Wharton v Warilla Cyss [1990] HREOCA 20 (31 December 1990)

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

SEX DISCRIMINATION ACT 1984

MARIE WHARTON COMPLAINANT

SHELLHARBOUR AREA TRAINING INCORPORATED RESPONDENT

REASONS FOR DECISION OF SIR RONALD WILSON (PRESIDENT)

HEARING: SYDNEY, 17, 18, 19 JULY, 4 SEPTEMBER, 4 DECEMBER 1990

Mr P King of Counsel appeared for the complainant. Mr B McClintock of Counsel appeared for the respondent.

1. HISTORY

This case has a long and tragic history. The complainant commenced work at the Warilla Community Youth Support Scheme as a project officer in January 1982. on 11 March 1985 she complained to the Anti-Discrimination Board of New South Wales of sexual harassment by two of her fellow project officers contrary to s28 of the Sex Discrimination Act 1984 ("the Act"). She was granted leave without pay from 18 March 1985 pending the resolution of the complaint. In June 1986, although the complaint had not then been resolved, it was agreed that the complainant should resume her employment on 1 July 1986. The project officers in respect of whose conduct the allegations had been made were no longer employed at the centre.

The Human Rights Commission, established by the Human Rights Commission Act 1980, became seized of the complaint but was expected to go out of existence in December 1986 when the Act was due to expire. The Commission met in Wollongong on 27 November 1986 to hear the complaint. Before the hearing commenced, the parties, with the assistance of Counsel, entered into discussion with a view to settlement. Thereafter the Commission was informed that agreement had been reached.

In consideration of the payment of a sum of money to the complainant she agreed to discontinue the complaint. At the same time, the predecessor to the present respondent published the following statement:

"The Management Committee Warilla CYSS (which until recently was known as the Warilla Active Youth Team) welcomed Mrs Marie Wharton to full time work as a project officer at the CYSS Centre on 1 July 1986. It acknowledges the value of her service and the initiatives she has taken to assist participants in this community.

"The Committee recognises the gravity of the complaints made to the Human Rights Commission by Mrs Wharton which refer to her employment between August 1984 and March-April 1985. It is aware that during this period there came before the then Committee disputes as to the subjection of Mrs Wharton to discrimination and harassment while working as a project officer. The Committee recognises the unhappy aftermath to Mrs Wharton of these disputes.

"Although the allegations are denied, the Committee has given careful consideration to them and appreciates their significance.

"The Committee wishes to assure Mrs Wharton that it will take all reasonable steps to prevent conduct amounting either to sexual harassment or discrimination on the grounds of sex by its employees."

Thereafter the entire Management Committee resigned and for a time there was no executive or committee in existence. A new committee commenced work in early February 1987. As is usual with CYSS committees, the new committee mostly comprised community-minded local citizens who were prepared to serve voluntarily in order to further the interests of unemployed young people. I am satisfied that the leadership of the new committee genuinely sought to promote a good atmosphere in the centre freed of the earlier difficulties.

On the other hand, several witnesses have testified to the prevalence of an atmosphere of tension by reason of the return to work of the complainant. One witness described it as "like walking on egg-shells". I have no doubt that the complainant herself shared this sense of apprehension.

Nevertheless, the work of the centre proceeded and things might have settled down had it not been for a spate of publicity in the local press concerning the earlier complaint of sexual

harassment. This publicity appears to have had its origin in a speech in the Senate of the Australian Parliament wherein a Senator outlined "a serious case of sexual harassment", namely, that of which the complainant had complained. The speech was made in the Senate on 26 February 1987, but the complainant had first approached the Senator on 17 December 1986. The media publicity, by reviving the allegations, was perceived by those associated with the centre to be damaging to its image and there was even talk of its funding being discontinued. Unfortunately, rightly or wrongly, the complainant received the blame for much of this and the tension increased.

A meeting of the committee was held on 3 March 1987. One resolution said to have been passed at that meeting has been the subject of dispute. The question of the attendance of project officers at community meetings was raised because Mrs Wharton and another project officer had both attended the one meeting. This was thought by some members of the committee to be an unnecessary use of an officer's time. The confirmed minutes of the meeting record a resolution that all project officers report to the next meeting of the committee on the extent of their involvement with community committees. However, the complainant is adamant that the tenor of the debate was critical of her and that it was resolved that she no longer be involved in any committees of that nature. The original notes from which the minutes were prepared have not been produced. Every committee member who has given evidence before me has testified to the correctness of the confirmed minutes, although in the evidence of one witness there would seem to be an inconsistency with respect to the matter. I am unable to reject the totality of that evidence as false and therefore incline to the view that the complainant's perception of the debate and the resolution is mistaken. It was so much a part of a project officer's work to provide a liaison between the Management Committee and these community committees that to deny one project officer any participation at all would in my opinion amount to blatant discrimination. I cannot believe that in the circumstances then existing the new Committee would be so provocative.

Be that as it may, I have no doubt that, coming hot on the heels of the local media publicity, the meeting of 3 March 1987 was not an easy one for the complainant. I can therefore understand that she went home immediately after the meeting instead of joining the others for a meal, as was expected. Noticing her absence from the meal, another project officer left and telephoned the complainant at home to see if she was alright. It was said simply that she had a headache.

The complainant did not return to the centre after 3 March 1987. She complained of stress and supplied medical certificates to account for her absence. on 11 May 1987 a proposal in writing was made on behalf of the Management Committee to Mr Wells to be conveyed by him to the complainant. Mr Wells was the industrial

officer for the Australian Social Welfare Union, the union of which the complainant was a member. The proposal was that the contract of employment be terminated on the grounds that her continued illness prevented her from fulfilling the terms of her contract, and that an ex gratia payment be made. Mr Wells submitted the proposal to the complainant but she did not accept it. Thereafter Mr Wells ceased to act for her.

On or about 2 July 1987, the chairperson of the Management Committee, which by this time had been incorporated as the Shellharbour Area Training Incorporated, wrote to the complainant a letter, the relevant part of which reads as follows:

"The Committee has given further consideration to the situation concerning your employment in the light of your response to our offer and has decided to adopt an alternative course of action, as detailed below.

"Before I advise you of the action the Committee has decided to take, I should point out that our decision is based solely on the clear need to develop stable long term staffing arrangements at the project and to reduce the negative impact on client services which has arisen as a result of your long term absence and our inability, in the circumstances, to appoint a permanent or long term replacement for you.

"The decision the Committee has taken is that, in the light of your long-term incapacity for work, your contract of employment should be terminated on the grounds that you are unable to fulfill its terms. The Committee also notes in this context that you have made a very clear statement to another employee that you have no intention of ever returning to work at the project.

"Accordingly, I, being duly authorised by the Committee to do so, hereby advise you that, unless you can show due cause in writing within 14 days as to why it should not do so, the Committee intends to terminate your contract of employment with effect from 1 month of the date of your receipt of this letter ..... "

The complainant did not reply to this letter. A further letter was sent to her on 17 September 1987, advising her of the termination of her employment with effect from that date.

I cannot conclude this history without a reference to an application by the complainant that this Commission re-open her original complaint of sexual harassment. That application was

made. In May 1989, the Commission directed the parties to file written submissions with respect to the question whether the Commission could or should reopen the matter. Those submissions were made. A detailed report was made to the Commission on 7 September 1989. It was resolved not to reopen the complaint. Having regard to the fact that the original complaint had been discontinued on 27 November 1986 and therefore was no longer pending at the time of expiry of the old Act, I do not believe that this Commission had any authority to re-open it. The old Commission had completed the performance of its function in relation to that complaint: see s.46(6) of the Human Rights and Equal opportunity Commission (Transitional Provisions and Consequential Amendments) Act 1986.

2. THE ISSUES

I sought to confine the hearing into complaints of sex discrimination based on actions after 10 December 1986, this being the date when the new legislation establishing this Commission commenced. However, counsel for the complainant argued that it was necessary to call evidence of events between July and December 1986 in order to provide the background and in any event because there was a complaint of sex discrimination based on events allegedly occurring subsequent to July 1986. I permitted him to do so.

However, I do not think the evidence touching that period calls for any detailed consideration. Complaint was made that the proposal touching the complainant's return to work in July 1986 was never adhered to by the Committee. While the non-compliance may not reflect favourably on the former Committee, the answer is made that no binding agreement was reached in that regard and that in any event the complainant did not press it. Reference was also made to a notation made in March 1986 on the back of a set of minutes by a project officer raising the possibility of refusing to work with the complainant on the ground of incompatibility. In my view, that amounts to no more than an indication of the apprehension with which, at least in some quarters, the complainant's return to work was contemplated. The public statement made by the Committee on 27 November 1986 does not suggest that there was any particular difficulty existing at the time it was made, although of course the circumstances must be borne in mind.

Nor, in my opinion, leaving aside the question of the termination, are there any significant matters occurring after December 1986 which could support an allegation of sex discrimination. It must have been extremely difficult for the complainant to return to the same workplace where, if her evidence is to be accepted, she had suffered such embarrassment. It may not be generally realised how traumatic and painful is the road that a woman complaining of sexual harassment must tread and much remains to be done to encourage a more sensitive

and sympathetic community response to such an experience. On the other hand, the burst of media publicity hardly gave the new committee a chance to settle into a relaxed tension-free environment. In such a situation, the possibility of misunderstanding and thoughtless conduct short of sex discrimination must always be present. If the complainant's perception of the resolution at the meeting of 3 March 1987 to which I have referred was correct, then the action would clearly be discriminatory. But I have been unable to take her view of the circumstances of that meeting.

The complainant's case relies heavily on the circumstances of the termination of her employment. Counsel argues that I should rely on Dr Jolley's evidence to the effect that the complainant suffered a conspicuous mental illness in 1985 which was exacerbated in 1986/1987 to the point where she became unfit to continue in employment. He argues that I should find that the illness to which Dr Jolley testified was sufficiently shown by the evidence to be related to sexual harassment in the workplace. Counsel's preferred position is that I should fix a global figure by way of compensation covering the entire period and deduct the sum paid under the settlement in 1986. Having regard to the history, I do not think that I am free to do that. If there was a single proceeding based on proved sexual harassment in 1985, then clearly it might be possible to relate the termination to that harassment and compensate accordingly. But that is not this case.

Nor do I believe that I can identify the stress-related illness of 1987 as a result, whether wholly or in part, of the sexual harassment alleged to have occurred in 1985. That allegation has not been proved. It was not open to be proved because it did not form part of the complaint which was the subject of the inquiry that I have undertaken. Nor am I able to find that the exacerbation of her illness in 1987 occurred because of any sexual harassment or sex discrimination related to her employment subsequent to July 1986.

I do not think that the procedure adopted to achieve a termination is open to criticism. It was not improper of the Management Committee to put its reasons to the complainant and invite her to show cause why the procedure outlined should not be followed. of course, the initial period referred to was in conflict with the award which required that a worker be on sick leave for at least six months before termination. But ultimately, the date on which the termination took effect was in compliance with the award. As to the reasons for taking the action to terminate, I am unable to discern any sex discrimination implicit in it. The Committee was under a responsibility to provide an efficient service to youth in need in the community and I do not think that the sex of the complainant played any part in the decision to invite the complainant to show cause why the employment should not come to an end.

Counsel for the complainant, in the course of his closing address, argued that the evidence established that the complainant had been victimised and requested that consideration be given to appropriate proceedings in accordance with s.94 of the Sex Discrimination Act against the persons alleged to have offended in that regard. However, I am not satisfied that such victimisation occurred.

For the foregoing reasons, I find that the complaint is not substantiated.

It must be dismissed.

Dated this 31st day of December 1990.

RONALD WILSON

President