Bennett v Everitt & Whyalla Fish Factory [1988] HREOCA 7 (1 December 1988)

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

SEX DISCRIMINATION ACT 1984

TERRI MAUREEN MICHELLE BENNETT and

KATIE-LOUISE LAWSON

Complainants

and

F. EVERITT AND WHYALLA FISH FACTORY AND TAKE AWAY PTY LTD

Respondents

5 and 6 September 1988

Whyalla, South Australia

REASONS FOR DETERMINATION

OF THE HON. JUSTICE EINFELD

(President)

1. Introduction

On 9 September 1986, Terri Maureen Michelle Bennett, a single female then aged 19 years, complained of sexual harassment by Frederick Everitt (the respondent) both in a personal capacity and as director and joint shareholder of Whyalla Dish Factory and Take-away Pty Ltd (the company). His wife was also a director and shareholder of the company which was apparently Ms Bennett's employer in July and August 1986.

On 30 June 1987 Katie-Louise Lawson, a single female then aged 16 years, complained of sexual harassment by the respondent while in the same employment for some eight weeks at about the same time.

This inquiry is constituted under sections 57(1) and 59, and the claims are made under sections 14 and 28, of the Sex Discrimination Act 1984 (the Act). The hearing was conducted as a single inquiry under section 61 of the Act or as two inquiries heard together. A third complaint against the same employer was received from Barbara Kittel on 12 November 1986. This complaint was withdrawn at the commencement of the inquiry. The Commission was informed that the reason for the withdrawal off this complaint was the pregnancy of the complainant. The Act gives not wish it to proceed [s. 59(2)(a)].

2. The Complaints

The respondent was a male in his late forties. At the relevant time he was conducting the business of the processing and sale of fish and seafood products at Whyalla Norrie under the name of the company.

The premises consisted of a shop, adjoining work and office areas, freezers, toilets, a small apartment and a caravan. The business ceased operation on 1 June 1988.

2.1 Terri Bennett

The complainant Terri Bennett left school at the age of 15 years after completing the third year of secondary school. At age 16 she was employed as a cook on a station for some six weeks, and she worked voluntarily in a Christian Bookshop for 3-4 weeks. Ms Bennett was unemployed between mid 1983 and July 1986 when she commenced work for the respondent. She is the mother of two children born in 1983 and 1985.

According to her written complaint, the complainant commenced employment on 21 July 1986 and worked until 27 August of the same year. However, the precise dates of her employment are not clear. Her counsel said, and her evidence was, that she was only employed for about four weeks but this may have been mistaken, as she thought she could date the beginning of the employment as being about a week after her birthday (June 25) and its ending by reference to the Whyalla Show (last week of August). There is, however, no doubt that throughout the complainant's employment, she worked for three days per week, Monday to Wednesday between the hours of 4pm and 8 or 8.30pm. Her duties were serving customers and cooking fish and seafood in the shop at the front of the premises. The complainant alleged that the respondent was usually at the premises when she was working, often in an intoxicated state.

She asserted the following conduct by the respondent:

In her pre-employment interview by the respondent, she was asked whether she was on the pill and if she had a current boyfriend. The respondent gave no reason for putting the former question and explained the latter on the basis that he had had trouble with his other girls and their boyfriends'. She answered both questions.

On at lease one occasion during each f the three nights of the second week of the complainant's employment, the respondent touched the complainant on the buttocks and breasts and used some physical force to attempt to bring about a co-operative response. The complainant made clear her distaste for and rejection of this conduct by means such as pushing him away, using abusive language, and threatening to tell the respondent's wife about his behaviour. In the rest of her employment the declarations and explicit demonstrations of her rejection of this conduct. The complainant said that she felt disgusted and hurt by this behaviour.

On one occasion the respondent offered the complainant a sum of money to have sexual intercourse with him in his caravan. She refused.

On another occasion the respondent gave the complainant and two other females one unpacked condom each in the presence of other men, and in circumstances which he must have known were calculated to embarrass and distress the recipients. The complainant said that she was angered and disgusted.

On another occasion, at the respondent's request and as part of her employment duties, the complainant commenced to put a consignment of beer in the freezer. This place was approximately one metre wide by three metres long and had no lighting or window. The complainant first became aware that the respondent had followed her into the freezer when he grabbed her by the shoulders and arms as she was bending down to put the beer away. She turned around and he grabbed her shoulder from the front with one hand, whilst his other hand successively touched her on the crotch, buttocks and breasts. She pushed him away which she said was not difficult as the respondent was in an advanced state of intoxication. She ten left the freezer and walked into the shop. She did not say anything to the other girls as she was shocked, embarrassed and did not want anyone to know.

A few days later, the respondent again followed the complainant into the freezer, this time closing its door behind him, apparently leaving it dark. She was taking salads and fish from shelves in the freezer. As she turned around, he grabbed by the arms and shoulders and pushed her against the freezer wall. With his free hand he touched the front of her body. He then removed his penis from his trousers and tried to force the complainant to hold it. The complainant's response included kneeing him in the groin apparently causing sufficient pain to bring about her release. To leave the freezer, the complainant had to lift a latch on the door which was engaged. The complainant said that she ten returned to the shop and was followed by the respondent. he thereupon dismissed her, but she resigned virtually simultaneously.

This was a Wednesday evening, which was the end of that working week for the complainant in any event. It was thus the day she was due to be paid but Ms Bennett did not receive, and has never received, her pay for that week. it seems that no one has ever suggested or explained to Ms Bennett that employees have easily enforceable rights to receive pay for work performed. I shall return to this matter later. it will suffice for the present to observe that among the deprivations and miscreance apparently suffered by Ms Bennett and the hands of the respondent was also her serious underpayment for the whole period she worked.

The complainant said that the next morning or the morning after, between 1 and 2 am, the respondent went to her house in a highly intoxicated state. H sought entry but she held her foot against the door to prevent his doing so. When the complainant' boyfriend appeared, the respondent was enable to open the door and he walked into the house. Among other things, he said words to the effect that she was a good worker and he wanted her back. She refused to return to work.

2.2 Katie-Louse Lawson

This complainant was a single female of 15 years of age during the period of the employment by the respondent. She was still attending school at the time and this was her first job. The exact dates of her employment were not placed in evidence. She worked on Saturdays and Sundays between 8.00am and 4.30pm. She also often worked at the shop after school in a voluntary capacity, driven by a wish to be in the company of the respondent's nephew Kevin, who was a teenager and at the time worked in the shop. Ms Lawson's duties were serving and cooking.

Corroborating the assertion by the complainant Bennett concerning the respondent's regular intoxication while at work, the complainant Lawson made the following allegations in relation to the respondent's conduct:

During her pre-employment interview, the respondent asked the complainant whether she had a boyfriend and whether she was on the pill. The reason he gave for asking these questions was that he did not want his workers coming in pregnant. She said that she was shocked and embarrassed by these questions. She did not have a boyfriend and was not on the pill at the time, and told this to the respondent, in the obvious belief that if she did not answer, she would or may not have been employed.

On one occasion when she was alone in the cooking area, he walked up behind her and put his hand on her buttocks. Ms Lawson stated that she did not say anything as she was too scared.

This incident was repeated a couple of days later when she was washing dishes. She then asked the complainant Bennett to request the respondent to desist and to threaten to call the police if he did not. Ms Bennett did intervene with the respondent. There is no evidence of what Ms Bennett said to him but according to Ms Lawson's evidence, he did not again touch her.

On another occasion the respondent was walking behind the < and said words to the effect of: Your arse is moving a bit now. I think it's about time you had a man." She did not feel safe and hurried back to the shop.

The complainant was also one of the young women to whom the respondent d threw an unpacked condom in the presence of other males. The complainant alleges that the respondent suggested that they should all go down the back and 'have a bit of fun'. She said that she was shocked and upset.

On another occasion the respondent told the complainant and Kevin that they should go down to the caravan impliedly to have sexual intercourse. her evidence was that she responded: "You've got to be kidding."

On another occasion the respondent told Kevin in te complainant's presence to lift her arms into the air, grab her and run down te back with her for the implied purpose of a sexual encounter. When Kevin attempted to do so, the complainant grabbed hold of a door handle and pulled herself away.

The respondent asked the complainant on another occasion if she had ever 'had a man'. She said that she ignored him and walked away.

The complainant Lawson said in evidence that she subsequently resigned her position. She explained that the event which immediately precipitated her resignation was the sacking of another employee with

whom she was friendly, for apparently being absent without leave. However, a contributing factor to her decision to leave was that she had had enough of the respondent's behaviour.

These are thus two very serious complaints. One involves a young female of 15 years of age in her first job while still at school. The other is by a single mother of 19 years of age with two small children living on social security. Both were in need of employment and employment was very short in Whyalla. These matters would have made their actual, potential or perceived vulnerabilities very evident to their employer who, if the complainants' evidence is accepted, acted without regard or concern for, and in the teeth of, decency, proper behaviour and the law.

3. The Defence

The respondent did not attend the inquiry. The evidence revealed that the following steps were taken to effect service of Commission process:

(i) On 4 August 1988, the solicitors for the complainants wrote to the Commission to advise that they had been unsuccessful in their best knowledge, the respondent was in the Northern Territory.

(ii) On 15 August 1988, the Commission wrote to the last known solicitors for the respondent, Messrs. Reilly, Ahern and Kerin. A reply was received on 19 August 1988 to the effect that the Commission's letter had been forwarded to their client at his last known address.

(iii) On 16 August 1988, the Commission wrote to the Managing Director of the company at its registered address. The letter was returned to the Commission unopened.

(iv) The Commission placed advertisements in the Advertiser, an Adelaide newspaper, on 20 and 24 August 1988, and in the Whyalla News, a local newspaper, on 19 and 24 August. These advertisements, which are in evidence, gave details of the hearing date and location of these proceedings and stated that the respondent could obtain details of the claim by telephone the Commission reverse charges. He did not do so.

(v) On 19 August 1988, a letter was sent by certified mail to the occupier at the respondent's last known address. It was not returned.

(vi) On 19 August 1988, a letter was sent to the Manager of the company at its business address. That letter was also not returned.

(vii) On 22 August 1988 a further letter was sent by certified mail to the respondent at his home address. It was not returned.

The respondent did participate in a conciliation conference in March 1987 arranged by the delegate of the Sex Discrimination Commissioner. He also set out his defence to these claims in a letter received by the Commission as late as 11 August 1988. In this letter the respondent makes various allegations, all of which were put to the complainants n the course of the inquiry at the Commission's initiative. At the time of this letter, Ms Kittel's complaint had not yet been withdrawn. The

respondents' major claims and the complainants' responses were as follows:

"I would like to point out that two of these girls are related and the other is a very good friend of the other two".

In evidence the complainant Bennett stated that she was distantly related to Ms Kittel through her father. Ms Bennett and Ms Lawson are not related in any way. Ms Lawson stated that she first met Ms Bennett while in the company's employment and had known Ms Kittel only by sight before they met at work.

"I had trouble with all three girls at work. T. Bennet (sic) was sacked for smoking and bringing marijuana to work with her. B. Kittle(sic) was sacked because she was not attending work when she was supposed to. K. Lawson I had trouble with her sister when she was a welfare girl.

The complainant Bennett denies ever bringing marijuana to work and this denial was corroborated by the complainant Lawson. ms Lawson had been told by her sister that the respondent was a dirty old man, so described because he had allegedly behaved in much the same way towards the sister as he had towards Ms Lawson herself. As Ms Kittel did not give evidence, there was not evidence on the respondent's allegation against her.

The accusations the three girls have made all come from T Bennett (sic) who has been going around claiming she is going to get heaps and have the business closed down......... If these girls had a genuine complaint they should have proceeded with police action as I myself have had discussions with Detective Ryan of the Whyalla CIB and I gave him a tape recording of what Miss Bennett (sic) was saying and the advice I got from the Detective was that she was using the system for blackmail.

The complainant Bennett stated in evidence that she was unaware of any tape, had not been approached by the police and had never made any comments of a blackmail type. I observe that in any event, at the time the respondent's letter was apparently written, the business was already closed down for reasons unrelated to these complaints. it is also difficult to avoid the conclusion that any contact with the police initiated by the respondent was, and was intended as, a defensive manoeuvre in the event of any move by the complainants against him.

"These girls wasn't (sic) given condoms, they were given to my son and nephew. My nephew is half aborigine and he had just come back from Sydney and was suspected of having gonorrhoea. The condoms were given to my son and nephew to protect my son.

The complainant's accounts of this incident have already been detailed.

The evidence satisfies me that the respondent deliberately sought to avoid participation in this inquiry, including service of the relevant process. The cost to the public of this attitude has been prodigious. His display of legal, moral and civic responsibility is dismal. On the evidence, I am satisfied that he new of these proceedings but chose not to attend. Apart from the complainants' responses to the matters raised in his letter of answer or defence, I take his decision not to appear into account in assessing where the truth lies in these cases.

4. Criminal Offences

If accepted, much of the conduct to which both complainants were subjected clearly amounted to criminal assaults. Some of it, in particular the assaults in the freezer on the complainant Bennett, may well be sexual assaults under te Criminal Law Consolidation Act 1935 (SA), section 56 of which states:

"A person who indecently assaults another shall be guilty of a misdemeanour and liable to be imprisoned for a term not exceeding 8 years."

It is also an offence in South Australia to solicit sex if the place where it is done is a public place; if not, the respondent's behaviour in offering money to the complainant Bennett in return for sex may well amount to behaving indecently so as to offend or insult: see summary Offences Act 1953 (SA), is. 23 and 25. Both carry penalties which compensation for the victims of criminal behaviour: Criminal Injuries Compensation Act 1978 (SA).

It seems that the complainant Bennett has never brought, or been advised to bring, these occurrences to the attention of the police. If the police had been informed promptly, criminal proceedings could long since have been taken and the respondent properly punished for any crimes proved against him. The complainants could also have received compensation. With the consent of complainants, and with appropriate support as necessary, the prompt institution of summary or indictable charges against people behaving as alleged against the respondent is an important part of the community's armoury to prevent the deter sexual misbehaviour and to punish its occurrence. If the police are reluctant to pursue such charges, and there is no evidence before me that the South Australian police have any such reluctance, the Sex Discrimination Commissioner and other appropriate authorities should be informed so that action can be taken to ensure that complaints of this type by women are treated as are other allegations of law breaking.

I recognise that reporting such matters to the police may present, or be thought to present, considerable discomfort for women. However, there is simply no reason in principle why the conduct described in this case should not be bought to account with all the force which the law can command. As necessary, police forces should be encouraged to provide adequate facilities and support, including the services of specially trained female officers, to enable such complaints to be made and acted on. The Sex Discrimination Commissioner and her delegates can assist police forces in these respects. It ought not to be acceptable that criminal offices go undetected and unpunished because society cannot supply the necessary support mechanisms to enable their prosecution with the lease possible traumas for their victims. Otherwise, in this area, the exploitation of women by the power of men will be institutionalised even ore than at present. It should be remembered that sexual harassment inquiries by this Commission are only one, and by no means in cases such as this necessarily the most appropriate, means of doing so.

5. Wages Owing

The respondent paid these employees cash in hand. The complainant Bennett received $50.00 for 12-14 hours work per week. She received no remuneration at all for the last three days of her employment. The complainant Lawson also received only $50.00 for a total of 17 hours work each weekend. Neither complainant was ever asked to sign a wages book or given any wages documentation, group certificate or tax stamps sheet. At my request, evidence was produced of the award rates at the time. According to these rates, both complainants were entitled to receive much more than their actual pay - in the case of Ms Lawson, a 15 year old, the legal pay was more than double the pay she actually received.

These complainants have, and have always had, the right to bring an independent action for the recovery of these unpaid wages under section 15(1)(d) of the Industrial Conciliation andArbitration Act 1972 (SA). I was informed by counsel at the hearing that there i in South Australia a three-year time limit within which to make such claims. The problem now, according to the evidence, is that the respondent is apparently either bankrupt or without funds, his whereabouts are unknown, and the company may not be operating or have funds. The respondent is certainly no longer operating his former business, although if the company is still functioning, albeit with new directors and shareholders, it may be able to be sued for these monies. The Commission was further informed, however, that it is now too late to prosecute the respondent or the company for breach of the award, as the time limit is one year. This should not have been allowed to occur.

6. Wages and Taxation Offences

Because they were not told, and there were no wages or taxation records, the complainants did not really know by whom, in the legal sense required by the Act, for how long and between what dates they were employed. These are important facts for the presentation of cases of this kind. If there were any records available at the time of these complaints, there were certainly not obtainable after the respondent with out of business and left Whyalla. if there were no records, interviews conducted with the respondent and his wife by the delegate of the Sex Discrimination Commissioner during the investigation of these complaints, to which I will later come in more detail, should and would surely have revealed the true position. I was advised that these interviews were not made available to the complainants. There were not presented to the Commission. The main information obtained to identify the legal employer was through the efforts of the complainants' solicitor who was funded by legal aid to do work that should have been done at a much earlier stage in the investigation of the case. Industrial laws require the keeping of wage records and Arbitration Act 1972 (SA), s. 159. This company's apparent breaches of authorities to enable its prosecution.

Taxation laws required the deduction by an employer of tax from the gross wages of employees and its accountability to the Commissioner of taxation: Income Tax Assessment Act 1936, s. 221C(1)(a). On the evidence presented to me, it seems that the was not done in respect of the complainants' pay during their employment by the company. Taxation laws also require the keeping of business records: Income Tax Assessment Act, s. 262A. It seems that the company did not comply with

its statutory obligation in this regard as well. Again, the reporting of this matter would have enabled its prosecution. Yet it does not appear to have been reported. This is hardly the level and quality of service to which the complainants were entitled or which Parliament has prescribed for the protection of employees in such circumstances. The consequence has been the significant exploitation of these complainants, and their apparently being deprived of considerable sums of money due to them for more than two years. the role of conciliators under this legislation includes the obligation to make known to the parties alternative courses of action available and to recommend that they seek appropriate advice.

From the point of view of the direct administration of this Act, and the securing of the interests of these alleged victims of discrimination, the full investigation and reporting of this employer's possible lawbreaking as it affected the complainants, could only, and ought to have been designed to, assist the quest for a conciliated settlement of advised, assistance should always be made available to complainants in such circumstances.

7. Onus of Proof

In cases under this and similar Acts in Australia and overseas, it has previously been assumed or held that there is a strict onus of proof to be borne by the complainants. It is, in my opinion, likely that this was the intention of Parliament when enacting this legislation. This point was discussed in Erbs V Overseas Corporations Pty Ltd [1986] EOC 92-181 at 76,721 where I reviewed some of the cases which have previously expressed views on this subject. I then said of this Act as it then stood.

The Commission is an administrative, not a judicial, body which can be constituted by a majority of non-lawyers (sec. 60 of the Act). It 'holds inquiries' into complaints (sec. 59(1)); it does not conduct or constitute cases or trials. It may involve itself directly in attempts to settle or resolve complaints under inquiry and is obligated to try to do so if possible (sec. 73). It is not bound by the rules of evidence and it may inform itself on any matter by any means it chooses (sec. 77(1)(a)). It proceeds without formality, technicality or undue delay (sec. 77(1)(b)) and arranges its procedures accordingly (sec 77(1)(c)). It does not pronounce verdicts, judgements or decisions. It merely dismisses complaints or finds them substantiated. It does not make awards or orders; it merely makes determinations which are not binding on the parties (sec. 81). It does not enforce its findings and determinations or punish non-compliance therewith. These functions are performed by the Federal Court (sec. 82).

It seems to me unlikely that Parliament had in mind when enacting these provisions the strict imposition by the Commission of an onus of proof on one party, usually the moving party, as applies in true civil litigation. It seems to me more likely that the Commission's intended task is to try by all reasonable means at its disposal to discover and satisfy itself as to the fact, i.e. to inform itself on the

complaint as fully as possible, perhaps preferably per medium of the parties but if necessary an in appropriate cases through counsel assisting the Commission, with a view to determining the likely truth. I am not attracted by an interpretation of the Act which would provide the only potential alternative of having to arbitrate between opposing parties and determine complaints only on the issues raised and evidence submitted by strictly adversarial interests.

This alternative construction also seems to conjure up the possibility that a respondent could make an application, at the conclusion of the evidence for the complainant, that a complaint has failed and must be dismissed on the ground that there was no prima facie evidence of unlawful discrimination. I doubt that the Act was intended to be so construed.

The only relevant change in the Act since that case is that the Commission may now sit as a tribunal of one rather than three.

In The Australian Public Service Association V The Australian Trade Commission [1988] EOC 92-228, this view was further expanded in the context of a discussion of a number of overseas cases. I adhere to it now, and make these additional points.

Positive proof of discrimination on at lease some of the grounds covered by the Act will often be difficult for complaints. Erbs, a case of dismissal on the grounds of pregnancy, was itself a case of this kind. Decisions made in the secrecy of boardrooms or the minds of employers will rarely, if ever, be written down or find expression to the employee in directly discriminatory terms. Still less will they be exposed to the potential corroborative eye of a witness, especially as the most likely witnesses, fellow employees, may well entertain the fear of losing their own jobs at the hands of the same employer if they come forward to testify. A possible witness may also stand to gain personally by the dismissal of the complainant even on discriminatory grounds. This means that many discrimination cases (other than sexual harassment) have to be proved by comparatively weak circumstantial evidence, without direct or perhaps any witnesses and based only on an intuition or a deeply held if correct belief that there has been discrimination. It will, as in Erbs, often be met by a wall of denial from the people who primarily known by the respondents, not complainants - and complainants will, more often than not, have few means of being able to establish them. They will be even more disadvantaged if they are without funs or legal aid, as is not infrequently the case.

Parliament has provided no bias or presumption in favour of victims of sexual harassment or sex discrimination, merely a forum where they may present evidence to establish their cases. Following my efforts over the last two years to ensure that legal aid i readily available to qualified complainants of discrimination on the same basis as applies in other litigation, there has been some recent improvement in this regard. However, one factor n whether legal aid is granted, as communicated to me, is that if not voluntarily accepted by respondents, determinations made under this Act can only be enforced by complainants initiating and conducting proceedings for a second time, this time in the Federal

Court. This is not a valid reason for refusal of legal aid because an inquiry by the Commission is a compulsory prerequisite to enforceable relief. However, it would obviously be a more effective procedure if, as I have recommended on may prior occasions, discrimination complaints were heard by a Court with full powers of enforcement of its decisions. Not only would this avoid further tribulations for the parties, more adversarial confrontation, and additional cost and delay. Most significantly, it would remove the present opportunity for respondents and then to 'patch up', in the sense of re-constitute, their cases for the Federal Court proceedings, as occurred in Maynard v Neilson [1988] EOC 92-226.

This system perpetuate the power of employers which lies at the basis of all sexual harassment. It is completely unsatisfactory and leads to injustice. the existence of an onus of proof in these inquiries would produce an obligation on complainants to find and lead evidence which may simply not be available to them. It makes fact-elucidation on significant but often intuitive issues difficult. The lack of an onus of role as being inquisitorial rather than arbitral are therefore of significant assistance in the implementation of the legislation's goals. In my opinion, this was the intention of Parliament.

I therefore approach these cases on the basis that all the available material and inferences are to be examined regardless of whether the complainants themselves have actually led evidence on or argued the particular point. The intent of this exercise is to permit the Commission to satisfy itself as to whether complaints have been established, with minimal resort to legal technicalities, as Parliament has decreed. Obviously parties should present all the evidence readily available to them, including their own and other evidence able to be secured by summons or otherwise. this is in keeping with what the Courts to lead evidence, or as much evidence as is reasonably practicable, on the issues that party wishes to argue and promote in the case. Parties may also draw to the attention of counsel assisting the Commission any evidence they would see to be relevant but which is beyond their capacity to arrange or obtain. This is especially the case when an impecunious party is not granted legal aid. If possible, and subject to its relevance, counsel assisting will then try to ensure that this evidence is produced. I shall return to this matter later.

By definition employees will mostly be financially and, because of the discrimination or harassment in question, often emotionally less well placed to provide this evidence than their employers. There is thus an inherent imbalance between the material and evidential resources available to the parties. In my view, these facts and the resulting injustice to victims should be reflected in the legislation by reversing the obligations and responsibilities to lead the relevant evidence. In my view, the Act should therefore be amended to deem proved conduct or behaviour of a sexual nature in an employment situation to be unlawful, and dismissal of or other employment detriment to pregnant women to be discriminatory, unless the evidence satisfies the Commission to the contrary. Specific provisions requiring written reasons to be given by an employer who dismiss, demotes or fails to promote an employee, or where the employee resigns, alleging discrimination, as well as consequences for not doing so, may also warrant consideration. The

resulting simplification of this whole procedure would be considerable, without creating any manifest injustice to employers claiming to be wrongly accused.

8. Corroboration

Apart from the mutual support given by the complainants to the evidence of each other, there was no independent corroboration of the evidence given in this case. This is astounding given that the Commission was told of the huge number of interviews and contacts by the delegate of the Sex Discrimination Commissioner. For these cases, there is said to have been 161 different contacts, no doubt at considerable public expense. There were at least six visits of one or more investigators to Whyalla. The activity s said to have included interviews with the respondent and his wife. The complainants were apparently not supplied with the records of any of these interview and contacts, or any statements made. Certainly the Commission has not been permitted to see what was achieved by all this effort and expense. The complainants thus lost the benefit of the corroboration some of this material must surely have supplied. It did not cause or bring about the conciliation of the complaints. Ms Kittel's complaint was even withdrawn without a hearing. What then was the purpose of all this activity? What or whose use did it serve? If the complainant's written complaint is made available to the respondent and is placed in evidence, as it very properly is, as a means of ascertaining truth, so should the respondent's reply be suppled to the complainant and evidenced to the Commission. If a complainant's credibility may be tested against any inconsistencies in various accounts, the respondent should be subjected to no less a burden.

It is clear that the present inquiry is precluded from hearing evidence of things said or

done in the course of conciliation proceedings. Section 57 of the Act provides:

(1) Where the Commissioner

(a) is of the opinion that a matter cannot be settled by conciliation;

(b) has endeavoured to settle a matter by conciliation but has not been successful:

or

(c) is of the opinion that the nature of a matter 19 such that it should be referred to the Commission.

the Commissioner shall refer the matter to the Commission together with a

report relating to any inquiries made by the Commissioner into the latter.

(2) A report for the purposes of sub-section (1) shall not set out or describe anything said or done in the course of conciliation proceedings under this Division (including anything said or done as a conference held under this Division)

(3) Evidence of anything said or done in the course of conciliation proceedings under this Division

(including anything said or done at a conference held under this Division) is not admissible in subsequent proceedings this Part relating to the matter.

The obvious purpose of this wise provision is to permit the parties to speak and negotiate freely at the time conciliation is being attempted, making such admissions or concessions as they wish during 'conciliation proceedings' without prejudicing their positions at a later hearing. The section does not, however, prohibit the introduction into evidence of statements made by, or written or taped records of interview of, witnesses or parties during the investigation of complaints whether prior to or after attempts at conciliation.

As I have earlier said, Parliament has given this Commission the task as far as possible to discover the truth about complaints brought to it, not to play legal, tactical and forensic games with the parties or those investigating the case. To the best of the Commission's ability, complaints of discrimination will not be permitted to fall because the poser of employers to exploit by discrimination is extended to a capacity to keep evidence from the Commission which may be helpful to the elucidation of the truth, because employees or former employees do not know of it or are simply unable to find or extract it. Nor will complaints succeed merely because they are made. By one or other of the available means, all the evidence which bears upon the issues to be determined should be made available so as to permit this tribunal to make its decision on all the relevant material. This includes the information obtained in the investigation of complaints.

Of course parties who know of and have ready access to evidence which they do not call run the risk that the Commission may fail to be satisfied of the matters which are necessary for the result they sees. A respondent who knows of a hearing and does not attend faces a most difficult task in having a written account accepted. A complainant who without explanation falls to present obvious evidence or call relevant available witnesses, or draw the material to the attention of counsel assisting the Commission, risks an adverse finding by the tribunal on the matter which the evidence would be expected to support or on which the witnesses would be expected to testify.

The fact that no corroborative witnesses were called by these complainants was a significant defect in their cases. Traditionally, cases with sexual content have always required or desirably had corroboration so as to ensure that no person is wrongly found to have acted unlawfully who did not do so: see Cross on Evidence Third Australian Edition paragraph 8.26 and the cases there mentioned; and Halsbury's Laws of England (4th edition) Vol 7 paragraph 291 and the cases there mentioned. Corroboration would also have helped to fill gaps in, and remove doubts about, important evidence.

Such cases have also historically required evidence of reasonably contemporaneous complaint to people to whom early complaint might be expected: see Halsbury's Laws ofEngland (4th edition) Vol 11 paragraph 441. This exception to the hearsay rule has developed by the common law simply because a complaint to a parent, spouse, partner, friend, relative or other person such as a doctor, nurse or police officer, being natural or expected, tends to corroborate that the event complained of happened.

It is especially surprising that the complainant Bennett did not call her boyfriend, who was said to be available and willing to attend the hearing, to provide evidence of complaint and to corroborate her evidence as to the respondent's attempts to barge into her house, that he said when he did enter, and her claimed suffering after the treatment to which she was subjected by the respondent. Her counsel said at one stage that the boyfriend would be called but ultimately this did not occur. No explanation was offered for this unfortunate omission. It left the complainant's evidence to stand alone. In some cases this could lead to a doubt about a complainant's veracity on some important matters, and may have significant consequential effects on the result of an inquiry.

9. Delay

There has been considerable delay in bringing these matters to a hearing. The complaint of Ms Bennett was first made on 10 September 1986, almost two years before the inquiry. The evidence establishes that a conciliation conference was held in March 1987. After its failure to achieve a settlement of the complaints, negotiations for the resolution of the matter continued for a further three and half months. They failed. Another six months elapsed before the complaint was referred to this Commission by the relevant State body. It then took another nine months to bring the case on for hearing. There was less actual delay in the case of Ms Lawson whose complaint was first lodged in July 1987, but this required an impartial investigation as to why it took ten months after the impeached conduct before the complaint is lodged. No explanation of this delay was presented. If it is investigated, no results of the investigation have been made known. As in other areas of the law, delay in lodging complaints or commencing proceedings may sometimes cast doubt on the truthfulness of all or some of the assertions made. It is therefore advisable that complaints under this Act be lodged with all practicable expedition.

Complaints should also not be permitted to be withdrawn before a hearing without good reason and a full dispassionate explanation to the complainant of her rights, in order to guard against the possibility that a complainant may be intimidated by the strength and power of the former employer's efforts to resist her claims. Again counsel assisting is available to help avoid this possibility. An adjournment is an alternative option to withdrawal if the reasons for not wishing to proceed are temporary.

These delays have caused serious injustice to the complainants. Firstly, the respondent went out of business on 1 June 1988. He subsequently left Whyalla, although he seems to have returned later. His present whereabouts are unknown. This factor will make it difficult for the complainants to enforce any compensation order made. Similarly, the delay and resulting absence of the respondent will make the bringing of any criminal proceedings and any proceedings in relation to wage claims, and to taxation and industrial offences, more difficult than would earlier have been the situation. His current impecunious or bankrupt status, let alone his unknown whereabouts, may well make impossible now what would have been possible had expedition been shown. The delays directly caused public expense and further delays in trying to serve the respondent with the Commission's process in this matter. All of this may have been justified, or may be at least understandable, if the results of this apparently massive investigation had been make known.

The delays have further prolonged the stress suffered by the complainants and their families as a result of these proceedings. They also made difficult the recall of significant aspects of the complaints - such as the length and dates of employment and some aspects of the alleged harassment and its aftermath. There is also the dander that knowledge of such delays may deter potential complainants 'from proceeding with allegations.

Of course delays regrettably occur in all investigations and litigation, although the reasons differ. I recognise that in discrimination cases, some delays occur through inadequate resources, both of personnel and funds. Nevertheless, the interests served by this legislation will be essentially frustrated if, as I have said previously, in the absence of exceptional circumstances, complaints do not ordinarily reach the end of the investigative and conciliation stages within six months of their lodgment, so that those that are unconciliated can be promptly referred for inquiry.

I can see no justification for these particular cases taking so long to reach a hearing. It is essential that greater expedition be achieved

10. The Legislation

Counsel for the complainants did not sees to distinguish the cases made under the two sections of the Act relied on, namely sections 14 and 28. Essentially he argued the whole of the case under section 28. He also did not argue sexual harassment, either itself or as discrimination on the ground of sex, in the pre-employment interviews. Nonetheless, because my task is to inquire into all relevant matters, I must deal with at least the major questions raised by the evidence under these headings.

Section 14 states, so far as is relevant for this case:

(1) It is unlawful for an employer to discriminate against a person on the grows of the person's sex, marital status or 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 or 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

Section 28 states, relevantly for this case:

(1) It is unlawful for a person to harass sexually -

(a) an employee of that person;

(b) an employee of a person by whom the first mentioned person is employed; or

(c) a person who is seeking employment by the first-mentioned person or by an employer of the first mentioned person.

(2) .....

(3) A person shall, for the purposes of this section, be taken to harass sexually another person if the first-mentioned person makes an unwelcome sex advance, or an unwelcome request for sexual favours, to the other person, or engages in other unwelcome conduct of a sexual nature in relation to the other person, and

(a) the other person has reasonable grounds for believing that a rejection of the advance, a refusal of the request or the taking of objection to the conduct would disadvantage the other person in any way in connection with the other person's employment or work or possible employment or possible work; or

(b) as a result of the other person's resection of the advance, refusal of the request or taking of objection to the conduct, the other person is disadvantaged in any way in connection with the other person's employment or work or possible employment or possible work.

(4) A reference in sub-section (3) to conduct of a sex 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 Act is gender neutral and therefore, subject to constitutional considerations which are not relevant here, applies equally to males

with female employers as in the reverse situation. However, as these cases involve female employees with a male employer, I shall address the problems accordingly.

These cases raise three questions under these sections:

1. Was there sexual harassment of either complainant?

2. Did either suffer discrimination on the ground of sex?

3. What consequences are appropriate in the event of an affirmative

answer to either question?

11. The Pre-employment Interviews

11.1 Sexual harassment

It is my opinion that by asking his questions, the respondent engaged in "unwelcome conduct of a sexual nature within section 28(3). These complainants answered the questions asked of them. I infer that they did so because they entertained the belief that if they did not do so, they would or might not be employed. I find that the fact that the conduct took place during interviews held for the purpose of determining whether the complainants' applications for employment should or should not succeed, gave the complainants reasonable grounds for believing that objecting to or refusing to answer the questions would result in the disadvantage that their then possible employment would not eventuate. In other words, they were entitled to believe that they would not get the jobs if they did not answer what were offensive, embarrassing and essentially irrelevant and unnecessary questions. Section 28(3)(a) establishes this as sexual harassment.

11.2 Sex Discrimination

It is therefore not necessary to determine in this case whether these questions also amounted to

discrimination on the grounds of sex as provided for by section 14(1). However, I should point out some difficulties in these regards. Section 5(1) of the Act defines discrimination as follows.

For the purposes of this Act, a person (in this subsection referred to as the 'discriminator') discriminates against another person (in this subsection referred to as the 'aggrieved person') on the ground of the sex of the aggrieved person if, by reason of

(a) the sex of the aggrieved person;

(b) a characteristic that appertains generally to persons of the sex of the aggrieved person or

(c) a characteristic that is generally Imputed to persons of the sex of the aggrieved person,

the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of the opposite sex

The questions concerning the pill and statements about becoming pregnant would obviously not have been asked of potential male employees. It is not known if males would ever have been considered for these positions, but in any event, the evidence does not reveal that any males were applying for the positions being sought by these complainants.

Thus the issues that would arise under section 5(1) as to whether

(a) there could be circumstances that were the same or not materially different for male applicants; and whether

(b) these female applicants were treated less favourably than male applicants would have been treated,

appear to be irrelevant to such cases as these. They would in any event be very problematic in this type of complaint. however, assuming, without finding in these matters, that the answers to both these queries are yes, section 14 (1) requires the resolving of one more question, viz. whether the questioning was thus discriminatory (i.e. less favourable treatment, etc.)

(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 and conditions on which employment is offered.

In respect of pre-employment questioning of this type, these options will always present problems to answer affirmatively. The employer will rarely if ever be able to explain these types of question by reference to rationality, logic or any feature of the proposed employment. Indeed the whole basis of the complaint against him is that is questioning is sexual misbehaviour, not employment necessity The complainant at best will only be able to provide evidence of the employer's actual answer. It may not be difficult to disbelieve virtually any explanation of an employer if the questions are as in this case, but the rejection of the employer's explanations, even if he gives evidence, will provide nothing positive on which to determine that the questioning fits one of the discriminatory criteria required by section 14(1). They seem unlikely here to have had much to do with the arrangements for determining or with actually determining who should be offered employment; or anything at all to do with the terms and conditions on which the employment was being offered. Inferences to these effects are, and will seemingly always be, actually or potentially unavailable from pre-employment interviews of this kind.

The realities of Australian society today are that women are still suffering major discrimination in training and employment opportunities. Hence the context of section 14(1) shows that it is primarily designed to ensure that males are not preferred to females, or females do not suffer other inequity of treatment, on the basis of the discriminatory considerations and circumstances prescribed by the subsection. In these

cases, it is clear that the employer was quite happy to have, perhaps was even exclusively seeking, female employees in the positions concerned. Thus the problem being dealt with here is not that the applicants for the positions are suffering discrimination on sex or gender considerations, in terms of section 14, but are being subjected to wholly offensive and improper conduct with sexual overtones or content which appears to be quite irrelevant to section 14. Of course subsection (2) of section 14 does not apply in this situation because it is posited on the existence of the employment relationship which does not exist at the time of a pre-employment interview.

11.3 Conclusion

I make no findings or decisions on these matters which do not have to be determined and were not argued in this inquiry. But I am bound to say that this is a most uncertain and unnecessarily complex way of proscribing a thoroughly reprehensible yet apparently not uncommon occurrence in the workplace. It seems to me to lead to an impossible position for women which should not exist. Unlawful sexual harassment in a pre-employment situation under section 28 requires (in summary):

(a) sexual advance or conduct

(b) act rejection or constructive rejection (acceptance under duress)

(c) act or perceived disadvantage in what the section calls the 'possible work' or 'possible employment'.

Where the first two elements are established, I cannot think of a disadvantage of this kind, as I have said on other occasions, if the female applicant is appointed to the position in question. None vas suggested by counsel for these complainants, and I have not read of any suggested elsewhere.

On the other hand, section 14(1) has difficulty in operating effectively in pre-employment harassment complaints, even if a female applicant does not secure the job, because there will be a paucity of evidence of her having been treated less favourably than would have been applicable in the same or similar circumstances to males, in or in the arrangements for determining who should get the position, or in the terms and conditions of the employment.

The consequences of all that create a classic but quite unacceptable 'Catch 22' situation for women subjected to these questions. I summarise the quandary for a woman as follows:

(a) if she refuses to answer, she may not get the job. She will then have a case under the Act but no employment;

(b) if she refuses to answer but gets the job, she has employment but no case (because there was no disadvantage);

(c) if she answers and does not get the job, she has neither employment nor a case (because there has been no rejection) unless the answers are a constructive rejection, in which event the case will often be an obviously poor practical substitute for the employment. Among the legal difficulties under section

14 will be proving that she failed to be given employment on any statutorily discriminatory basis;

(d) if she answers the questions freely and without act or imputed objection, and gets the job, she has employment but no case (because there has been neither rejection nor disadvantage). If the answers amount to a constructive rejection, there is no disadvantage.

This matter needs urgent Parliamentary attention to omit the need to establish a disadvantage - or broaden its definition - in these circumstances so that sexually offensive questions asked in employment interviews of the ultimate employee which are not or only partly answered are made unlawful. Whether to undertake the risk and problems of proceeding against a current employer should be a choice which each employee has the right to make. Alternatively, different relief should be provided for this unlawfulness so as to avoid this dilemma.

12. Employment Conduct - Sexual harassment

12.1 Terri Bennet

These were a number of discrepancies between this complainant's evidence and her original written complaint. One potentially significant discrepancy was the amount of money which the respondent is alleged to have offered the complainant to go to his caravan with him for sex. In the original complaint, it is alleged that the respondent offered her $50 for this purpose. In the oral evidence of the complainant, this amount increased to $300. No corroborative evidence was called, in particular of a contemporaneous or later complaint to another person. In some circumstances a tribunal of fact would be entitled to react by disbelieving the occurrence altogether.

There was another discrepancy of this kind. In her original complaint, she did not mention the serious specific incidents in the freezer. Rather she alleged that 'he would bail me up in his office and try and force himself on me'. In evidence no mention was made of any occurrence in the office. As the written complaint was made just a few weeks after the events are said to have occurred, and almost two years before the evidence was given, the freezer events simply may not have occurred.

12.1.1 Sexual Conduct

Such features of the evidence, coupled with the absence of cross examination, one of our system's most effective features for the ascertainment of truth, oblige the Commission to examine her case closely. Her evidence was direct, clear and credible. Despite the examples of inexactness to which I have referred, my overall impression was that Ms Bennett was actually trying consciously to ensure that her evidence was truthful and unexaggerated. I believe that the alleged touching occurred. Except on the question of Ms Bennett's credit, the discrepancy between the $300 and the $50 for sex in the caravan is of little real significance. I accept that she was offered money for sex. I am inclined to the view that it was probably $50. I find that events such as were said to have occurred in the freezer took place, but say have taken place in the office. If they did, the surrounding circumstances were presumably somewhat different although the sexual misconduct was of the kind described. In resolving all these matters, I

take into account the respondent's deliberate absence from the hearing and his failure to deny in his letter of defence those assertions of which he was undoubtedly aware at the time of its writing. His explanation of the condom incident is absurd. I accept Ms Bennett's account of this occurrence which is substantially corroborated by Ms Lawson.

12.1.2 Unwelcomeness

The complainant's allegations concerning her reactions to the respondent's conduct were persuasively and convincingly related. I believe they occurred. I find that all of the respondent's conduct was unwelcome to the complainant and that she rejected or objected to it clearly and unambiguously.

12.1.3 Disadvantage

I accept the complainant's repudiations of the respondent's letter of defence to the complaints, in particular her denial that she had ever smoked marijuana at work and that she was dismissed for this reason. It is irrelevant whether she resigned or was dismissed. I have no doubt that her employment terminated because she was affronted and distressed by the respondent's behaviour. The timing and circumstances of her virtually simultaneous resignation and dismissal make it unarguable that both occurred because of her objections to the respondent's sex advances and overtures.

12.1.4 Conclusion

It seems evident that in addition to his apparently regular behaviour towards female employees, the respondent believed that this woman's personal circumstances made her some type of available target for his uncontrolled and apparently uncontrollable behaviour. This behaviour is explicitly rendered unlawful by the Act. In my view, the complainant was sexually harassed within the meaning of section 28(3)(b).

12.2 Katie-Louise Lawson

12.2.1 Sexual Conduct

Again there was a lack of corroborative evidence of this complainant's allegations apart from the other complainant. Ms Kittel was not called although it seems she could have assisted. Whilst this is understandable in her present circumstances, her absence is another victim of the delays to which I have referred. Ms Lawson's account of the facts was moderate and straightforward and accorded with her original claim. Except for the condom incident, on which I accept the complainants' accounts, none of them were denied by the respondent in his letter of defence. There is no reason to doubt, and every reason to accept, that each of the incidents outlined by this complainant did in fact take place.

12.2.2 Unwelcomeness

Although, as other Judges have observed, it is difficult to define the legislative requirement of unwelcomeness with one general statement which would apply to all circumstances, virtually all the authorities and writings on this subject speak of the need to evidence unwelcomeness

by a repetition of the offending conduct after at least one rejection. The evidence of express rejection by this complainant is sparse. However, this principle seems to me to bear down unacceptably on the standard that an enlightened society should follow. I have therefore carefully reviewed the cases and statements on the need for repetition.

On the one hand, the word 'harassment' itself conveys some concept of repetition.In fact, one of the definitions given to 'harass' by the Shorter Oxford Dictionary is: 'to trouble or vex by repeated attacks'. The Macquarie Dictionary adds: 'to disturb persistently; to torment ...'. In addition to the cases I have mentioned elsewhere, the New Zealand case of S v E & Ors [1984] EOC 92-111 and the Canadian case of Hanlon v TG Mobile Aerial Equipment Ltd [1986] 7 CHRR 3/3475 both emphasise the need for persistency, as do many cases in the United States.

On the other hand, it seems to me that there are circumstances where a single action or statement ought to and may amount to unwelcome conduct where in other circumstances it would not properly be so described. Some conduct may be so 'troublesome' or 'vexing', or be of such a nature, or take place in such circumstances, or between such people, as to be clearly unwelcome without the need for a repetition following rejection. With every respect to the distinguished unanimity which appears to exist for the other view, I have come to the conclusion that unwelcomeness in such cases should be imputed or assumed. Thus, in the absence of an invitation or intimation from an employee that sexual advances or conduct would be welcome, the legislation should be read as not permitting a generally available 'trial contact' by an employer to ascertain whether sexual behaviour is consented to or welcomed by an employee.

It is not appropriate, even if it were possible, that an attempt be made to define exhaustively all the possible circumstances which nay arise. Behaviour of the kind endured by Ms Bennet, had there been no actual rejection, should be treated as presumptively unwelcome. In the case of Ms. Lawson, it should likewise be inferred, there being no credible evidence to the contrary, that the proven sexual advances and suggestions were unwelcome.

12.2.3 Disadvantage

Ms Lawson was not dismissed but chose to leave. She clearly and more than once stated that the reason for her resignation was her belief in the unjustified sacking of her friend, although she alleged, somewhat as an afterthought, that the behaviour of the respondent was a contributing factor. This raises the question as to whether the necessary disadvantage element of harassment has been established.

It is not necessary that the disadvantage take the form of act or constructive dismissal. As I stated in Hall & Ors v Sheiban & Anor [1988] EOC 92-227 at 77,148:

. . if taken as a total environment, the work, workplace and employment relationship were so infected by the acts and/or words of harassment, the fact that an employee left the job or otherwise suffered in the employment, apparently voluntarily would not prevent a finding of sexual harassment.

In his article "Discrimination - Some Legal Issues" [Canberra Bulletin of Public Administration, Autumn 1985], Ian Barker QC gives examples of situations in the United States and Canada which have been found to amount to disadvantage brought about by the complainant's own choice. Mr. Barker reports that in the United States, disadvantage was found in the situation of 'an employee subjected to constant insults and propositions of a sexual nature which forced her to work in an unhappy work environment'. In Canada, it was found in a case of 'two employees who resigned because their employer repeatedly grabbed, caressed and touched them, despite their pleas to him to desist'.

I have no doubt that the behaviour of the respondent confronted the complainant Lawson with only two choices: unwilling if partly passive toleration of the conduct, or leaving. These are options which have no place in a lawfully conducted work establishment. It seems to me that if the work environment had not been so infected, the complainant Lawson would have been able more equably to face the choice arising from what she perceived to be the unjust treatment of her friend, and may have made a different decision. I also infer that the departure of the friend had some impact on Ms Lawson' capacity and willingness to tolerate the respondent's conduct. Together with the uninvited and inferentially unwelcome touching and verbal suggestion, this is in my opinion quite sufficient to establish that the work environment was so permeated with unwelcome sexual conduct as to amount to disadvantage within the meaning of the Act.

12.2.4 Conclusion

The respondent's conduct and behaviour towards the complainant Lawson were thus manifestly sexual harassment within the terms of section 28.

13. Employment Conduct - Sex Discrimination

The next question to be considered is whether the complainants also suffered discrimination on the ground of her under section 14(2). As previously noted, the elements of this provision are less favourable treatment than would have been applied to males in the same or similar circumstances [s. 5(1)]:

1. in the terms or conditions of employment that the employer affords the employee [paragraph (a)];

2. in denying the employee any other benefits associated with the employment [paragraph (b)]; and

3. in subjecting the employee to another detriment [paragraph (d)].

To support his argument on the first element, counsel for the complainants cited with approval the following passage from by determination in Hall at 77.148:

In MM v R Pty Limited and JC (Equal Opportunity Tribunal of New South Wales, unreported 17 June 1988), reference was made by the Tribunal to Hill v Water Resources Commission [1985] EOC 92-127 at 76,288 where it was said that the hostile work environment produced by harassment can be 'sufficiently perwasive to affect adversely the terms and

conditions of employment. Conditions of employment include the psychological and emotional work environment.' The present cases were not argued as 'terms and conditions' cases under sec. 14(2), but in the light of my findings and conclusions on the claims under sec. 28, this omission is not material in the result here.

For these and the reasons previously given in this case, both complainants were in my opinion discriminated against in this respect.

In relation to the second and third elements, the following observation of Nathan J in R v EqualOpportunity Board and another; ex parte Burns and another [1985] VR 317 at 329 is relevant:

It is an act of discrimination to deny to an employee a benefit connected with the employment such as accrues to other employees. A benefit of employment is the entitlement to quiet employment, that is, the freedom from physical intrusion, the freedom from being harassed, the freedom from being physically molested or approached in an unwelcome manner. If molestation, physical and sexual affronts are permitted by an employer, it is denying a benefit and permitting detriment to those employees who suffer such unwelcome intrusions vis-a-vis those who do not.

I agree with respect with his Honour's analysis. I held in Hall at 77,134, that these entitlements include a prohibition on sexually oriented jokes told at a workplace without consent or invitation. Contrary to some views expressed in North America where emphasis has been given to general liberties such as freedom of speech and expression, they also in my view exclude the display, on notice boards or in other places at work which employees of both sexes are expected or likely to see, of sexually explicit or implicit cartoons, display photographs of naked women or men, and publications featuring such photographs or containing other lewd or sexually suggestive printed material.

Human rights are rarely absolute entitlements. One person's rights must normally accommodate and be subject to the rights of others. In addition, everyone has an obligation to respect and observe the rights of the rest of the community. Thus in most circumstances a balance needs to be struck between rights, and between rights and obligations. Where there is a clash between the benefits or liberties gained from an assertion of a particular right by one person or group, and obligations to another or others, or where such benefits are clearly outweighed by the disadvantages or sufferings of another or others when that right is asserted, the right must be adjusted or qualified to reduce or remove those adverse consequences as far as possible. In my opinion that clearly applies here. All employees have a right to employment without sexuality or attempts at the introduction of sexuality, either direct or indirect.

The second and third requirements of section 14(2) are clearly established in these cases. In my opinion, therefore, there has been unlawful sex discrimination against both complainants within the meaning of section 14(2).

14. Relief

14.1 Generally

The final question to be considered is that of the appropriate relief that should be determined for the identified unlawfulness. The relief which may be granted by the Commission is set out in section 81(1)(b) Counsel for the complainants sought declarations in terms of paragraphs (i) and (iv). These Provide:

After holding an inquiry, the Commission may

(b) find the complaint substantiated and make a determination, which may include any one or more of the following:

(1) a declaration that the respondent has engaged in conduct rendered unlawful by this Act and should not repeat or continue such unlawful conduct;

............

(iv) 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 conduct of the respondent.

The complainants are clearly entitled to declarations that the respondent engaged in unlawful sexual harassment and discrimination on the ground of sex. The requested declarations of compensation embraced both loss of wages and general damages, including in each case compensation for 'injury to the complainant's feelings or humiliation suffered by the complainant' as prescribed by Section 81(s).

Parliament has also provided that in appropriate cases no other relief at all should be granted other than the finding that the complaint was substantiated [s. 81(1)(b)(vii)]. The circumstances calling for the exercise of this option are not, or are not limited to, trivial or insubstantial cases because these are specifically dealt with by section 79 which provides for their absolute dismissal. There is no assumption or requirement in the Act that compensation or other relief follow a finding of unlawfulness. The failure to award compensation represents no qualification on or diminution of the seriousness of the unlawful conduct; it merely means that no compensable damage or loss has been established or identified by the evidence.

14.2 Principles of Compensation

The approach to be taken to the assessment of damages in sex discrimination cases under the New South Wales Anti-Discrimination Act 1977 was discussed in AlldersInternational Pty Ltd v Anstee & Ors [1986] EOC 92-157 by Lee J of the New South Wales Supreme Court. His Honour said at 76,556:

One should seek to establish a measure of damages which is applicable to all forms of discrimination. The problem in my view largely disappears if the discriminatory conduct giving rise to an entitlement to damages can be regarded as a tort, as I think it can, for generally speaking the measure of damages in tort is based on causation and foreseeability.

A tort has been described as 'an act or omission giving rise, in virtue of the common law jurisdiction of the court, to a civil remedy which is not an action of contract'; (Stroud's Judicial Dictionary, 4th ed., D. 2.789)

Acknowledging that the New South Wales Act did not expressly provide, as does this federal Act, for compensation to include in jury to feelings, Lee J proceeded:

It seems to me that there are sound reasons for treating an action under the Act as an action in tort and this, of course, permits a wider claim to damages being made than if the action is in contract. Hurt to feelings is recognised in many torts (defamation, negligence, malicious prosecutionto mention but three) and I see no reason why a tort of discrimination should not allow for that factor. Discrimination in many circumstances is capable of causing injury in a real sense to the feelings of the person discriminated against. Where, as here, the Act defines as unlawful, discriminatory conduct of the kind expressed in the Act, and empowers the Tribunal to award 'damages not exceeding $40,000 by way of compensation for any loss or damages suffered by reason of the respondent's conduct', I consider that the proper conclusion is that tortious liability has been created for conduct the nature of which contemplates injury to personal feelings, and that damages therefore ought to be recoverable.

In Australian Postal Commission v Dao & Ors [1985] 3 NSWLR 565, McHugh JA said at 604-5 that an action under the New South Wales Anti-Discrimination Act 1977 is an action in tort, referring to Halsbury (4th edition) vol 45 para 1201.

I agree with respect with their Honours' views. The law of compensation applicable here is the same as in other cases of civil wrongs. The U.K. Sex Discrimination Act 1975 even permits by section 66(1) a claim alleging discrimination to be made 'the subject of civil proceedings in like manner as any other claim in tort or in reparation for breach of statutory duty'.

Professor Fleming in his authoritative Law of Torts (7th Ed. 1987) at page 206 defines the consequences for damages of this categorisation as follows:

The overriding purpose of our law of damages is to compensate the insured, not to punish the insurer ... in assessing compensatory damages, the law seeks at most to

indemnify the victim for the loss he has suffered, not to mulct the tortfeasor for the injury he has caused. Hence the plaintiff must give credit for savings which minimised particular loss items (for example what he would have spent on food if he had not been in hospital) or for any reduction in the anticipated extent of the injury due to subsequent events (like a widow's remarriage, the victim's death or a later accident)

Professor Luntz in Assessment of Damages for Personal Injury & Death [Second Edition 1983] says that compensation 'means that the plaintiff is to receive in money terms no more and no less than his act loss' (p. 3). Luntz quotes Lord Blackburn's famous dictum in Livingstone vRaywards Coal Co [1880] 5 App Cas 25 (HL) that

... you should as nearly as possible get at that sum of money which will put the party who has been insured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation ...

In Ratcllffe v Evans [1892] 2 QB 524, Eowen IJ said at 532-3:

In all actions ... on the case where the damage actually done is the gist of the action, the character of the acts themselves which produce the damage, and the circumstances under which these acts are done, must regulate the decree of certainty and particularity with which the damage done ought to be stated and proved. As much certainty and particularity must be insisted on ... as is reasonable, having regard to the circumstances and to the nature of the acts themselves by which the damage is done.

In other words, as A.I. Ogus in The Law of Damages 1973 says in substance at page 81, a plaintiff is compelled to prove his losses with the reasonable standard of exactness appropriate to the matter alleged.

McGregor on Damages (15th Editions) says at paragraph 1779 that a plaintiff has the burden of proving both the fact and the amount of damage before compensation of substance can be recovered. This applies even if the defendant does not deny the allegations of loss here a plaintiff succeeds in proving neither the fact nor the amount of damage, or proves only fact but not amount, the action is either lost or only nominal damages are awardable. No doubt this is one of the circumstances the Australian Parliament had in mind when it enacted section 81(1)(b)(vii) of the Act.

In Bonham-Carter v Hyde Park Hotel [1948] 64 TLR 178, Lord Goddard CJ said at 179:

Plaintiffs must understand that if they bring actions for damages it is for them to prove their damage; it is not enough to write down the particulars, and, so to speak,

throw them at the head of the court, sayings: 'This is what I have lost, I ask you to give me these damages ' they have to prove it.

More recent failures of a plaintiff to discharge the onus of proof in relation to damages or aspects of damages include Ashcroft v Curtin [1971] 1 WLR 1731; and Tate and Lyle Food andDistribution Ltd v Greater London Council [1982] 1 WLR 149.

These observations require adjustment to deal with the situation where there is no strict onus of proof as here. However, in the main, the damage or losses sustained by complainants in sexual harassment cases, like those of plaintiffs in other proceedings in tort, are peculiarly within their own knowledge. They will differ from person to person and case to case. Thus leading evidence of whether there were any consequences, and if so of what they were, must be the primary responsibility of the complainant alleging the consequences.

Many factors are used by Courts and tribunals of fact in determining the truthfulness of parties and witnesses on such matters. Where juries decide cases of tort, they are regularly instructed by trial Judges that they must use their 'common sense and knowledge of the world' in approaching their various tasks on the issues for determination, including whether compensable damage has been suffered. Fleming describes this task as follows (at p. 280 ):

. . the jury' s function is twofold, partaking in the determination of legal consequences no less than of facts. For, aside from its traditional task of weighing the evidence as to facts alleged to give rise to liability, the jury participates in a significant measure in settling the legal consequences flowing from the facts thus ascertained. For instance, it falls within their province to translate the metaphysical standard of the reasonable and prudent man into a concrete standard applicable to the particular case before them as, in that light, to decide whether the defendant failed to conform. This process involves not a determination of fact, but the formulation of a value judgment or norm which is qualitatively of almost equal significance to the enunciation of a rule of law by the court.

The same requirement applies to any tribunal of fact, including this commission, in assessing evidence of the various issues to be determined in cases where both liability and damage must be satisfactorily established.

Writing of proof of negligence, Fleming said (at p. 131 ):

. . the plaintiff may ... fail because he was outside the foreseeable range of injury, however many others happens to be within it. Our law has become committed to limiting the range of liability to persons alone who were foreseeably imperilled, lest defendants be crushed by the burden of excessive liability for some quite trivial fact.

However, at page 183 he wrote:

Liability beyond foreseeable consequences has exerted its strongest and quite consistent appeal for the stock problem of unexpectedly aggravated personal injuries. For none is so well accepted as the familiar legal saw that 'a tortfeasor must take his victim as he finds him'. True, a plaintiff's abnormal susceptibility to injury may have an important bearing on whether the defendant's conduct was negligent towards him, because ordinarily no more is demanded in the way of care than precaution against the risk of what might insure normal individuals.

This is the standard law on this subject. In assessing damages for unlawful sexual harassment, I therefore held in Narelle Kiel v Gary John Weeks [unreported 27 November 1987]:

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

I reaffirm that view here. The criterion or susceptibilities of another person could at most only ever be relevant in establishing foreseeability aspects and in assessing the entitlement of the particular complainant or witness to the acceptance of veracity.

Where damage has clearly been sustained, its assessment in monetary terms may not be diminished for an individual complainant because there are factors in that person' s reaction to the wrong suffered which would or may not have affected others suffering the same wrong. Fleming describes this fundamental and longstanding principle thus ( also at p. 183 ) :

But once a breach of duty to him has been found because some of his injury should have been foreseen, responsibility embraces any aggravation due to a latent physical condition, however abnormal. Thus even the most sanguine supporters of the fault theory accept it as perfectly fair that a tortfeasor be held to the risk of his victim turning out to be affected with an 'eggshell skull', a weak heart, or some rare blood disease like hemophilia. Nor does it make any difference whether the injury is just more severe than expected or actually entails wholly unexpected sequelae

He continues at 184:

Indeed, as with an eggshell skull, so with an eggshell personality: for example a predisposed neurosis that flares up after the accident.

The task in these cases is therefore not to determine what other women faced with the same behaviour would or might have felt or how they would or might have reacted, even assuming this could be determined. As said in Kiel v Weeks [above, there is, in my view, no room in the assessment of damages in sex discrimination cases for a criterion of some type of hypothetical 'reasonable woman', whatever or whoever that might conceivably be.

In this regard, I respectfully differ from the viewpoint I take to have been expressed in Watt vRegional Municipality of Niagara & Anor [1984] 5 CHRR D/2/53, a sexual harassment case decided under the Ontario Human Rights Code. The decision contained a perceptive analysis of the jurisprudence in the field. In quoting an article on the subject from the 1984 edition of the Harvard Law Review which sought to establish a framework for determining United States cases of this kind, it was said at paragraph 20340:

In order to determine whether a plaintiff has established a prima facie case of sexual harassment, courts must choose a viewpoint from which to evaluate the offensiveness of the challenged conduct. The proper perspective is the objective one of the reasonable victim. Such a standard would protect women from the offensive behaviour that results from the divergence of male and female perceptions of appropriate conduct, but it would not penalise defendants whose victims were unusually sensitive. Courts could further protect sensitive employees by finding lability whenever a defendant persisted in sexually related conduct after the plaintiff had notified him that she found it offensive.

Similar statements have been made elsewhere in North America. With profound respect to the learned commentators and personages involved, and to the extent to which their observations are applicable to the assessment of the damage suffered, as well as to the issue of primary liability itself, this in my view is not and should not be the law in Australia. As Fleming has pointed out, this approach simply does not accord with the law of torts applicable to cases of this kind. The assessment required here is what the complainants, as revealed by the evidence, personally and genuinely suffered from the unlawful conduct found.

Recognising the need that each case must be examined on its own facts, rather than that once liability has been found, compensation must necessarily follow, it was said as to general damages in Green and Swan-Sheehan v Safieh and 709637 Ontario Inc., Carrying on Business as

City Auto Recyclers [1988] 9 CHRR D/4749, another decision under the Ontario Human Rights Code, at D/4755:

... in assessing these damages I concur with counsel that a number of factors be taken into consideration, such as the age of the complainants, the frequency and length of the harassment, and the psychological damage done.

I also concur in this formulation.

15. Loss of Wages

15.1 Generally

The claims for loss of wages were unquantified. It was conceded by counsel in both instances, I think rightly, that no claim can be made for the period after 1 June 1988 when the respondent's business closed down. The complainants could not have expected to remain in the company's employ after that date.

15.2 Social Security Payments

An initial question in these cases is whether the receipt of social security benefits by the complainants should be taken into account in quantifying the losses of wages. The complainant Bennett was in receipt of a supporting parent's benefit during her employment with the respondent and has continued to receive it since that time. The complainant Lawson has been in receipt of unemployment benefits since her resignation other than when she was attending school.

The Social Security Act 1947 makes some provision as to the receipt of compensation payments by persons on unemployment benefits. Part XVII of the Act provides that unemployment benefits paid on or after 1 May 1987 are recoverable from compensation paid in respect of incapacity to work. This provision would thus have no direct-application here as neither complainant gave evidence of ever having been incapacitated for work in the relevant period. There are no provisions concerning the fate of compensation payments where a supporting parent's benefit is received or when the compensation is awarded for sex discrimination or sexual harassment.

It is thus necessary to examine the common law. There is High Court authority that a police pension (Paff v Speed [1960-1961] 105 CIR 569) and invalid pension payments (The NationalInsurance Company of New Zealand Limited v Espagne [1961] HCA 15; [1960-1961] 105 CLR 569, Redding v Lee [1983] HCA 16; [1982-3] 151 CLR 117) should not be taken into account when assessing damages in personal injuries claims. on the other band, in Evans v Muller which was heard and reported with Redding v Lee, the High Court held by a majority of 4:3 that in the assessment of damages to be awarded in a personal injuries action, unemployment benefits received by the insured plaintiff should be deducted from the loss of wages up to the trial arising from the negligence. In explanation of this position, Wilson J stated at 155 that this was because

... payments of unemployment benefit are in essence money paid in lieu of wages and ought therefore to be taken into account when assessing the loss suffered by a plaintiff entitled to an award of damages.

The Court often referred to legislative intention. Murphy J, for example, stated at 150:

Since Espagne' s Case the social welfare legislation has been amended many times, without purporting to supersede it's ruling (the High Court's decision) from which it is proper to infer that it has been accepted by the legislature. A coherent solution of the problem consistent with Espagne's Case can only be achieved by legislation

No doubt the 1987 amendments had regard at least in part to these views.

In Anstee [above Lee J said at 76,558 that whether an age pension should be deducted from the damages by way of loss of wages to be awarded in a case of a discriminatory dismissal on the grounds of sex was not an easy question. Nonetheless, his honour held that:

... there would be a real element of inconsistency in holding that where a woman by reason of discrimination lost her job and had to accept an age pension .. that pension should be deducted from the damages payable by the person engaging in the unlawful discrimination.

Lee J said that this was because

... there should be no discrimination in regard to retirement.

The position of a supporting parent's benefit received before, during and after the discrimination also raises difficult questions. For the present cases, I think I should have regard to the fact that the 1987 amendments to the Social Security Act succeeded Espange, the Redding v Lee /Evans v Muller decisions, and Anstee. It should be assumed that the amendments took into account those decisions. As they only provided for limited deductibility of unemployment benefits and did not provide at all for the deductibility of other forms of social security, it should be applied in these cases as such. It is therefore not appropriate to take into account the social security benefits paid to these complainants so as to reduce the damages that should be paid to them. It is a matter for Parliament if this involves any element of double counting or creates a problem with the retrospective assessment of the complainants' previous receipts of social security.

15.3 Rate of Calculation

I have already noted with great concern that both complainants were paid at rates well below those set by the relevant award. The claims to recover these underpayments and Ms Bennett's pay for the last week of her employment will have to be the subject of separate proceedings as the Sex Discrimination Act does not deal with this subject at all however, compensation for loss of wages due to the respondent's unlawful

conduct should in my opinion be based on the award rate and not the actual pay received. The respondent's previous illegalities in these respects should not be indulged by this Commission. The quantum of the losses suffered then involves a consideration of the subsequent employment histories of the complainants

15.4 Terri Bennett

The complainant Bennett said in evidence that she had looked in the newspapers for work but had not applied for any job since the termination of her employment with the respondent. This she attributed partly to the high level of unemployment in Whyalla and partly to her lack of qualifications, although these are really not reasons for not applying for whatever suitable work was on offer. Counsel for the complainant in fact conceded, I think correctly, that Ms Bennett's failure to seek employment means that it is not possible to draw the inference that had it not been for the conduct of the respondent, she would have remained in the employ of the respondent until the business closed down on 1 June 1988. Nonetheless it is open to the Commission to find that her failure to sees employment was for a time a direct consequence of her experiences in the company's employment.

Evidence was given of Ms Bennett's intention to further her education. In the first half of 1988 she undertook a secretarial course in Port Lincoln. She has also enrolled in an accountancy course at the local TAFE College which will commence in early 1989. This clearly demonstrates her desire to find continuous fully remunerative employment. It also helps to diminish another possible inference arising from the evidence that Ms Bennett may have chosen to regulate the amount of her employment, and the amount she would have earned, so as not to interfere with her entitlement to the supporting Parent's benefit.

The Commission can reasonably infer that the complainant Bennett would have remained in the employment for a somewhat longer period of time had it not been for the behaviour of the respondent. According to the evidence presented, it appears that the award rate which this complainant should have been paid was $6.9930 per hour between 4 pm and 6 pm and $7.5758 for each hour after 6 pm. Thus her payment for four hours work per night on three nights per week between the hours of 4 pm and 8 pm would have been $87.41 gross. This would have increased by $15.15 to $102.56 if she worked an extra half an hour each night, as was apparently sometimes the case. She may have been liable for a small amount of income tax on this sum, but her rate of pay would also have increased due to increasing age and each national wage variation. It compares somewhat starkly with the $50 she was actually paid. Lump sums of compensation are not taxable: Income Tax Assessment Act 1936, section 16OZB; and the net pay must be used to calculate the appropriate loss of wages: Commonwealth of Australia v Blackwell [1987] 163 CLR 425; Todorovic v Waller [1981] CLR 402.

15.5 Katie-Louise Lawson

The complainant Lawson was still attending secondary school whilst working for the respondent on the weekends. After her resignation in September 1986, she continued attending school for a little over another month but did not continue her weekend work. She then went on unemployment benefits. During this time she attempted to find work by going to the Commonwealth Employment Service, looking in the newspapers

and asking around the town. In June 1987, Ms Lawson returned to school and completed Year 11. She has not returned to school since then. Her search for employment has been unsuccessful. She had two job interviews in 1987, but has had none in 1988. She has undertaken a job search course. Her counsel submitted that it is open to the Commission to find that this complainant would have pursued full-time employment with the respondent at the earliest opportunity. Even if this were true, it would be difficult to say when that would have been. Counsel did not proffer a suggestion. In addition, there is no evidence that full-time employment would have been or was ever available at the company's business; what evidence there is reveals that only part-time work was ever offered to anyone. Hence I think that the complainant's loss should be computed on the basis that her work would have been performed part-time only.

On the other hand, it seems to me that had she remained in that employment part-time, her chances of obtaining full-time employment elsewhere would have been enhanced. Stability in employment and the work experience thereby gained are important factors militating in favour of employability, whereas periodicity and changing jobs, especially in young persons, tend to operate against their chances of success in achieving regular employment.

These matters are difficult to assess when trying to ascertain the act loss suffered by this complainant, which is no doubt the reason why her legal representatives did not attempt to assist the Commission in its task of doing so. There is also the additional possibility in the case of the complainant Lawson that she would have remained in the employment somewhat longer had it not been for the dismissal of her friend. This would reduce the loss of wages claim but in turn may have requited in further harassment with a consequential increase in general damages.

The 1986 award rate for the complainant Lawson was as follows:

Saturday am $4.9699 per hour

Saturday pm $5.8268 per hour

Sundays $7.5405 per hour

For the hours of 8 am-4.30 pm Saturday and Sunday she was thus entitled in 1986 to be paid the sum of $110.23 each week - more than twice her actual pay. This may again have attracted a small amount of income tax but it would also have increased with each birthday and following each national wage variation.

16. General Damages

16.1 Aggravated Damages

In addition to the strictly compensatory nature of general damages provided by the Act, the complainants' counsel argued that aggravated damages should also be awarded to reflect the injury to the complainant caused by the respondent. Reference was made to a first instance English decision of Archer v Brown [1984] 2 All ER 267, a case of deceit where unlike here there was no statutory inclusion in the damages available to be awarded, of compensation for injury to feelings. In that case a very small amount was awarded for so-called aggravated damages for injury to the plaintiff's feelings.

I am unable to agree that this form of aggravated damages is available here where there seems no room for the operation of the common law under this heading. In providing expressly for the inclusion of compensation for injury to feelings, section 81(4) merely expands or expresses one aspect of the provision by section 81(1)(b)(iv) of compensation 'for any loss or damage suffered by reason of the conduct of the respondent'. It thus seems to me that this legislation does not permit of the concept of aggravated damages. In the present legislation, there is also no provision for penalties, or for exemplary or punitive damages.

16 2 Terri Bennett

The complainant Bennett gave evidence of the following consequences of the respondent's unlawful conduct:

1. sleep disturbances during the actual employment - she would go

to bed between 2 and 4 am rather than at the usual time of ll.30

pm

2. recurrent nightmares for some weeks after the second incident in

the freezer

3. refusal or unwillingness to have sexual intercourse with her

boyfriend for at least one month - after this the relationship

gradually returned to normal

. the taking out of tension on her children to the extent that at

one point she sent her children to stay with her mother

5 feelings of disgust, hurt and anger during the actual employment

as a result of the events which occurred

Just as in proving the unlawfulness and loss of wages alleged, the establishment of the complainant's acceptability and truthfulness on the issue of general damages is also necessary. As I have earlier pointed out, it is a task which the legislation requires to be undertaken. Again, consistent with the practice followed in other cases of tort, evidence by way of corroboration of such claims should be brought, to assist in ensuring that the evidence of complainants making such allegations is accepted. In the informal procedures of the Commission provided by Parliament, and depending on the subject matter involved, affidavits or even signed statements of this kind may be tendered and received in evidence, if it is difficult for the witnesses to attend. (In the enforcement procedures in the Federal Court where the rules of evidence apply, this is less likely to be acceptable unless by consent.)

I have already pointed out that in this case, despite an intimation from the Commission that Ms Bennett's boyfriend, who was said to be available, should be called, he was not. No explanation was given It is difficult to avoid the conclusion that this evidence would not have assisted the complainant: Jones v Dunkel [1959] HCA 8; [1959] 101 CLR 298. Ms Bennett's mother was not called nor were any other corroborative witnesses. The absence of any corroboration on the effects of the complainant's treatment by the respondent, such as for example in relation to her sleep disturbances and problem-s with her children, and on her feelings, moderates the degree to which her assertions in these regards are acceptable.

I accept that Ms Bennett suffered injury to her feelings from the incidents and behaviour described. Despite the scanty evidence presented and the consequent difficulty of assessing such matters, I am satisfied that she felt humiliated and revolted, suffered a real loss of self esteem and personal pride, and sustained the interferences with her normal life patterns which she generally described. Ms Bennett was subjected to gross inwasion of her being and privacy. Her general account of the consequences with regard to herself and her children is a realistic and likely series of events and sufferings.

16.3 Determination

The liability to pay compensation falls on both the company as the complainants' employer and the respondent as the person directly involved in the unlawful conduct. In any event, the respondent was clearly the employee or agent of the company. He is thus equally liable for the unlawfulness and its reparation [ss. 28(1), 106(1), 107(1)]. Allowing for the uncertainties of calculation of loss of wages to which I have referred, I declare that the respondents should pay to the complainant Bennett the sum of $7,000 as compensation for the unlawful harassment and discrimination

16.4 Katie-Louise Lawson

Important factors in the assessment of general damages for this complainant are her youth and inexperience. She complained of having been affected by the respondent's unlawful behaviour in the following ways:

1. although her social activities have not been diminished, she does not like being touched by males whom she does not know very well

2. she is shy in physical relations with her current boyfriend, although she said that this was also the case when she had an interest in the respondent's nephew Kevin

3. at the time of the incidents the complainant felt scared by the respondent's behaviour

To some people, these effects may appear, and may have been, quite minor. However, I was impressed by this very young woman's ability to convey these significantly personal feelings and reactions. She showed no signs of exaggeration or invention. There was no indication of prompting or concoction. I accept that Ms Lawson suffered nervousness, insecurity and some genuine fear, as well as an impairment to her self-confidence, as a result of the respondent's behaviour. I believe that she should have felt lost and alone in her efforts to cope with conduct and behaviour that were completely foreign. I am also satisfied, despite an absence of direct evidence, that this behaviour would have significantly unsettled her for some time and left her with an unstated agitation and uneasiness that should be compensated. The employer/employee relationship itself was new to her. That she had to be subjected to her employer's pathetic misconduct and language must have made her suffering the worse to experience and the harder to bear.

16.5 Determination

I again take into account the problem of assessing with any degree of accuracy the loss of wages she sustained, as sell as the factors contributing to her decision to leave from the circumstances of the departure of her friend from the company's employment. Making due allowance for general damages, I declare that the respondents should pay the complainant the sum of $6,000 as compensation

17. Costs

The Act makes no provision for unsuccessful respondents to be required to pay the costs of complainants. Hence the complainants seek a recommendation under section 83 of the Act that the Attorney General pay the expenses incurred. The complainants did receive legal aid. I have not seen the actual legal aid grants, but I was informed that they only covered 80 percent of the act costs as is common or normal. It is not appropriate that I investigate in which aspects there is a shortfall, and I have not done so

Provided the grants of legal aid do not exclude, by law or otherwise, financial supplementation of the kind sought, this seems to me to be an appropriate case for such a recommendation. Without provocation by them, or any other conceivable justification, these complainants have been significantly deprived and victimised because of vulnerabilities of which the respondent would have been well aware. If these cases were like other litigation where costs normally follow the result, the additional money would have been payable by the respondents. The complainants have nowhere else to turn to assist them with their costs other than the Attorney General and, for the reasons and in the circumstances earlier mentioned, cannot fund the deficit themselves. To the extent permitted by the legal aid grants, I therefore recommend that the Attorney General give assistance to both complainants in respect of the expenses incurred by them in connection with the inquiry.

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

TERRI MAUREEN MICHELLE BENNETT and KATIE LOUISE LAWSON

Complainants

F. EVERITT AND WHYALLA FISH FACTORY AND TAKE AWAY PTY LTD

Respondents

SUMMARY OF DETERMINATION

Note: This is not part of the Commission's determination. It has been prepared by Commission staff to assist the identification of major aspects of the determination.

On 9 September, 1986, Terri Maureen Michelle Bennett, a single female then aged 19 years with two children aged three years and one year, complained of sexual harassment by Frederick Everitt (the respondent) while employed at the Whyalla Fish Factory and Take Away Pty Ltd (the Company) during July and August 1986. On 30 June, 1987, Katie-Louise Lawson, a single female then aged 16 years who was still attending school, complained of sexual harassment by the respondent while employed by the company for some eight weeks at about the same time. Both complainants alleged that the sexual harassment also amounted to sex discrimination. Among the matters alleged were touching, various physical activities, sexually oriented remarks and actions, and indecent assaults. Both left the employment following the conduct.

The respondent did not attend the Inquiry, despite several attempts to notify him. His Honour decided that the respondent was aware of the inquiry but chose not to attend.

Justice Einfeld observed that much of the conduct complained of may well, on the evidence presented, amount to common or sex assaults, and should have been brought to the notice of the police so that appropriate criminal proceedings could have been initiated. He recommended that police forces make services available to facilitate and encourage reports by victims of this type of misconduct.

His Honour found that during their employment the Company had paid both complainants at rates well below the applicable awards. Proceedings should also have been brought to recover the proper amounts and to penalise the award breaches. He also noted that the respondents appeared to be in breach of a number of provisions of the Income Tax Assessment Act by not keeping proper business records or making deductions for income tax. If these matters had been reported, prosecutions could have been instituted. Justice Einfeld said that the reporting of such matters would have facilitated a conciliated settlement of these complaints.

In cases under discrimination legislation in Australia and overseas, it has previously been held that there is a strict

onus of proof to be borne by complainants. His Honour held that this was not the intention of the Federal Parliament when enacting the Sex Discrimination Act. He followed his previous decision in Erbs v. overseas Corporation Pty Ltd [1986] EOC 92-181. The aim of these proceedings is to ascertain the facts, rather than to arbitrate between opposing parties. The Judge pointed out that this interpretation failed because there was a material imbalance between the resources available to the parties which was weighted against victims and in favour of discriminators. To assist further in this regard, his Honour also called for an amendment to the Act to deem proven unwelcome sex conduct in employment to be unlawful, unless the respondent satisfies the Commission to the contrary.

His Honour decided that personal sexually-based questions asked by the respondent of the complainants at their preemployment interviews amounted to sexual harassment under section 28 of the Sex Discrimination Act. However, he observed that the section required review to deal with the circumstance where a woman is asked sexually-based questions which she answers, but is given the job, because there is no disadvantage as presently required by the Act. The Judge said that the questions should be made unlawful without the need for proved disadvantage in such cases.

The Judge accepted the evidence of the complainants but said that their evidence should have been corroborated by available relatives and friends. In particular, the law has always required evidence of complaint in cases alleging sex offences or misbehaviour. His Honour also said that information obtained in the investigation of complaints should be made available to the parties and the Commission, especially statements by respondents.

The Judge criticised the delay in these cases and pointed out the injustices suffered by the complainants as a result of them. He called for unconciliated complaints to be referred for inquiry not later than six months after they are lodged.

His Honour decided that the requirement for sexual harassment that the conduct complained of be unwelcome should not always require repetition of the conduct. Definitions of harassment and virtually all the decided cases in Australia and overseas emphasise the need for persistency. But his Honour held that there are circumstances where a single action or statement should constitute unwelcome conduct without the need for a repetition following rejection. Rejections and unwelcomeness should be inferred in such cases

Justice Einfeld held that the disadvantage element of harassment need not be established by act or constructive dismissal. In Hall, Oliver and Reid v. Sheiban he had held that the work environment can be so infected by acts or words of harassment that the fact that an employee left the job or otherwise suffered in the employment, apparently voluntarily would not prevent a finding of sexual harassment.

In these cases, however, the Judge said that this concept extended not only to give employees a right to a workplace

free of harassment and molestation. He decided that, contrary to North American decisions, the entitlement included a right not to be subjected to sexually oriented jokes, sexually explicit cartoons, or printed materials such as pin-up photographs of naked women and men. The Judge said that all employees have a right to employment without sexuality or attempts at the introduction of sexuality, direct or indirect.

In relation to relief, his Honour pointed out that the Act made no provision for penalties, or for exemplary or punitive damages. Furthermore, the Act provides that in some cases no relief should be granted except for a finding that the complaint is substantiated. Thus compensation does not follow automatically upon a finding of unlawfulness. An award of compensation requires that compensable loss be established by evidence, normally brought by the victim. Compensable loss includes loss of wages and injury to feelings resulting from the unlawful conduct.

His Honour decided that whether a complainant could be said to be abnormally sensitive so that others may not have reacted in the same way to similar conduct was quite irrelevant. There is no room in the assessment of damages for sex discrimination for some type of 'reasonable woman' test. In this respect, he followed his earlier decision in Kiel v. Weeks, delivered in November 1987. All that is necessary to establish is that the particular complainant personally and genuinely suffered from the unlawful conduct.

His Honour found that each complainant suffered both sexual harassment and sex discrimination. He declared that the respondents should pay the complainant Bennett the sum of $7,000 and the complainant Lawson the sum of $6,000 as compensation for the unlawful harassment and discrimination.

The Act makes no provision for unsuccessful respondents to be required to pay the costs of complainants. The complainants did receive legal aid. The Judge therefore recommended under section 83 that the Attorney General assist the complainants with any shortfall between the grants of aid and act expenses incurred in relation to the inquiry, to the extent permitted by the grant of aid and the relevant law.