Kiel v Weeks [1987] HREOCA 3 (27 November 1987)

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

SEX DISCRIMINATION ACT 1984

NARELLE KIEL v GARY JOHN WEEKS

ComplainantRespondent

27 November 1987

Cairns, Queensland

REASONS FOR JUDGMENT OF THE HON JUSTICE EINFELD (President)

Between 26 March 1986 and 15 October 1986, Narelle Kiel ("the complainant"), then 19 years old, was employed by a business partnership known as G.W. Pest Control. This partnership consisted of Gary John Weeks ("the respondent") and his wife Joan, although it was essentially the respondent's business and Mrs Weeks had nothing of substance to do with the conduct of the business. The work which the complainant was required to do in this employment was office or clerical work, as well as domestic work in the home of Mr. and Mrs. Weeks, which adjoined the office of the business. The Weeks had three children under twelve.

At the time her employment commenced, the complainant was unemployed and was receiving unemployment benefits. Her employment by the respondent's business came about through a direct approach to the complainant by reason of a prior association of the respondent with the complainant's father or family, but her salary was subsidised by the Commonwealth Government under its then existing unemployment assistance scheme. The hours of work were 8 am to 4 pm, Monday to Friday. As Mrs Weeks worked in a retail store in Cairns, she had mostly left home by the time the complainant arrived at work. On the other hand, the respondent worked from home and although he was at customers' places during most of most days, he had more contact with the complainant than his wife. This is also because it was part of the complainant's duties to take calls from customers seeking pest control services and to do other work directly related to the business and its conduct.

Although Mrs Weeks' mother, who was living with the couple at the time, is said by Mrs Weeks to have exercised whatever supervision of the complainant's domestic work was required in the initial stages of the complainant's employment, Mrs Weeks' mother was not called as a witness, and the complainant did not mention the mother at all in this connection and was not cross-examined on this alleged supervision at all. In addition, Mrs Weeks took some holidays in June 1986, and although she says that shortly after these holidays she first commented adversely to the complainant on the quality of her domestic work, she gave no evidence of expressing any criticism of the complainant in this period or even of making any adverse observations in the holiday period itself on the quality of the work. The adverse comments are denied by the complainant. If they occurred at all, I do not believe that they were uttered before 24 July 1986. It is clear that at all times the complainant was fully trusted by the respondent and Mrs Weeks with money, tax stamps, access to jewellery, and during a holiday which the family took at one point, with the house and the business itself. It is thus virtually common ground that from the commencement of her employment in March up to 24 July 1986, the complainant performed her duties competently and without objection on either side.

The complainant alleges that on 24 July 1986, while carrying out her duties, the respondent came up behind her, placed his hands around her body, pulled her towards him and hugged her. She says that he rubbed his arms against her and kissed her on the back of the neck. It is not entirely clear to which parts of the complainant's body the respondent's arms and hands went, but I was left in no doubt that these were extensive physical contacts. According to the complainant, these advances were unwelcome, unrequested, unencouraged and unprovoked. The complainant says that they substantially discomforted her and caused her to report them to the Manager of the Commonwealth Employment Service, Cairns, who in a letter corroborates the report. She says that she also told her mother, but her mother did not give evidence. Although the Manager of the Commonwealth Employment Service says in his statement submitted in evidence that he made an appointment to see the respondent, which the respondent agrees is the case, the respondent says that his understanding of the reason for the appointment was to discuss the needs of the Commonwealth Employment Service to control pests. It is not now clear what pests needed control and pest control is not mentioned in the letter. As the appointment never occurred and as Mr. Weeks did not give evidence, I have no way of deciding that question finally, but it seems that pest control by the Commonwealth Employment Service is a fairly unlikely reason for this appointment, either in fact or in the respondent's mind. Why else would the respondent reject or ignore an offer that he be paid to control the Commonwealth's pests?

This occurrence of deliberate physical contact is comprehensively denied by the respondent who says that the only time he touched the complainant was on one occasion when she was despondent because of the possibility that her sister had cancer. On this occasion, he says, he put his arm or arms around her for comfort. In my view, this incident of comforting, if it occurred, could not have been mistaken by the complainant for the 24 July event of which she complains.

The complainant says that there were other sexually loaded incidents during her employment by the respondent. Firstly, there were occasions when sexually explicit remarks were made by the respondent to the complainant's female friends visiting the respondent's home or office with his permission. on one occasion he was in a position to look up the dress of one of these women and did so. These allegations are denied by the respondent. Secondly, the respondent presented the complainant without invitation or request with a pornographic video he had hired for himself and his wife, placed it in the video cassette recorder, showed the complainant how to operate it, and invited her to do so. She says that she knew it was 'R' rated and turned on the machine, but did not know and was shocked to find that it was pornographic. She immediately turned it off and rewound it. This allegation is in essence admitted by the respondent, and the respondent sees nothing wrong with it even today. He explains his bland reaction with a revealing observation about "how surprising it is what young girls will talk about". Thirdly, the respondent allowed the complainant to be exposed to a sexually explicit novelty of a thermos flask from which an erect penis pops out on opening. He also admits this allegation, and says that his response to her complaints about her continued embarrassment at this object was to the effect: "What are you worried about? It won't jump out at you. "

The complainant says that the 24 July event and these other occurrences disturbed and distressed her. She needed the work because she needed the salary to meet her expenses, but her interest in her work fell off, perhaps even markedly. She suffered physical as well as emotional symptoms and upsets. She did her best to stay away from the respondent, at least when no-one else was around.

On 15 October 1986, the complainant says that she was seated upstairs in the respondent's house having lunch. She says that while doing so, the respondent came up, Kneeled down beside her, took hold of her hands, put his hands - as she described it - 'everywhere' - all over her, rubbing his hands up and down her back and neck, her breasts and other parts of her body. She alleges that she would like to go back to work. This was a reference back to an instruction the respondent is said to have given her on 24 July that if she wanted him to stop anything he did to her, she should tell him to go back to work. On the 15 October occasion, he did not immediately do so, but then asked her, as she says, where her 'spices' were, to which she answered - without a knowledge of what he was talking about with the use of the word 'spices' - that she did not have any spices. She says that the respondent stood in front of her, obviously with an erection, and asked her if she wanted a pay rise. She says that she answered in the negative. The complainant then alleges that the respondent went downstairs to the office and sat at her desk at which she did her office work. She, who had office work then to do, and believing that he may have left, went downstairs to the same office. At that point, the story continues, the respondent pulled the complainant onto his lap and asked her, so she says, "Where are your herbs and spices?" She is said to have said, "I don't like what you are doing; I'd like to go back to work." The complainant says that all these happenings were unrequested and unwelcome. The respondent is then said to have left, at which time the complainant rang her mother who told her to 'get out of the place'. She immediately left her place of employment and went back to the home of her parents, who on being told what had occurred, would not let her return to work.

The respondent says that no part of this conduct occurred. He says that the complainant said nothing to him, nor did her father when the father telephoned the respondent later in the day to tell him that the complainant would not be returning to work. This the complainant says is true, and was motivated by her request to her father not to mention it when he telephoned.

The complainant did not give evidence in relation to one aspect of the event of 15 October 1986, earlier supplied to the respondent and the Commission in written particulars of the advances. In those particulars, the complainant alleged that the respondent, when he forced her to sit on his lap, had said to her: "Would you like a big bonus?" I do not believe that this is a significant omission in terms of testing credibility.

Section 28(1) of the Sex Discrimination Act 1984 ("the Act") declares that it is unlawful for an employer to harass sexually an employee. Subsection 3 of section 28 says that sexual harassment includes making an unwelcome sexual advance or an unwelcome request for sexual favours or engaging in other unwelcome conduct of a sexual nature in relation to the employee. By subsection 3(a) it is necessary that the employee has reasonable grounds for believing that rejection of the advance, refusal of the request or the taking of objection to the conduct, would disadvantage the employee in some way in connection with that person's employment or work, or possible employment or work. Alternatively, subsection 3(b) requires that as a result of the employee's rejection of the advance, refusal of the request or taking of objection to the conduct, the employee is in fact disadvantaged in some way in connection with his or her employment or work or possible employment or work. Subsection 4 of section 28 says that a reference in subsection 3 to conduct of a sexual nature in relation to a person, includes a reference to the making to, or in the presence of a person, of a statement of a sexual nature concerning that person, whether the statement is made orally or in writing.

The circumstances related by the complainant, if believed, clearly make out a case of sexual harassment in employment under section 28. I am quite satisfied that the complainant is essentially speaking the truth about the events related in her evidence. Though young and clearly under stress, she was unmoved by skilled and experienced crossexamination. On the other hand, the respondent and, to some extent, his wife were glib, and bordering on the trivial, about important allegations which required answers and considerations. I cannot and do not accept the respondent's comprehensive denial and the resultant conclusion that the complainant has invented the whole story. She was not cross-examined to establish a real motive for such a conclusion.

The effects on the complainant's life by these events have been devastating, almost fatal. Her long-standing intimate relationship with her boyfriend was fundamentally shattered, her general enjoyment of life and social relationships were almost destroyed, and she became significantly, if not deeply, depressed to the point where she tried recently to take her own life. Whilst no doubt not all of these reactions and responses were directly due to Mr. Weeks' actions and words, I do not doubt that substantial parts of them were. In this respect, I accept the expert evidence of Ms Boyle, a significantly impressive psychologist who gave evidence, that it is inconceivable that she would have invented these responses or suffered so strongly for imaginary or insubstantial reasons. It is also inconceivable that she would have peremptorily left her job for at best an uncertain future and had her father call to say she would not be returning, if these causative events had not occurred.

It is not to the point that another woman might not have reacted as the complainant did. The complainant is a single human being. She is entitled to be treated with dignity as an individual. She is entitled to her basic human right of freedom from physical and mental sexual harassment. She does not have to explain why she did not tolerate her employer's boorish behaviour or why she reacted to it in the way she did. She has only to establish that it occurred and that she suffered as a result. This, to my mind, she has amply done. I find the complaint substantiated.

I turn then to the question of damages. Section 81 of the Act provides that after holding an inquiry and finding a complaint substantiated, the Commission may make a determination which may include a declaration that the respondent should pay to the complainant damages by way of compensation for any loss or damage suffered by reason of the respondent's conduct. In the relief sought in a document filed with the Commission, the complainant seeks general damages and costs. By reason of the inter-connection between section 18 and section 83 of the Act, it is not possible for the Commission to award costs against the respondent in favour of the complainant, although under section 83, the Commission may in its discretion, recommend to the Attorney-General that assistance be given to the complainant in respect of expenses incurred by the complainant in connection with the inquiry.

At the hearing, there was added to the claim for compensation and relief sought, a claim for loss of wages sustained by the complainant as a result of her having to leave work by reason of the event on 15 October 1986. Her evidence is that effectively for seven months after ceasing that employment, she was unable to gain any employment at all because of her distress and depression. Then after seven months she obtained a job at a motel called the High Chaparral where she worked six days a week and earned substantially more than she had in the respondent's employment. She says that she worked at the motel for a period of about three months, that she only worked with women, and that she was well treated and enjoyed the work. At a certain period of time after she had been employed there, it appears as if her employer - perhaps her immediate boss - learned something about the events that had lost her employment with the respondent in the previous October. Whether for that reason or for other personal reasons between the employer and the complainant, she was dismissed from the High Chaparral Motel and has not worked since. She is now back on the unemployment benefit as she had been between the time her employment with the respondent ceased and the time when she started with the High Chaparral Motel.

By calculating her loss of earnings at the rate at which she was being paid when she was last employed by the respondent, and by deducting the unemployment benefit which she obtained between the time of leaving Mr. Weeks and the time of commencing work at the High Chaparral, her solicitor informed me that the complainant has lost $3,257 net. This figure was not challenged by the respondent. No claim is made for earnings lost since the High Chaparral employment ceased.

I am satisfied that a claim for loss of earnings is appropriate in this case, although I am of the opinion that the amount claimed is a little excessive. I have to take into account a number of factors, including the fact that the complainant's emotional state was no doubt contributed to by events other than those to which she was subject in the respondent's employment. The legal authorities which bind me in matters of this kind suggest that it is necessary to take a broad view in assessing the loss of earnings that should be granted in a case such as this. In my opinion, the appropriate amount for loss of earnings in this claim for which a declaration should be made, is $2,500.

I have already outlined some of the anguish which the complainant underwent as a result of the events which I have related. These are serious and disastrous effects. They had, as I pointed out, almost catastrophic effects on the life of a young woman. It is very difficult in such circumstances, to attempt to make a reasonable and fair assessment of the compensation that should be determined in such a matter. The Commission must hearken to the evidence from the psychologist, Ms Boyle, and the social worker, Miss Charnley, and from the complainant herself, that she is now recovering reasonably well from the effects that all these events had on her and that now, virtually a year after the event, she is very much better. She even says that she is re-establishing her relationship with her boyfriend and says that when this case is out of the way, she is likely to make further improvement. She has been counselled also to have additional counselling and other treatment. I am satisfied that those expectations and that optimism are likely to be correct.

In those circumstances, it seems to me that the proper award for general damages in the sense of pain, suffering, interference with the amenities and enjoyment of life, as well as injury to the complainant's feelings and the humiliation which she has suffered, is $3,000. For that reason, I make a declaration that the respondent should pay to the complainant damages, by way of compensation for the loss or damage suffered by reason of his conduct, in the sum of $5,500.