Dobson v Humber [1992] HREOCA 1 (7 January 1992)

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

SEX DISCRIMINATION ACT 1984

MARIE DOBSON, DIANNE MAREE

CAREY and LEANNE MARGARET

PITCHFORD

COMPLAINANTS

against

EDWIN HUMBER

RESPONDENT

REASONS FOR DECISION OF HON. R.R. NETTLEFOLD

HEARING COMMISSIONER

HEARING: BURNIE, TASMANIA 6 & 7 JANUARY 1992

A complaint by each of the above complainants has been referred by the Sex Discrimination Commissioner pursuant to Section 57(1)(b) of the Sex Discrimination Act 1984, 'the Act' for an inquiry. Each complainant alleged that she had been sexually harassed by the respondent in contravention of the provisions of Section 28 of the Act.

The respondent is the Managing Director of Angrande Pty Ltd which is the operator of the Seacrest Laundry, Burnie. Angrande Pty Ltd was at all material times the employer of the complainants.

STATUTORY FRAMEWORK

The material provisions of the Act are as follows:

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 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 subsection (3) to conduct of a sexual nature in relation to a person includes a reference to the making, to, or in the presence of, a person, of a statement of a sexual nature concerning that person, whether the statement is made orally or in writing.

106 (1) Subject to subsection (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 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) Subsection (1) does not apply in relation to an act of a kind referred to in paragraph (1) (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.

CONSIDERATION OF THE EVIDENCE

Sworn evidence was taken from the parties and a number of witnesses at Burnie in Tasmania on Monday 6 January and Tuesday 7 January 1992 and submissions were received from counsel for the parties on the latter day. I now proceed to state the conclusions reached and the reasons for these conclusions.

Mrs Dobson was employed at Seacrest Laundry on 2 occasions, the most recent being March to December 1990. Her complaint related to this period of employment.

The substance of Mrs Dobson's complaint, as disclosed by the sworn testimony, is as follows.

She alleges that on one occasion during a cold morning the respondent said to her "How would you like sticking your hands down the front of my pants and warming him up". She says she did not say anything in response.

She alleges that on a number of occasions, when walking past her in the laundry, the respondent would grab her by her hips and move his hands across until he got past and that such contact was not rendered necessary by the circumstances of the employment, there being room enough to move past without any contact.

She alleges that on occasions the respondent would grab her breasts and smack her on the bottom. She says on some of those occasions his hand was placed on the outside of her T-shirt but on other occasions his hand was placed inside her T-shirt.

Mrs Dobson cannot recall the dates of these incidents. She says she made comments to the respondent on some of those occasions such as "piss off", "get out of it" and "you'll get caught one of these days".

She recalls that on 18 December 1990 shortly after 3 p.m. when she was working at the ironer the respondent walked up to her and, in effect, asked her how she enjoyed her sleep in at home that morning. She replied that she did not sleep in. She alleges that the respondent then placed his left arm around her back and took hold of her left upper arm. He then put his body up against her right arm, which got pinned behind her back and placed his right hand down her top and felt her breasts through her bra. During this time Mrs Dobson says that she was struggling and saying "get away", "piss off". She alleges the respondent then pulled his hand out of her top and ran his hand down her thighs and up on the outside of her vaginal area. She says he then ran his hand up to the top of her trousers and placed his hand inside her underpants on her "vaginal areas". She says she struggled free and that the respondent walked off.

On the next day, 19 December 1990, Mrs Dobson recalls finishing work at 5 p.m. She says she was in the staff room signing off when the respondent came in and sat down beside her. She alleges he put his arm around her shoulders and suggested that she could surely spare 15 to 20 minutes to stay behind and "have a bit of fun with him". Mrs Dobson says she replied "no, no" and that the respondent then got up and got a glass of coke out of the refrigerator. She recalls that one of the drivers, Chris Swain, had returned to the premises at about this time. She says she grabbed her bag and left, saying hello to Chris Swain as she passed him at the door. Mrs Dobson did not return to work at the laundry again.

Mrs Carey worked at Seacrest Laundry from 11 December 1990 to 8 February 1991 when she had an accident at work.

The following is the substance of Mrs Carey's complaint.

During the first three weeks of her employment she was being trained. She says that in that period she found the respondent quite pleasant but then he became more familiar and would "insist" on putting his hand on her hips or around her waist. Mrs Carey says she felt very uncomfortable and very uneasy when these things occurred. "In the early days" she says she asked Mr Humber to stop as she did not like that sort of manhandling. She alleges that in response Mr Humber would laugh or get angry or become abusive.

Asked to give clearer detail of the above matters of complaint Mrs Carey said "I recall at least half a dozen times that he put his arm around me. There was plenty of room for him to pass. He also put his hands on my hips, which felt uncomfortable, and I felt very very upset about it at the time and I said to Mr Humber that I did not like that sort of treatment".

She says that as a result of what happened she was upset and very anxious about going back into work again. She says she ensured that she was not the first staff member to enter the factory to commence work for the day.

She alleges that on 1 February 1991 when she was bending down over a trolley and sorting out some wet linen she was grabbed firmly on the buttocks by a person who pressed himself up against her.

She says that she turned around and saw that the person concerned was the respondent. She alleges that the respondent said "oh, that's nice". Mrs Carey says that her immediate reaction was to try and get out of that situation but she found herself "wedged in". She says "I went to the right and I went to the left, and Mr Humber repeated his previous action and grabbed me again on the buttocks. At that stage I pushed my way through Denise and Lorna who was standing on the left-hand side of the trolley".

Mrs Carey says that she barged past the other two ladies, Denise Bennett and Lorna Thorpe. She says that she turned around and asked the respondent why he had done that and he replied that Mrs Carey should not have bent over the trolley like that anyway. She says at this point Mrs Thorpe and Mrs Bennett laughed. Mrs Carey says she then went to speak to a co-employee Pam Wylie and said "look, I just can't put up with this sort of thing".

Mrs Carey says she then went to Denise Bennett, who was Mrs Carey's superior and the respondent's daughter, and asked her how she could stop the respondent doing these things.

Mrs Carey alleges that Denise Bennett replied to the effect that if Mrs Carey wanted to survive the day she should not say a word.

Mrs Carey says that as a result of what happened she felt very embarrassed, very upset, and "very sick and teary".

Mrs Carey says that later that day she saw the respondent and told him that if he repeated his earlier actions he would have to suffer the consequences of those actions.

On the Thursday of the following week Mrs Carey alleges that while standing behind the pressing machine the respondent came up beside her, put his hand around her waist, pressed himself against her for a few moments and then walked away. Mrs Carey says that the respondent's conduct on this occasion cannot be explained by reference to any alleged shortage of space in which to move as there was ample space for the respondent to move past without touching Mrs Carey.

At this stage Mrs Carey came to the conclusion that the respondent would not mend his ways and that she must leave as soon as she had got another couple of pays to help her family with some financial commitments. However on the next day Mrs Carey injured her back at work and has been off work on worker's compensation ever since. She does not intend to return to work at the factory.

Miss Pitchford worked periodically at Seacrest Laundry from the age of 17 on both a full time and casual basis. In July 1989 she commenced a 12 month period of full time employment at the laundry.

The substance of Miss Pitchford's complaint is as follows.

Miss Pitchford complains that on about half a dozen occasions the respondent put his arm around her and touched her on the breast. She says on these occasions she moved away and said "don't". She says she did not consent to any of these acts, that she did not like them and, when they occurred, she felt uncomfortable and nervous. She says she could not leave the job because she could not find employment anywhere else.

Some of these allegations may refer to acts done quite a number of years ago as the evidence which relates to the time when the acts are alleged to have occurred is vague.

Miss Pitchford complains that during the period of full time employment commencing July 1989 the respondent "started to get friendly and started to approach me a bit more and touch me more".

She says she is quite sure it was a Saturday when she was working back at the laundry when the respondent came up behind her and put his hand around her waist and tried to undo her jeans. She says she grabbed his hand and moved it and moved away and told him not to do that. She alleges the respondent said "why did you do that" and grinned and walked away. She alleges that on one occasion during this period the respondent asked her to stay back after the other workers left. He said "them sheets look comfortable". She says she did not stay back and that the suggestion made her feel nervous.

Miss Pitchford alleges that on some occasions during this period when she would be drying cups while standing beside the sink in the staff room the respondent would rub his hands up her thighs up to her hips. On these occasions she was wearing the laundry uniform which was a dress. Miss Pitchford says she would brush his hand away and tell him not to do it. She alleges he would just grin and walk out. She said "he ran his hands up my thighs a couple of times, about". She says she did not like being treated like that as it made her feel "runny".

The substance of the respondent's answers to the complainant's allegations can be stated very briefly. It simply is a complete denial of each and every allegation. This is not a case where it can be suggested that the allegations may be explained on the basis that the complainants are mistaken. This is not a case where it can be suggested that the complainants have misunderstood and misconstrued some conduct of the respondent which was in fact innocent. The incidents were starkly unambiguous. Error of recollection cannot be called in aid by way of defence. A normal person does not forget the essential features of any act of serious personal abuse which that person has suffered. Indeed, that is one aspect which contributes to the seriousness of personal abuse involving a sexual element.

I accept the following evidence given by Mrs Janet Singline a co-employee of the complainants at Seacrest Laundry.

Mrs Singline says that on one occasion, before she became a supervisor, she saw the respondent come up behind the complainant, Mrs Dobson, and put his arms around her waist and say to her "you'd be good in bed" She says Mrs Dobson "sort of shuddered".

Mrs Singline said "there were stupid little things like round the back of the machine when he (i.e. the respondent) was always carrying on, being stupid, but it is hard to put my finger on a specific thing".

Mrs Singline says she frequently received complaints about the respondent from Mrs Dobson in the following terms, namely, "oh, that dirty old bastard". Mrs Singline said she would respond by saying "just tell him to piss off if you do not like it". She says that once or twice she said to Mrs Dobson words to the effect, "what is going on"? or "what is wrong with you"? and Mrs Dobson would reply "oh, he grabbed my boob" or something. Mrs Singline says she would reply to the effect that Mrs Dobson must go back and tell the respondent firmly that she did not like it.

On one morning when she arrived at work Mrs Singline recalls seeing Mrs Dobson outside the factory sitting in her car. She says she asked Mrs Dobson what she was doing and Mrs Dobson said she would not go into the factory by herself because she was scared of the respondent. Miss Pitchford confirms this aspect of Mrs Singline's evidence. Miss Pitchford said that, when she arrived at work in the morning, Mrs Dobson was "always" sitting in her car. Miss Pitchford said that Mrs Dobson would not enter the laundry until there was somebody else to enter with her.

Mrs Singline says that on the day she saw Mrs Dobson sitting in the car outside the factory, or a couple of days after that, Mrs Dobson said "never ever leave me around the back by myself". She says that Mrs Dobson had said to two or three girls "If I am around the back by myself come around". "Around the back" refers to the back of the ironer where what took place was often concealed from all, except the actual participants, because of the height and generally the size of that piece of machinery.

I accept the following evidence given by Mrs Dobson's husband, Gary Dobson.

During the 9 months March to December 1990, he noticed a change in his wife. She became a lot more irritable, moody and seemed to lose her temper a lot more easily. He says their sex life "went downhill". However, he says since she has left the laundry she has gone back "to more or less the same as she was before she started working at Sea-Crest" although she suffers from an ulcer now.

Mr Dobson recalled that one day in December 1990 he came home from work to find his wife very upset. He says that with some reluctance she complained of the conduct which

Mrs Dobson alleges occurred on 18 December 1990.

The respondent's witness Christopher Swain said in evidence that there were rumours about the respondent to the effect that sometimes he made suggestions to some of the girls. He says some of the rumours related to the respondent's conduct towards Mrs Dobson.

Lorna Thorpe was a witness for the respondent. The content of some of her evidence and particularly the way in which the evidence was given, made it apparent that she was engaging in advocacy on behalf of her employer, the respondent, and not carefully searching her recollection for the truth. However, even she deposes to receiving an angry complaint from Mrs Dobson, a complaint which relates to the incident on 18 December 1990. She is in conflict with Mrs Dobson as to what the conversation was.

As to that conflict, I have a strong preference for the version given by Mrs Dobson.

I also reject the evidence of Mrs Bennett, the respondent's daughter. She also engaged in advocacy, which was exaggerated and in essential respects untrue.

A careful consideration of the personalities of each of these complainants is helpful. Any suggestion that Mrs Dobson's substantially contemporaneous complaints were cunningly contrived to serve some self serving financial end will not survive a consideration of Mrs Dobson and her circumstances of that time. At the time she made those complaints she did not realise that some day they may be to her financial benefit. She does not have the personality to carry a false story through contested proceedings. At the time she complained she saw the complaints as endangering her income from her work, an income which she and her family badly needed.

She complained because she sought in vain for protection from the respondent.

Mrs Carey has a strong personality and she was not slow to let the respondent know that she was aware that, one day, he may face retribution. Mrs Carey is a lady with a strong and appropriate sense of self-worth. She deeply resented the respondent's behaviour and correctly saw it as a totally unacceptable affront to her dignity. The suggestion that the substance of Mrs Carey's complaints is false is unacceptable.

Miss Pitchford presents as a person with a markedly different personality to either Mrs Dobson or Mrs Carey.

She describes herself as having a "handicap". When expressing herself in that way she is referring to the fact that she is "a slow learner". It was that classification which led to her being a student in a special school. Miss Pitchford is a highly unlikely candidate for the role of the false witness getting through a strongly contested hearing with her evidence unshaken. In fact her evidence was not shaken. There is a very simple straightforward reason for that; her evidence is, in substance, true. There is another aspect of Miss Pitchford's evidence which deserves attention. The respondent's wife, and to a lesser extent the respondent, helped her a great deal in her battle to achieve a reasonable quality of life despite her handicap and unpromising social circumstances. I have formed the belief that Miss Pitchford is not the kind of person who would repay such kindness with deeply wounding perjury.

The respondent would not concede the most minor indiscretion. Not for him any foolish trespass, to any the least degree, beyond the boundaries of propriety. That case is in serious conflict with the weight of the evidence.

Another unsatisfactory feature of the respondent's evidence was that he was prepared to assert wholly unqualified propositions of fact when a fair consideration of the circumstances makes it apparent that, unaided by a contemporary note, he could not honestly make those assertions.

Two examples may be given. First, he says that on 19 December he did not leave the electrician at all. So he was not in the staff room at 5.00 p.m. as alleged by Mrs Dobson but at this stage, how does he know?

Second, on the occasion of one of the Carey incidents he says he could not have been where Mrs Carey asserts he was even for the short period it would take to do the relevant acts.

The respondent is an example of a familiar type of witness, a witness who will not come to grips with the allegations against him because he fears that, if he does, he will end up confirming them.

I have considered carefully the evidence given by Mr Swain. His evidence does not lead me to doubt the correctness of the conclusions reached.

The likelihood is that because of the demands of his work he did not see the incident involving Mrs Carey which occurred on 1 February 1991. In relation to the incident of 19 December 1990 the subject of the complaint by Mrs Dobson, Mr Swain's evidence leaves open the possibility that he did return to the laundry as alleged by Mrs Dobson. If he did return there as Mrs Dobson alleged he could very easily forget what he saw, as on the evidence of Mrs Dobson there is nothing at all remarkable about what was taking place at that stage. On her evidence at that time Mr Humber was simply getting a drink from the refrigerator.

I reject the evidence of the respondent. I accept the substance of the evidence of the complainants.

This is not a case where one need be troubled about the limits of the concept "sexual harassment in employment". On the findings made it is clear that each complainant has made out a case of sexual harassment in employment contrary to Section 28 of the Sex Discrimination Act 1984.

I find the complaint substantiated. Applying the principle of vicarious liability contained in Section 106 of the Act, I find that as the company Angrande Pty Ltd has not discharged its responsibilities under Section 106(2) of the Act it is also liable for the acts of sexual harassment committed by the respondent against each of the complainants.

Having made these findings, in accordance with the arrangement made with counsel at the hearing, I refer the matter back to counsel to give them the opportunity to negotiate on the question of the relief or remedy which should be granted to each of the complainants.

If those negotiations do not resolve that matter I will resume the inquiry to receive further submissions.

Dated this 25th day of February, 1992 in Hobart, Tasmania

Signed. Robert R. Nettlefold

Note: On 20 July 1992 the solicitor for the complainants advised the Commission that it could regard this matter as having been settled between the parties.