Westwood v Lachlan & Guyatt & Members of the Council of the Scots College [1990] HREOCA 9 (26 September 1990)

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

SEX DISCRIMINATION ACT 1984

PAMELA MARY WESTWOOD COMPLAINANT

ROBERT LACHLAN FIRST RESPONDENT

&

NICHOLAS GUYATT SECOND RESPONDENT

&

MEMBERS OF THE COUNCIL OF THE SCOTS COLLEGE THIRD RESPONDENTS

REASONS FOR DECISION OF COMMISSIONER IRENE MOSS

HEARING : SYDNEY, 25, 26 & 27 JULY 1990

DECISION : SYDNEY 26 SEPTEMBER 1990

APPEARANCES

Mr J Basten, counsel assisting the Commission.

Mr R Baker, counsel for the first respondent.

Mr G Downes QC, for the second and third respondents.

A written complaint of sexual harassment was lodged with the

Human Rights and Equal opportunity Commission ('the Commission')

by the complainant, Pamela Westwood, on 7 June 1988. The

complaint named Robert Lachlan and Nicholas Guyatt, of the Scots

College Preparatory School as the respondents to the complaint.

Robert Lachlan is the Senior Resident Master at Deane House at

the Preparatory School and Nicholas Guyatt is the Headmaster of

the Preparatory School. During the course of the Sex

Discrimination Commissioner's inquiry into the complaint

pursuant to s. 52(1) of the Sex Discrimination Act ('the Act'),

the respondents denied each and every allegation made against

them. Pursuant to s. 52(2), the Sex Discrimination Commissioner

decided not to continue to inquire into the act complained of,

and advised the parties accordingly. The Complainant then

exercised her right under s. 52(4) to have the complaint

referred to the Commission for a formal inquiry. The complaint

was thus referred to the Commission by the Sex Discrimination

Commissioner pursuant to s. 52(5) of the Act on 20 October 1989.

Directions requiring the filing of documents by the parties were

issued by the Commission on 25 october 1989. The complainant

was required to file points of claim and the respondents points

of defence and both parties were required to file lists and

statements of witnesses. The timetable dates for such filing

were altered a total of four times due to non-compliance by one

or the other of the parties. During the course of correspondence

in that process the respondents requested that the Commission

exercise its power to dismiss the complaint pursuant to s. 79 of

the Act.

On 28 June 1990 the President reviewed the matter and decided,

in order to expedite the finalisation of the complaint, that the

matter proceed by way of a preliminary hearing, preparation for

which was to involve the preparation of a statement of issues

document to include the complainant's allegations and claims and

the respondents' responses to such.

The preliminary hearing was held on 25, 26 and 27 July 1990 in

order to consider submissions from the parties on the

respondents' application for dismissal under s. 79.

Section 79 states:

Where an inquiry, the Commission is

satisfied that a complaint is frivolous, vexatious,

misconceived, lacking in substance or relates to an act that

is not unlawful by reason of a provision of Part 11, it may

dismiss the complaint.

At the outset of the hearing, both respondents were represented

by counsel and the Commission had appointed counsel assisting.

During the course of the hearing, the members of the Council of

Scots College were joined as the third respondents in the matter.

Counsel for the second respondent, Mr Downes, announced his

appearance for the third respondents as well. In addition, after

the complainant became unrepresented in the very early stages of

the hearing, with the agreement of all parties, counsel

assisting the Commission, Mr Basten, took on the role of amicus

curiae.

It was agreed between the parties that there were several

relevant documents which identified the complainant's complaint

and constituted the evidentiary material on which the

application was to be based.

In terms of the Act, section 28 is clearly the key. Section 28

states

28. (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 sexual 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 rejection 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 sexual nature in relation to a person includes a reference to the making, to, or in the presence of, a

person, of a statement of a sexual nature concerning that person, whether the statement is made orally or in writing.

Section 106 is also a key section. Section 106 states :

106. (1) Subject to sub-section (2), where an employee or

agent of a person does, in connection with the

employment of the employee or with the duties of the

agent as an agent -

(a) an act that would, if it were done by the person,be unlawful under Division 1 1 or 2 of Part II (whether or not the act done by the employee or agent is unlawful under Division 1 or 2 of Part II); or

(b) an act that is unlawful under Division 3 of Part II,

this Act applies in relation to that person as if that

person had also done the act.

(2) Sub-section (1) does not apply in relation to an act of a kind referred to in paragraph (l)(a) or (b) done by an employee or agent of a person if it is established that the person took all reasonable steps to prevent the employee or agent from doing acts of the kind referred to in that paragraph.

Before discussing arguments from counsel on this application, I

consider it is important at the outset to comment on s.14 of the

Act. Section 14 states:

14. (1) It is unlawful for an employer to discriminate against a person on the ground 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) ....

(3) Nothing in paragraph (1) (a) or (b) renders it

unlawful for a person to discriminate against another

person, on the ground of the other person's sex, in

connection with employment to perform domestic duties

on the premises on which the first-mentioned person

resides.

Mr Basten submitted that the matters raised in the relevant

documents also relate to s. 14 of the Act, and that relevant

findings of unlawful conduct could be founded upon either s.14

or s.28. This submission was strongly resisted by counsel for

the respondents. For the purposes of determining the s.79

application I have not needed to refer to s.14.

Mr Downes submitted that, on looking at the parts of the

complaint and the whole, the conduct alleged by the complainant

was not relevant to employment. He suggested the evidence and

claims point to a relationship that has transcended an

employment relationship. Mr Downes stated that the time frame

of the claims made do not fit in with the typical cases of

sexual harassment that have been the subject of litigation in

the past.

There are clearly special difficulties in distinguishing between

the work and non-work environment in this matter because the

complainant, and indeed the first respondent, lived at their

place of employment. Most of the activities complained of

occurred outside normal work hours but it is not clear that the

complainant will not be able to establish a sufficient

connection between the alleged activities and the employment.

For the purposes of the Act, the activities complained about

need not take place during work hours or in the workplace

itself. I am persuaded by Mr Basten's submissions on this

point. Indeed it is not impossible for a personal relationship

to influence a work relationship or vice versa. Such

relationships need not, as Mr Downes suggests, be mutually

exclusive.

Mr Downes submitted that the time frame of the alleged

activities, that is a period covering over 2 years, suggests

that the conduct complained about was not unwelcome. I consider

this argument to be best tested at an evidentiary hearing as it

goes more to the complainant's credibility than to constituting

a key point in a summary dismissal application.

Mr Downes and counsel for the first respondents, Mr Baker, also argued that Mr Lachlan, the first respondent, was not in a position of power, and referred to equal opportunity cases in

which the respondent involved always had the power to hire and fire, although that person need not have been the employer.

Section 28(3)(a) of the Act merely requires the complainant to have reasonable grounds for believing that a rejection, refusal or objection may lead to employment disadvantage. I am

persuaded by Mr Basten's submission that the respondent need not be in a formal position of power.

There are allegations which, if proved, could provide such grounds. For example, it is alleged that Mr Lachlan had said on several occasions that he could have the complainant fired. It

is not clear that the complainant will be unable to show that she had reasonable grounds for believing that Mr Lachlan had this influence.

The fact that Mr Lachlan did not possess the explicit power to hire or fire is not conclusive, nor is it conclusive that he may not have such influence to affect a dismissal, nor that he was

not able to exert his influence to that effect. Section 28(1)(b) in fact clearly allows for the alleged harasser and the complainant simply to be employees of a common employer.

Furthermore the absence of an explicit threat by a person to an employee that, if she did not engage in sexual conduct which that person was asking her to engage in, she would be fired, is not conclusive that there was no sexual harassment. Disadvantage in employment should not be interpreted to relate only to the alleged harasser having the power to hire or fire or

dismiss or threaten to dismiss as such. Circumstances other than dismissal can constitute disadvantage in employment.

Mr Downes took us through s.28 and its key elements. on s.28(3) Mr Downes noted the authorities which point to the element of instillation of fear, or infliction of damage, found in s.28(3)1 and argued to be implicit in s.28(1). Mr Downes argued contra Wilcox J in the decision of Hall & ors -v- A & A Sheiban Pty Ltd and ors [1989] FCA 72; (1989) EoC 92-250 that one could not test the reasonableness of the holding of a belief if a belief is not held in the first place. Thus, Mr Downes argued, the complainant must have that actual belief. Mr Downes' argument is, in fact, also contrary to that of French J in the same case.

French J. states at p.77,431 :

On the language of s.28(3)(a) the test for determining whether a complainant had reasonable grounds for believing that the taking of objection to the conduct in question would disadvantage her in connection with her employment or possible employment, is an objective one. The criterion is best confined by the words of the statute which require no more than their identification. What may or may not constitute reasonable grounds will be a matter for determination by the relevant Tribunal of fact. It is unsafe and undesirable to expand upon it by the conjuration of such numinous entities as the "reasonable" or "sensible" woman.

Wilcox J states at p. 77,402 :

It is important to note that, consistently with the underlying policy of focusing upon objective facts, para.

(a) does not require proof that the recipient of the conduct did in fact fear disadvantage. The test is whether a person in the position of the recipient had reasonable grounds for a fear of disadvantage. All the circumstances relating to the individual must be considered, including that person's work position and personal characteristics, but it is then for the tribunal of fact to determine the existence of reasonable grounds for that belief.

Thus the test is objective, and my view is that this interpretation by Wilcox and French JJ is the correct one. Again I find that it is not clear that the complainant will not be able to establish that reasonable grounds existed for her to form that view.

Mr Downes and Mr Baker also argued that the bulk of the complainant's claims are either not related to employment or lack substance, either because of inconsistency or relevance to the complaint of sexual harassment. Mr Downes referred to the lack of "strength" in these, that essential elements were missing. That being so, taken as a whole, counsel for the respondents argued, there cannot be unlawful sexual harassment.

On this point I would say that it is a pity that the Commission's directions were not complied with by the parties. If they had, there would have been an attempt to sort out, so to speak, the wheat from the chaff. A number of the incidents provided may indeed prove to be in the category of "chaff" but I am not convinced, at this stage, that all of the alleged incidents are irrelevant and all unprovable.

Counsel for the respondents examined individual parts of the complaint in an endeavour to establish that the complaint lacked substance both as to each part and as a whole. Even if it were established that certain or even all individual parts of a complaint do not individually constitute an unlawful act I do not think it follows conclusively that the whole of the complaint must therefore fall into the same category or fail. I am not persuaded that the complaint is entirely without substance and I consider that the strength of the allegations, in part and whole, can only be tested at an evidentiary hearing.

It is not necessary at this point for me to comment on the various details of the allegations which have been made. Suffice to say that I have concluded that there are allegations which, if proven, would constitute sexual harassment and it is not clear that such allegations cannot be proven.

I shall now turn to who are the proper respondents.

As mentioned above the Scots College has been identified and recognised as the complainant's employer and the Members of the Council of the Scots College have been joined as the third respondents as representatives of the employer. It was submitted by Mr Downes that neither the second respondent nor the third respondents considered the second respondent to be the employer; Mr Downes suggested that managing directors do not become employers because they issue dismissal notices.

Despite the fact that the instrument of dismissal and other letters were signed by the second respondent, and that he had the formal power to hire and fire, for the purposes of considering liability under s.106 I consider the third respondents rather than the second respondent to be the proper respondent.

In relation to s.106, it is clear that the first respondent is an employee and it is clear to me that the complainant may be able to establish that at least some of the conduct complained of did have a sufficient connection with employment.

Having considered the submissions made in this application I believe it is appropriate that the complaint so far as the second respondent is concerned be dismissed. The Scots College is the employer and the Members of the Council of the Scots College represent the employers and therefore become the appropriate respondent for the purposes of s.106.

In exercising the relevant statutory powers of inquiry in this matter, I have obtained guidance from the courts and point particularly to the substance of two decisions referred to in the case of Ellenboqen-v-Federal Municipal and Shire Council Employees Union of Australia and ors (1989) Eoc 92-252. In General Steel Industries Inc-v-Commissioner for Railways (NSW) and others [1964] HCA 69; (1964) 112 CLR 125, Barwick C J states:

The plaintiff rightly points out that the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion. I have examined the case law on the subject, to some of which I was referred in argument and to which I append a list of references. There is no need for me to discuss in any detail the various decisions, some of which were given in cases in which the inherent jurisdiction of a court was invoked and others in cases in which counterpart rules to order 26, r. 18, were the suggested source of authority to deal summarily with the claim in question. It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action - if that be the ground on which the court is invited, as in this case, to exercise its powers of summary - dismissal - is clearly demonstrated. The test to be applied

has been variously expressed: 'so obviously untenable that it cannot possibly succeed'; 'manifestly groundless'; 'so manifestly faulty that it does not admit of argument'; 'discloses a case which the Court is satisfied cannot succeed'; 'under no possibility can there be a good cause of action'; 'so manifest that to allow them' (the pleadings) 'to stand would involve useless expense'.

Although I agree with Latham C J in the same case [Dey-v-Victorian Railway Commissioners [1949] HCA 1; (1948) 78 CLR 62] when he said that the defendant should be saved from the vexation of the continuance of useless and futile proceedings, in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is not necessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed.

In Dey-v-Victorian Railway Commissioners, Dixon J states:

The application is really made to the inherent jurisdiction of the court to stop the abuse of its process when it is employed for groundless claims. The principles upon which that jurisdiction is exercisable are well settled. A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a ause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.

In these cases the Court was mainly discussing its inherent jurisdiction to dismiss matters in certain circumstances. The discussions are particularly helpful as they cast light on the ature and seriousness of summary dismissal matters and suggest a range of relevant considerations. The conclusion I come to is that I should not exercise the power of summary dismissal contained in s.79 in this matter unless it is clear that the complainant has no reasonable prospect of success. Various elements of s.28 have been raised. I cannot conclude at this stage that the complainant has no reasonable prospect of success. I therefore reject the application for dismissal.

As mentioned previously the allegations made by the complainant could involve both s.28 and s.14 of the Act. It is not clear to me why the matter has proceeded only under s.28. In relation to the future conduct of the inquiry into the complaint I make the following directions:

1. The complainant is given 28 days in which to file any submissions relating to s.14 of the Sex Discrimination Act should she wish to proceed.

2. The respondents are given 14 days after that in which to file any submissions in response to submissions made by the complainant in relation to s.14.

3. The existing order made pursuant to s.67 of the Sex Discrimination Act relating to non-disclosure of identifying information remains operative until further notice to the

contrary.

4. The matter is remitted to the Registrar of the Commission to arrange a call-over for the purposes of setting the matter down for hearing.

COMMISSIONER IRENE MOSS

26 September 1990