the Applicant's breast in the laundry and then a further attempt to touch the Applicant's breasts once the Applicant had very clearly indicated the behaviour was unwelcome. The tribunal should find that immediately after the attempted touching of the Applicant's breasts in the laundry the respondent GHI had offered the Applicant one thousand dollars not to complain about the matter. The Applicant had returned to the restaurant to work out how to repay the outstanding amount of the loan. She was not motivated therefore by the fact of the outstanding loan to make a complaint. The Applicant's daughter confirms that her mother had gone to the laundry and had returned from the laundry distressed. The Applicant's daughter also confirms the Applicant's account of events given on the evening at home. The Respondent had acknowledged at one point that he followed the Applicant into the laundry. At first the Respondent had told staff that the Applicant had gone shopping but later had said that she was sick. The Applicant had tried to find other work and had obtained some casual work in the town. However she was obliged to move in order to obtain continuing work. The report of Catherine Waldron, psychologist had attested to the Applicant's distress and the impact it had upon the Applicant's relationship with her family. In these circumstances the Applicant sought damages against each of the Respondents - restaurant DEF and its proprietor PQR and the Respondent GHI.

The Respondent's submissions

33 The Respondent GHI strenuously denied any inappropriate behaviour and considered that he had been a victim in the matter. There was a very close alignment between the evidence of ABC and that of her daughter JKL. In these circumstances the tribunal should give very little weight to the evidence of the Applicant's daughter, given the opportunities for them to talk at length about what the Applicant alleged had occurred.

34 GHI denies that he went to the laundry and that he touched ABC on her breast or attempted to do this a second time. The Respondent noted that the psychological report relied entirely on the version provided by ABC. Further the psychological report was very general and the Respondent had not had the opportunity to cross-examine the psychologist. There had been no quantification of damages from the Applicant.

Consideration

35 The standard of proof required is set out in section 140 of the Evidence Act NSW.

Section 140 Civil proceedings: standard of proof

(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:

(a) the nature of the cause of action or defence, and

(b) the nature of the subject-matter of the proceeding, and

(c) the gravity of the matters alleged.

36 The Applicant submitted that the tribunal should find that the conduct of GHI had been substantiated, and that it falls within the definition of "sexual harassment" in s 22A, of the Anti-Discrimination Act.

37 As set out above, the Respondent submits that the allegations by the Applicant, are false and motivated by a desire by the Applicant to avoid her debt to GHI. The tribunal needs to weigh the factors on each side, including the impression of each witness giving evidence, and make a finding of fact as to whether each matter occurred. Once a finding of fact has been made, it must be considered, as a matter of law, whether each fact falls within the definitions of sexual harassment.

38 Section 22A requires that the Respondent:-

a) made an unwelcome sexual advance; or

b) made an unwelcome request for sexual favours; or

c) engaged in other conduct of a sexual nature in relation to the applicant, and

d) the advance, request or conduct was such that a reasonable person, having regard to all the circumstances, would have anticipated that the applicant would have been offended, humiliated or intimidated.

Approach to Fact Finding

39 Given the strong conflict in the evidence of the Applicant and the Respondent, the tribunal must carefully assess and weigh the evidence in making findings as to whether the Applicant has established, on the evidence, to the requisite standard of proof, that the sexual harassment occurred. The tribunal has adopted the approach of a previous tribunal in the matter of Franks v Marco's Italian Gourmet Cafe Pty Ltd & Anor [2004] NSWADT 87 at paragraph 28, in its fact finding. That matter also dealt with a complaint of sexual harassment. The approach of the tribunal in that matter is set out below.

40 In assessing the evidence, the tribunal must have regard to the reliability of the evidence having regard to its overall consistency, or its consistency with other available information. The tribunal also considers the plausibility of each party's account.

41 In assessing the Applicant's evidence, the tribunal has given significant weight to the fact that the Applicant has consistently said, since the time of her departure from the work place, that the sexual harassment occurred - This, in the tribunal's view, lends some support to a conclusion that the Applicant is giving a true account. However, the tribunal must assess and weigh all the evidence in the proceedings.

42 The tribunal sets out below the matters it has considered in coming to its findings.

The demeanour and attitude of each of ABC and GHI.

43 As parties to the proceedings, their oral evidence was carefully observed. ABC gave evidence in a calm and believable way. She appeared to have been adversely affected, both by the events at the restaurant, at her car and by other factors, such as the subsequent marriage problems and the problems she has had finding employment since leaving DEF restaurant. It is considered that, once the other factors affecting the evidence are filtered, she is a witness of truth.

44 GHI was emphatic in his denial of the allegations of touching both in the laundry and at the car. However the tribunal found his explanation of the events confusing and improbable.

45 ABC's "complaint" made to her daughter JKL on the night of the 31st July 2012, shortly after the incidents in the laundry and at the car was consistent with the complaint made to the ADB and before the tribunal. JKL related the matters raised by her mother with her on the night of 31stJuly 2012 in her statutory declaration of 11th February 2014 and in her evidence before the tribunal. Again these accounts were largely internally consistent and consistent with ABC's account. JKL's evidence was calm, and measured. The tribunal found JKL to be a credible witness.

46 MNO gave credible evidence. However she was not a witness to the events in the laundry or at the car on 31st July 2012. Her evidence about the subsequent events to which she was party did not bear upon whether the incidents alleged on 31st July 2012 in the laundry or at the car, occurred.

47 There were no witnesses, however, for much of the alleged sexual harassment and the Tribunal is left with the competing stories of the parties.

48 The tribunal observes that the plausibility of the Applicant's account is furthered by the medical evidence - this is because the medical evidence (detailed above) indicates that the Applicant has experienced and/or is experiencing mental health symptomatology which would be consistent with her account of experiencing sexual harassment in the workplace. However, such evidence is not conclusive that the sexual harassment as alleged by the Applicant occurred, as Ms Waldron only indicates that the symptoms are consistent with the Applicant's self-report of experiencing sexual harassment.

Findings of Fact

49 Taking into account all of the above, the Tribunal makes the following findings of fact:

(1) ABC was employed at DEF restaurant by GHI. GHI acted as her employer.

(2) GHI was also an employee of the DEF restaurant.

(3) ABC borrowed an amount of $10,000 from GHI.

(4) Prior to 31 July 2012 ABC had repaid an amount of $600 being two payments of $300 a week to GHI.

(5) On Tuesday, 31 July 2012 at around 5 o'clock, ABC arrived at work wearing her uniform T-shirt with a pullover on top. Within a short period of time GHI asked ABC to wash the tablecloths. GHI followed ABC into the laundry room. The laundry room was not visible from elsewhere in the restaurant. As she was washing the tablecloths, GHI reached around from behind ABC and touched her breast. ABC pushed his hand away and said "No!" GHI said "just one."

(6) GHI then tried to put his hand down the front of her top to touch her breast. ABC elbowed him away and said "No!" again. ABC then left the laundry, took her bag and said to her daughter "I'm going" and left the restaurant through the front door. GHI followed her to the car. He tried to get her to return to the restaurant by pulling her arm and then offering her $1000 to which she said "no". She left in her car. Later that night she told her daughter what had occurred in the terms set out in her complaint to the ADB and to the tribunal. ABC was highly distressed on that night by the event and has continued to be distressed by the event. The incidents in the laundry and at the car caused her to be unable to return to work in the restaurant. She continues to feel great distress.

50 The tribunal finds there was no education of staff undertaken by the management of DEF restaurant about sexual harassment in the workplace.

51 It is unnecessary for the tribunal to make findings about the alleged events subsequent to the events in the restaurant on 31st July 2012. The Respondent says that the subsequent events explained the Applicant's motivation for making a false complaint against the Respondents. The Respondent, GHI says that the subsequent events illustrate the issues around the Applicant's reluctance to repay the $10,000 loan to GHI. GHI's refusal to provide the Applicant with ongoing work for seven days a week also contributed to the making of a false complaint.

52 In the circumstances however the tribunal has accepted ABC's account of the events on the night of 31 July 2012.

53 The reasons for the tribunal accepting ABCs account are as follows.

(1) ABC has been consistent in her account of what occurred - first in her account to her daughter JKL given on the night of 31 July 2012. This was consistent with her complaint to the ADB and her evidence to the tribunal. She was not shaken under cross-examination.

(2) The tribunal accepts that ABC gave an account of what occurred to her to her daughter on the same night of 31 July 2012. The recency to the events of this account to her daughter supports the veracity of ABC's version of events.

54 The tribunal has considered the manner in which the witnesses gave evidence. Both ABC and her daughter JKL gave their evidence in a "matter of fact" style. They did not appear to attempt to embellish events to ABC's benefit. For instance when ABC was asked by the tribunal what she thought GHI meant by "just one" as written in her complaint, she said she didn't know. ABC has been paying back money to GHI, albeit by order of a court. She explained incidences of default by referring to the lack of work after she left the restaurant. The tribunal finds this to be a plausible explanation.

55 The tribunal did not find GHI's account of the events of 31st of July 2012 believable. He described it as "Impossible!" that anyone should be washing tablecloths between 5 and 6 PM. It was clearly not impossible that this should occur and was explained by the Applicant as the usual person responsible for the washing of tablecloths being absent.

56 GHI said he noticed that someone was missing from the kitchen staff and that he went outside the front of the restaurant to look for ABC. It was not clear why he volunteered this information or why he looked outside the front of the restaurant for ABC.

57 GHI did not offer an explanation as to why he accepted that ABC should be going to do her personal grocery shopping at a time which he said was the busiest time. It does not seem that he questioned ABC's failure to return with the lettuce that evening or her failure to return to the restaurant at all that evening. It does not appear that he enquired as to why she hadn't returned to work in the restaurant within the following days when she would usually have worked seven days a week and had done so for a year and a half.

Findings in Law

58 Accordingly the tribunal finds that the allegations made by ABC in relation to GHI's conduct in the laundry and subsequently at her car out the front of the restaurant on 31st July 2012 are made out.

59 The Tribunal finds that the behaviour in the laundry constitutes an unwelcome sexual advance with the first touching of her breast. It was clear that it was unwelcome because ABC said "No!" and pushed GHI's hand away. This conduct by a fellow employee is in breach of section 22B of the Act.

60 The second attempt at touching accompanied by the "Just one" request by GHI constitutes a second unwelcome sexual advance. ABC again responded "No!" and elbowed GHI away. This conduct by a fellow employee is in breach of section 22B of the Act.

61 The attempt by GHI to pull ABC from her car back to the restaurant, offering her $1000 was not conduct of a sexual nature. The tribunal considers it was motivated by GHI's desire to deny and cover up the incident.

62 In relation to the findings above, the Tribunal finds that the conduct of GHI in each case was such that a reasonable person, having regard to all the circumstances, would have anticipated that the Applicant would have been offended, humiliated or intimidated.

Section 53 vicarious liability

63 Section 53 of the ADA provides that

53 Liability of principals and employers

(1) An act done by a person as the agent or employee of the person's principal or employer which if done by the principal or employer would be a contravention of this Act is taken to have been done by the principal or employer also unless the principal or employer did not, either before or after the doing of the act, authorise the agent or employee, either expressly or by implication, to do the act.

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

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

(4) For the purposes of subsection (1), the principal or employer of a volunteer or unpaid trainee who contravenes Part 2A is the person or body on whose behalf the volunteer or unpaid trainee provides services.

64 No submissions were made in relation to the position of the First Respondent, the proprietor of the DEF restaurant. It is clear that the behaviour of the Second (personal) Respondent, GHI, where that behaviour is found to be sexual harassment, was conduct for which the First Respondent was vicariously liable. In Shellharbour Golf Club v. Wheel (1999) NSWSC 224, Studdert J held that (at par 33):-

"once it was established that the misconduct occurred in the workplace environment and the offender was ostensibly at the time acting in the discharge of responsibilities as agent for his principal, what he did was deemed to be done by his principal, unless the conduct was unauthorised by the principal either expressly or by implication."

65 As GHI was presenting as the principal of DEF Restaurant, it would be difficult for him to submit that his conduct was unauthorised or that he was not acting in the discharge of his responsibilities to the First Respondent. Accordingly, the Tribunal finds that the First Respondent is vicariously liable for the conduct of the Second Respondent, GHI.

Remedies

66 ABC did not provide clear evidence as to any wage loss she said that she had suffered as a result of not being able to return to the restaurant. The tribunal understands that ABC may have obtained casual work in the town and then a year ago moved to Sydney to look for work. However there was insufficient evidence before the tribunal for the tribunal to make any award relating to economic loss.

67 ABC gave evidence of her own distress at the events of 31 July 2012. This was supported by her daughter JKL's account of her mother's distress on the evening and to her continuing concerns. The report provided by Ms Waldron indicates that she had talked with members of ABC's family by telephone and they had all noted her continuing distress and anxiety as a result of the assault.

68 The tribunal notes that it is alleged that the assaults occurred only on one evening. Otherwise there were no allegations about the nature of the workplace environment. No evidence was provided by the Respondent that there had been any education of staff about discrimination principles or appropriate behaviour in the workplace.

69 The Applicant worked for the Respondents for a period of 18 months. The conduct found to be in breach of s 22B consists of two acts of unwelcome sexual advance to the Applicant. The Tribunal acknowledges that the Applicant was distressed by the advances, such that she could not return to work in the restaurant. The conduct falls in the low to middle point of the spectrum of sexual harassment allegations found proven in this tribunal.

70 In Caton v Richmond Club Limited [2003] NSWADT 202, the Tribunal found that the respondent was vicariously liable for the acts of an employee who physically harassed a female employee, over a period of a few months. There was evidence in that case of psychological effects of the harassment. In that case, the applicant was granted $15,000 damages. It can be seen that, given the $40,000 damages limit of the Tribunal at that time, the range of damages for minor or minimal breaches is quite low.

71 The Applicant in this case points to a number of factors going to damages. They include the fact that she made it clear to GHI that his advances were unwelcome - both at the time and shortly after. She had stress symptoms and she had difficulties finding alternative employment.

72 The tribunal accepts from Ms Waldron's uncontradicted report that there is a causal link between the conduct of the Respondent and the current stress symptoms of the Applicant.

73 The Tribunal awards the sum of $5,000 to the Applicant against each of the Respondents, GHI and PQR as proprietor of the DEF restaurant, for the breaches made out by her of the Anti-Discrimination Act. That is a total of $10,000.

74 In accordance with the practice of the tribunal, the tribunal makes no order as to costs.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar

Decision last updated: 16 September 2014