B v Mathews and Aah-Rem Pty Ltd [1991] HREOCA 1 (7 March 1991)

HUMAN RIGHTS AND EQUAL

OPPORTUNITY COMMISSION

MR K O'CONNOR, Member

INQUIRY UNDER THE SEX DISCRIMINATION ACT

BETWEEN

B________________ . COMPLAINANT

RUSSELL GORDON HAIG MATTHEWS FIRST RESPONDENT

AAH-REM PTY LTD SECOND RESPONDENT

HEARING: BRISBANE, QLD 24 JANUARY 1991

REASONS FOR DECISION

7 March 1991

Background

The complainant has complained that during a period of employment, between December 1988 and February 1989, she suffered sexual harassment on the part of the firstnamed respondent within the meaning of section 28 of the Sex Discrimination Act 1984. The firstnamed respondent to the complaint is Russell Mathews (junior) and the secondnamed respondent in the matter is Mr Mathews' trading company and employer of the complainant during the relevant period - AAHREM Pty. Ltd.

The complaint was lodged in July 1989. The Sex Discrimination Commissioner referred it in July 1990 to the Commission for inquiry as attempts to conciliate the matter had failed and as she was of the opinion that further attempts to conciliate it were unlikely to succeed.

Section 28

Section 28 of the Sex Discrimination Act 1984, as relevant, provides:

(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 firstmentioned person is employed;

(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) ...

Existence of Employment Relationship

There was no dispute that there was a contract of employment in existence between 28 December 1988 and the end of February, 1989 when it was terminated by the complainant in circumstances to which I will refer in more detail later. The employment appears to have been to engage in clerical and office management duties in a new office being established by the firstnamed respondent.

It appears that the firstnamed respondent did have a business operating in Townsville and was proposing to open a Brisbane office, and that, it would seem, explains the fact that when the complainant first commenced work, there was no business in hand in the office, which in other circumstances may have suggested that this was an unusual employment situation. Business was anticipated once the Brisbane office was set up and fully functioning.

Interview

The complainant referred in her complaint to the nature of the pre-employment interview, which given the nature of the duties contemplated to be performed, seemed to me to be quite an unusual interview, in that (1), it took four hours to complete, and (2), it appeared to address a number of matters which on no reasonable view could be regarded as relevant to her proposed duties.

The complainant gave evidence which was not contradicted and which I accept, that she was questioned as to matters to do with her personal and family life, including such matters as her relationship with her boy-friend - an example of the kind of totally extraneous material that was canvassed in the interview and gives some hint of the difficulties which were later to arise.

There was also an "intelligence" test forming part of the interview. This was administered by the firstnamed respondent, a person who, it seems, has no special competence to administer such tests. Again, under the circumstances, it was an example of an unreasonable and irrelevant activity that took place in the course of the interview, though there was no detailed evidence as to what were the contents of the "test".

At the interview the complainant made an agreement, the validity of which I doubt, to have her wages reduced by $120 per fortnight in exchange for "training" in touch-typing and word-processing from the firstnamed respondent. The "training" consisted of permitting the complainant to use a "teach yourself" instructional program which formed part of the office's word-processing system. The complainant's total financial commitment to the firstnamed respondent in respect of this purported agreement amounted to $1250.

Work Situation

The first period of employment - week one - appears to have gone smoothly. Though I note that the complainant was not entirely consistent on this matter and did indicate at one point in her evidence that one of her reasons for announcing her engagement on about the third day of employment was to assist in deflecting the approaches of the firstnamed respondent. After that, the firstnamed respondent absented himself from the office for two weeks, and during that period there do not seem to have been any particular concerns manifested by the complainant in relation to her work. After the return of the firstnamed respondent from this absence I accept her evidence and her parents' evidence that she became increasingly distressed by the circumstances in which she found herself.

I accept the complainant's evidence in relation to a number of incidents which, probably in isolation and certainly together, constituted "unwelcome conduct" within the meaning of section 28. These incidents were:

. The firstnamed respondent would spend about two-thirds of each work day engaging the complainant in conversation of a personal nature.

. During these conversations he would comment on her attractiveness, ask her to wear particular clothes and suggest they attend social outings together. On one occasion he spent almost the entire day trying to persuade the complainant to attend the movies with him. On that occasion she felt she could only leave the office by agreeing to the request. She went home and cancelled the arrangement.

. He discussed the complainant's fiance a great deal. He often denigrated him. He suggested she leave her fiance and stay with him as he would take her away on trips, escort her to restaurants and take her for rides in his sports car. On one occasion he talked of them sharing a penthouse.

. On at least 10 occasions each day Mr Mathews would require the complainant to make him coffee. On each occasion he would accompany her into his living quarters where she had to prepare this coffee. These living quarters were at the rear of his office and according to the complainant they contained a large rubber mattress, there was washing including underclothes on display and the sink from which she took the water to make the coffee was used by Mr Mathews to bathe in.

. She related how Mr Mathews would stand by the mattress while she made the coffee and comment on how pretty she was. She described her situation as being cornered by him between the sink and exit whereby she had to make excuses such as a need to go to the toilet in order to be able to get past him to leave the room.

. On one occasion whilst standing there he said to her that she could stay the night with him.

. The firstnamed respondent from time-to-time would put his arm around the complainant's shoulders and comment on the attractiveness of her clothes or say things like "I don't want you to take this the wrong way I have no sinister intentions".

. The firstnamed respondent requested the complainant to braid his hair.

. The firstnamed respondent would always use the female toilets rather than the male toilets in the building. The complainant said that he took this action for the purpose of disturbing the female occupants of the building. She said she did not like him doing this as she kept personal articles there. She said he had walked in on other females but not on her.

. On 24 February 1989, a Friday, the firstnamed respondent told the complainant he loved her and asked that she leave her fiance and marry him. He told her not to tell anyone. She was scared. After a weekend of stress and anxiety she terminated her employment at the first opportunity the following Monday morning.

The proposal of marriage was the culmination of a series of attempts to harass her which the complainant had done her best to avoid or resist.

The behaviour of the firstnamed respondent did not include actual attempts to physically embarrass the complainant, except in relation to two situations to which I have referred. One, he would from time-to-time place his arm around the complainant and pat her on the shoulder, which she regarded as unreasonable. Two, late in the period of employment he attempted to have her braid his hair, which seems to me to be an extraordinary request of a manager to make of any employee at any time. She rejected this request. These activities were only consistent with an improper attempt to bring about some sort of physical contact between him and her in a very difficult situation.

In regard to these incidents it is clear that words alone can constitute sexual harassment. In that regard I refer to the statement of Wilcox J in Hall and Ors -v- A and A Sheiban Pty Ltd and Ors [1989] FCA 72; (1988-89) 85 ALR 503 at 540.

Conduct is capable of being regarded as "unwelcome conduct of a sexual nature" notwithstanding that it consists of the making of absurd promises or declarations of love. It might be distressing to a female employee to have the ardour of her male employer constantly pressed upon her, in circumstances where she reasonably apprehends that any protest will jeopardise her continued employment.

I have no doubt that the proposals put by the firstnamed respondent to the complainant were quite absurd.

I am satisfied that there is no evidence (either from the complainant or the firstnamed respondent who attended part of the hearing and had an opportunity to give evidence but declined to do so) to suggest that she, in any way, reciprocated these attempts to gain her affection or in any way promoted the situation where he might have reasonably believed that she had any attitude of that kind. In fact, it seems to me, based on the evidence of the complainant in particular, that she did what she could in a very difficult situation to make it clear that she found the behaviour of the firstnamed respondent towards her unacceptable and of great personal embarrassment.

The complainant stressed in her evidence that an atmosphere of intimidation permeated her employment. She said that soon after taking up employment, Mr Mathews said to her that he had a criminal record and that he had ways of getting back at people particularly those who owed him money.

He told her on a number of occasions that he would take her to the "police complaints tribunal" to show how he gets back at people. She related how he told her that no one could win against him and he insinuated to her that if she said anything people would take it the wrong way.

She said that although she tried to tell him to leave her alone in several ways she was becoming scared of him and would basically sit and accept it. She referred to the effect of the difference in their size. He was physically dominating. She said she knew he could overpower her if she tried to do anything against his wishes.

This atmosphere of intimidation was exacerbated by the fact that the complainant and Mr Mathews were alone in the office day after day.

It seems to me that a young woman who is clearly in love and about to marry ought not to be confronted daily by an employer with attempts to alienate her affections and win her over to him; and it seems clear to me that the firstnamed respondent a man of many more years' experience as a manager and in a position of authority over her - was basically embarking on an attempt to seduce her, which she constantly sought to resist.

I accept the complainant's evidence that she was inexperienced, only 19 years old, new to the work-force, anxious to hold down her first job and was placed in a most difficult situation, being alone in an office hour after hour, day after day, with the firstnamed respondent and had little option than to attempt to tolerate this behaviour, in the hope that ultimately it would stop or that things would improve.

I am satisfied that there was a chain of conduct which amounted to unwelcome conduct of a sexual nature in relation to the complainant's employment.

Alleged Motives of Complainant

The firstnamed respondent attended the first part of the hearing and cross-examined the complainant. He made a number of attempts to suggest that this complaint was ill-motivated because the complainant had been interviewed by the police following allegations made by the firstnamed respondent as to the removal of some material from the office at the time she decided to leave the job.

The complainant responded credibly and with great self-restraint to the respondent's cross-examination most of which related to her motives and little of which touched on her actual allegations. I regard the firstnamed respondent's suggestions and imputations on her character, made during cross-examination, as totally without foundation.

It seems to me that the actions she took, on the advice of her father, to deal with the situation facing her (returning to the office early on the Monday morning and gathering up her belongings) were quite reasonable. I have got no doubt that the complaint to the police was one of many attempts to intimidate her and to prevent her from seeking any remedies in relation to his conduct. I also accept her evidence that she was not, in fact, aware of some of the options that she is now exercising until some time after the police had dealt with her.

Other Matters

Much of the evidence put before me related to the post-employment situation.

(1) Victimisation

I am satisfied that there has been a concerted and unending campaign of harassment of the complainant ever since she left the respondent's employment in late February 1989, and that the campaign of harassment is continuing. In addition to Mr Mathews' complaints to the police about the complainant, mentioned already, the campaign has also taken the form of phone calls or letters to her, her parents, her parents-in-law, her husband and her husband's employer.

That conduct though is not conduct that I can deal with under section 28 of the Act. However, there are provisions in the Act which are relevant to the matter. one is the Commission's power to make a declaration to refrain from continuing conduct and the other is the victimisation offence which is contained in section 94 of the Act.

I am of the view that there has been substantial material presented which warrants the attention of the Director of Public Prosecutions and the Federal Police in relation to whether or not an offence of victimisation has been committed by the firstnamed respondent, Mr Mathews, in relation to the complainant. I propose to refer these written reasons for decision to those authorities for examination in regard to

whether there should be a prosecution under section 94 of the Act.

(2) Compliance with Awards

There must be real questions in this case as to whether the original arrangement that was made with the complainant was a lawful arrangement within the industrial laws of Queensland, and I propose to refer the material that the Commission holds, including the material given in evidence to the relevant industrial awards body in Queensland for examination.

It seems to me, on the face of it, that this was an artificial device. The so-called "training" program appears to have been designed to enable the firstnamed respondent not to pay the appropriate award rates to people he employed on a casual basis. I am dubious as to whether training deductions of this kind are permitted by the awards that govern clerical employment.

(3) Referral of Prospective Employees

The firstnamed respondent appears to have sought to take advantage of an inexperienced, and possibly gullible, young person referred to him by the Commonwealth Employment Service. It seems to me that the conduct of Mr Mathews ought to be made known to the Commonwealth Employment Service with a view to it considering what future relationship it should have with businesses under his management.

Finding

I find the complaint substantiated.

Vicarious Liability of Employer

I am not satisfied that the secondnamed respondent, AAH-REM Pty Ltd, has discharged its responsibilities under s.106(2) of the Act as the employer of the complainant.

Accordingly pursuant to s.106(1)(b) of the Act, AAH-REM Pty Ltd should also be held liable for the actions of the firstnamed respondent.

Declaration

Pursuant to section 81(1)(b)(ii) of the Sex Discrimination Act I declare that the respondents Mr Mathews and AAH-REM Pty. Ltd. should refrain from any further contact or communication with the complainant and with the family of the complainant and any employers of her or her husband.

Pursuant to section 81(1)(b)(iv) of the Act I declare that the respondents, Mr Mathews and AAH-REM Pty. Ltd. should pay to the complainant damages by way of compensation in the sum of $6,000 in relation to the stress, humiliation, embarrassment and financial loss caused to the complainant.

Suppression of Complainant's Name

Pursuant to section 67 of the Act, I direct that any information that might enable the complainant to be identified shall not be published by any persons, in particular the media - press, radio and television. Contravention of this order renders a person liable to penalty under section 90 of the Act.

Dated this 7th day of March 1991

Commissioner Kevin O'Connor