McCartney v Sadak and Albert Shire Council [1992] HREOCA 9 (22 June 1992)

Human Rights and Equal Opportunity Commission

Sex Discrimination Act 1984

No. H91/16

Between:

Anne McCartney

Complainant

and

Mark Sadak

First Respondent

and

Albert Shire Council

Second Respondent

Reasons for Decision of Susan Kiefel, Q.C.

Hearing Commissioner

Hearing: Brisbane, Queensland

13th, 14th and 17th February, 1992

Appearances: Mr Murphy for the Complainant

Mr McConaghy for the First Respondent

Mr Ure for the Second Respondent

Background

On 11 September, 1986 the complainant commenced working as a member of a gang on a project undertaken by the second respondent, the Albert Shire Council. It is not disputed by the second respondent that the project was one undertaken through a Commonwealth Employment Program. The complainant ceased that employment on 14 October, 1986.

The Complaint

The complainant says that she was subjected to sexual harassment by the ganger in charge of the works, the first respondent. She says that the conduct directed to her commenced from the first day of her employment, when he pinched her on the buttocks. Thereafter, she says, he would regularly walk past her and touch her breasts whilst making comments about them; he put his hand on her leg on one occasion; whilst lying down resting in her lunch hour on one occasion he touched her on the thighs; and he made a comment to the effect that he could see parts of her body not covered by her clothing. Additionally, she says that on some occasions he touched or held himself in a sexually provocative manner (whilst clothed).

The complainant says that she was not however the primary target of his attentions. Most of his comments were directed towards her friend who also worked on the gang, Ms Goodluck. Much of the conduct directed towards Ms Goodluck took place in front of the complainant. The complainant also says that the first respondent sometimes touched another female member of the gang - but apparently she took no exception to it. On occasions, she says that the other male personnel on the gang responded to the ganger's conduct by comments and that they often called out to women passers-by. This was the atmosphere in which the complainant said she worked.

The complainant says that the advances were unwelcome and that she "abused" the first respondent on every occasion that they occurred. She initially said that she felt "scared" of the first respondent, but it later appeared that this was something which arose following the termination of her employment and not during it. The question as to what disadvantage she in fact perceived during the course of her employment is a matter I shall refer to later. For present purposes it is sufficient to outline that she considered that the effect of rejection of the advances was that the ganger singled out herself and Ms Goodluck and complaints about their work followed.

Mr John Nielsen who gave evidence for the complainant was also a member of the gang at the time. He said that he had observed the first respondent touching Ms McCartney on the breasts on some occasions and had observed similar conduct with respect to other female personnel. He had heard the first respondent using a slang expression descriptive of womens' breasts. He said that a position of conflict developed between the two women and the first respondent and that he then observed that the first respondent pushed the two women to work harder. He said that he considered that approach was more than what was called for in the circumstances.

The complainant and her witness, Ms Goodluck, both gave evidence that on 14 October, 1986, after a confrontation with the first respondent, the Technical Officer, Mr Dussek, spoke to them. At that time Ms Goodluck (and then the complainant) made their allegations. Mr Dussek, after speaking to other members of the gang, then took them to see Mr Rush, the District Works Supervisor. They reiterated their allegations to him and said they wished to resign. At that point Mr Rush offered to terminate their employment himself.

The Response

The first respondent denies each incident alleged. He denies touching the complainant in the manner complained of; speaking to either her or Tara Goodluck in the manner alleged; and he denies touching himself in a suggestive manner. He also said both in his statement and in his evidence that he did not understand the slang term he was alleged to have used in the description of the complainant's breasts, and he did not understand other suggestive language attributed to him (although with respect to at least one term he said he had heard it on previous occasions but did not know what it meant). When asked whether he used such a term during the course of the particular employment he said not, but that he might use it outside the job. His demeanour in giving evidence gave the impression that he had difficulty in expressing himself in and understanding English.

The first respondent said in his statement that there was a degree of "friendly teasing" amongst the employees but that teasing did not include the conduct alleged. He explained that Ms Goodluck was employed prior to the complainant. When the complainant joined the gang her work was not altogether satisfactory and Ms Goodluck's work performance declined. When he attempted to separate them (since they spent much time talking, on his evidence) they became aggressive towards him. He did this very shortly prior to the events of 14 October, 1986.

The first respondent said that Mr Dussek was the first to complain about their work; that he followed up with a complaint himself a few days later. On the day they ceased employment he complained of their conduct to Mr Dussek - and this followed from the event the day before when he had split them up and they had become aggressive towards him.

Mr Dussek said that he had observed the deterioration in the work of the complainant and Ms Goodluck. Prior to 14 October he had not heard any allegations of sexual harassment. On 14 October he was watching them load a barrow with sand and noticed that they stopped frequently to talk. He took it upon himself to approach them and told them to stop talking and to get on with the job. He says that the response to this was that Ms Goodluck said that she was doing as much work as the men, she had had enough of the job and wanted to be taken to see Mr Rush to make a complaint about the first respondent. She then proceeded to expand upon her allegations as to his conduct. The complainant then made her complaint. Mr Dussek then spoke to other members of the gang. He asked them if there was

anything he could do to protect them on the job from any harassment and their response was that they did not wish to stay. (The complainant and Ms Goodluck this). He then took them to see Mr Rush.

Mr Rush says that Mr Dussek arrived and advised him he was having problems with their work and that it was not up to the standard he required. It was when he proceeded to interview them that they made the allegations against Mr Sadak. He offered to call in Mr Sadak but they said they would rather be sacked as they were not prepared to return to the gang. He did not believe they were sincere in their allegations - in particular because they were not prepared to allow him to investigate the matter further. In his view they did not wish to work and wanted to return to accepting Social Security benefits. However, he believed that if they resigned they would not be able to claim Social Security benefits automatically. On the other hand, if they were sacked they would receive the benefit almost immediately. He therefore terminated their employment.

The Witnesses/Issues of Credit

I do not think Mr Rush's evidence can be of much assistance in these proceedings. Mr Rush had almost no independent recollection of conversations. Reliance upon him as to what was said by the complainant and Ms Goodluck would be misplaced. Further, it seemed to me that he had formed a strong opinion that the complainant and Ms Goodluck simply wished to return to Social Security benefits rather than work and this view was based largely upon what Mr Dussek said to him. It was with that background that he heard the allegations of sexual harassment. I consider his evidence was clouded by the opinion he had formed.

In an important respect the evidence of Mr Rush and Mr Dussek does not square. Mr Rush said that he was approached by Mr Dussek complaining of the girl's work and it was only when that was raised that they came out with the allegations of sexual harassment against the first respondent. The complainant and Ms Goodluck both said that Mr Dussek was with Mr Rush for some twenty minutes before they were called in. It is hard to accept that if Mr Dussek had spoken to other members of the gang concerning the allegations (as he said he had done) he would not have conveyed this promptly to Mr Rush.

Mr Dussek's evidence, where it is relied upon to contradict statements made by the complainant and Ms Goodluck, is I think, coloured by his view that the only problems that he observed were related to their work and were created by matters personal to the complainant and Ms Goodluck. This overlooks of course the fact that Mr Nielsen said that he had told Mr Dussek that the first respondent was treating the girls badly and "picking on them". This does not appear to have been investigated at all.

Mr Dussek then gave evidence that on 14 October he initiated the conversation with Ms Goodluck by speaking about the quality of her work. The complainant and Ms Goodluck both say that the incident arose from a conversation with Mr Sadak who then complained to Mr Dussek. In this they are supported by Mr Sadak himself who said that on that occasion he complained to Mr Dussek who then spoke to Ms Goodluck.

The evidence of Mr Dussek and Mr Rush is relevant to questions of credit affecting the complainant and Ms Goodluck. I consider there are good reasons for not preferring the evidence of Mr Rush and Mr Dussek. In any event they were not present at the worksite all the time - so as to be able to say whether the conduct complained of took place or not.

I should add I place no reliance upon the evidence of Mr Dussek as to what other employees said to him about whether the conduct complained of had occurred. They were not called as witnesses. Their evidence stands in conflict to that of the complainant and her two witnesses and thus could not be regarded as logically probative.

It was also suggested that the opinion held by Mr Rush (that the complainant and Ms Goodluck simply wished to return to Social Security benefits) was of itself an inference which could easily be drawn. I do not think that such a view is compelling. The complainant (and Ms Goodluck) had made efforts to obtain employment in a climate of high unemployment. They undertook the position with the gang when it was offered. They continued to make efforts thereafter to obtain employment. On 14 October they were both prepared to resign. On Mr Rush's understanding this would have meant disentitlement from Social Security benefits for about six weeks, although I am not sure that this is in fact correct.

The further matter affecting the complainant's credit relates to a description of the conduct of the first respondent. In her statements the complainant said that on one occasion the first respondent grabbed her between the legs. When tested in cross-examination she conceded that what had in fact occurred was that he had placed his hands on her thighs. The word "grabbing" in this context is then exaggeration and it is liable to convey a mistaken view of the events. This mistaken view appeared in the statement of issues, although I note that the statement of issues was not settled by the complainant. The complainant conceded that the words in her complaint and her statements did not convey what had taken place. Reliance was placed upon her response - to the effect that she wanted the first respondent to "get into trouble". She denied however that she had exaggerated the description of events to achieve that end.

I do not think an inference adverse to the complainant's credit ought to be drawn from the response. It is indeed quite credible that a complainant would in fact wish a respondent to "get into trouble", in the sense that the complainant wished that person to be dealt with for the wrong which she believed had been committed against her. Whilst, as I have said, the word "grabbing" is an exaggeration in language, it does not necessarily follow that the complainant invented the occasion.

I am persuaded that the matters complained of did occur. I place some considerable weight upon the evidence of the independent witness, Mr Nielsen.

Sexual Harassment

The conduct I have referred to constitutes sexual harassment. If section 28 were to apply the necessary "detriment" can be found in the "sexually permeated work environment" itself: see Freestone -v- Kozma (1989) E.O.C. 92-249 at 77, 377 and Hall -v- Sheiban (1988) E.O.C. 92-259 at 77, 379. Further, one can readily infer that the first respondent was in a position to disadvantage the complainant in terms of the nature of the work she was to undertake and by complaining about her to Mr Dussek.

Section 26

Mr Murphy, who appeared for the complainant, conceded that the second respondent is an instrumentality of the State within the meaning of section 13 (and see the definition section, section 4). That was a proper concession given that a local authority in Queensland is established to give effect to the purposes of the local government legislation and those purposes are clearly public purposes.

Mr Murphy however submitted that, whilst section 28 may therefore preclude liability, liability attaches pursuant to sections 26 and 106.

As I have said earlier, it was conceded by Mr Ure for the second respondent that the complainant was employed on a project funded by a grant under the Community Employment Act 1983 (Cth). The program was directed to the employment of people. As Mr Murphy argued, the very function to be fulfilled by the second respondent (and its employees) was the employment of people on the program pursuant to that Act.

I am not dissuaded from the view I expressed in A. -v- Caboolture Shire Council. It seems to me that the discrimination of which section 26 speaks can include sexual harassment. There is no reason I can see to read down section 26. Where that section speaks of it being unlawful to discriminate against another person on the ground of the sex of that person, that does not mean that harassment is to be excluded from the species of conduct which amounts to discrimination by reason of the sex of a person. Section 28 then remains relevant at least with respect to what may constitute harassment, although its definition is not exhaustive and should not be given an exhaustive or restrictive meaning: Hall -v- Sheiban supra.

Damages

The complainant was subjected to continual harassment. She had to work in an environment affected by the first respondent's conduct. She found his conduct towards her distressing. It was suggested to me that because the complainant herself was able to use coarse language in response to some of the conduct, I ought to infer that she was not unduly sensitive. I do not think that follows at all. The way in which people from different backgrounds communicate their feelings is not always a reliable indication of the level or intensity of the distress they are feeling. From my observations of the complainant whilst she was giving evidence, I consider that she was genuinely and quite deeply upset, and that those feelings remained with her for some time. Her self esteem, whilst she was later unemployed, was also impacted upon.

Mr Ure agreed that the amount of wages the complainant lost was in the order of $2,000.00.

Conclusions

1. I find the complaint substantiated.

2. I declare that the second respondent, by its foreman, engaged in unlawful conduct (section 106) and that there is no defence shown under section 106(2).

3. I declare that the respondents should pay to the complainant general damages by way of compensation in the sum of $7,500.00 which includes compensation for lost wages.

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

Susan Kiefel, Q.C.

Dated: 22nd June, 1992