Gamble v Tune [1993] HREOCA 1 (18 January 1993)

Human Rights and Equal Opportunity Commission

Sex Discrimination Act 1984

No. H92/9

Between:

Cheva Gamble

Complainant

and

Clive Tune

Respondent

Reasons for Decision

of the Honourable, W.J. Carter, QC, Inquiry Commissioner

Hearing: Coolangatta, Queensland

Dates: 19 and 26 October, 1992

The complainant, Cheva Ruth Gamble, is a young woman who was aged seventeen years at the date of this hearing. She had left school in Grade 10, having attended the Palm Beach/Currumbin High School in 1990. In December of that year she obtained her first employment in the respondent's real estate office in Coolangatta as a clerk/receptionist.

On 25 March, 1991, about three months later, she complained to the Human Rights and Equal Opportunity Commission of sexual harassment. She left the employment shortly after that.

The complainant was delighted at the fact that she had obtained the employment so soon after leaving school. She presents as a pleasant, apparently well mannered and motivated young person and her evidence, and the manner in which she gave it, left me in no doubt about her intention to improve herself, to achieve the best in the employment for herself and her employer and to satisfy all of the reasonable requirements of her employment.

Within a few months of her commencing this work her self esteem was threatened; she was unhappy and morose; she had lodged a substantial complaint of sexual harassment and shortly thereafter left her employment and attended at the Commonwealth Employment Service (CES) in an attempt to obtain other suitable employment.

This remarkable change in her circumstances over such a short period, she asserts, was occasioned by the manner in which her employer treated her in the employment, in short, that he harassed her sexually to the point that his persistent conduct towards her became intolerable and this caused her to leave.

I need to expose in greater detail the matters which she alleges against the respondent, an elderly man, 74 years of age, who has for many years engaged in business as a real estate agent. Before I do that I should record the fact that the complainant impressed me as a truthful witness whose demeanour, when she was tested in cross-examination, revealed a young, obviously immature but relatively composed, young woman whose frankness and ready responses seem to be wholly inconsistent with the submission for the respondent that her evidence was deliberately contrived. As will appear there is a body of other cogent evidence which tends to support that of the complainant. However, my present purpose is merely to record my assessment of her credibility as a witness when revealing facts in circumstances which were quite stressful.

Shortly after employment commenced she detected the signs of "unwelcome sexual advances" by the respondent. He stood unnecessarily close to her and with the pretence of picking up something on her table, would allow his hand to brush against her breast. Her well founded concern at this behaviour was later accentuated by the more explicit harassment of her. At Christmas time the respondent requested "a kiss for Christmas". As she proceeded to kiss his cheek he took her face in his hands and attempted to kiss her lips. They were alone in his office. She rejected this advance and quickly left the room.

After Christmas I am satisfied that the situation deteriorated significantly. In the course of her working day the respondent persistently touched her breast and her bottom in a manner which was overtly sexual and deliberate. These gestures occurred irregularly but nevertheless persistently - daily for a day or two and then perhaps on two or three other times per week. On a number of occasions the respondent asked the complainant, "Are you having sex with your boyfriend?".

The evidence of the complainant which I accept detailed other major incidents. On one occasion whilst both were in the course of a property inspection the respondent remarked, "I want to share my blood with you. I want to make babies with you". On Valentine's Day (14 February, 1991) the respondent requested the complainant to kiss him. He took her arms and pulled her close to him. It was near the end of the working day. She pulled away, grabbed her bag and left. On another occasion, 23 March, 1991, they were engaged in another inspection of a flat which the agency had to let. Whilst they were inside the flat the respondent again grabbed the complainant by both arms and attempted to kiss her lips. She rejected his advance and left. Outside of the flat he said to her, "I didn't touch you". She detailed yet another occasion when the respondent requested a kiss in return for her pay cheque.

Apart from these events the complainant was persistently touched by the respondent on or about her breasts and on her bottom in the course of her working day.

This course of conduct was, I am satisfied, particularly disturbing and upset the complainant until finally she rang a Telecom operator and asked "for the name of the place where I could complain about my boss". She was referred to the Commission.

Her written complaint is dated 25 March, 1991. Her reaction to this conduct can best be summarised in her own words: "He used to just treat me like a bit of dirt"; "I was just feeling hopeless"; "I didn't feel very good about myself"; "He's got no right to do that to me"; "I was moody . . . I didn't like to talk about it and I kept it inside and I was getting angry".

In fact the complainant kept from her mother her concerns about the respondent's conduct until on or about the day on which she left.

On that day the complainant believes that he had touched her that morning; that later that day there was tension in the office because the reconciliation of the trust account was "out" by three cents. The respondent was angry and left; so too did the complainant who spoke to her mother and a solicitor and she and her mother thereupon confronted the respondent and told him that the complainant would not return. The respondent held his arm out and said, "Come around here Cheva and we'll talk about this". She replied, "I'm not going around there so you can touch me again". She and her mother then left. There is evidence of a confrontation between the complainant's mother and the respondent in which the respondent allegedly made reference to the poor state of his libido but in my view nothing really turns on this. I would prefer to look beyond the evidence of Mrs Gamble for other evidence which is capable of providing support for the evidence of the complainant. That is not to say that I regard Mrs Gamble's evidence as unreliable. I would prefer to look for supporting evidence from more independent sources.

Before I refer to that evidence I pause to mention the evidence of the complainant to the effect that her persistent rejection of the respondent's advances was almost invariably the occasion for an angry or negative response from him whereupon he would harshly criticise her or her work. Again to use the words of her evidence: "If I didn't do anything that he asked, or if he done something to me that I didn't like, I would argue with him and he would start getting nasty and saying horrible things".

In her original complaint to the Commission the complainant, after referring to a particular incident, said that "when we got back to the office I wrote that I was sick and tired of Clive touching me". She later revealed in the course of the Commission's investigations of her complaint that this was a reference to what she had written in an office diary. The diary was summonsed for production and at the hearing the relevant entry made on 29 January, 1991 was found to read: "I'm going to quit in one week. I am sick and tired of Clive touching me and yelling at me".

The complainant gave evidence, which I accept, that when the respondent read this entry he demanded that she cover the writing with "whiteout" - a substance known as liquid paper which is used in office work to make erasures in documents. She complied. Evidence was given by the respondent and a salesperson, Mrs Peterson, concerning an alleged incident in which the complainant resigned on a Friday but returned and apologised on the following Monday. The thrust implicit in this evidence appeared to be that the complainant having written the entry in a fit of pique later erased it herself when she had returned apologetically to work on the Monday. I much prefer the complainant's denial concerning this. Mrs Peterson gave evidence that she and the respondent later removed the whiteout to reveal the writing after the complaint had been made and after the respondent's solicitors had been informed that the Commission was aware of the diary entries.

A further entry in the diary for 6 February, 1991 was also made by the complainant. It reads: "To new secretary: I hope you enjoy working here. Read previous things and I hope it will help you". After writing that, the complainant herself later covered it with whiteout because of her fear that the respondent would be angry and might "fire" her.

I am satisfied that these contemporaneous entries in the diary very vividly reflect the state of mind of the complainant at the time when she wrote them. She was concerned, no doubt confused, but above all she was obviously intent upon manifesting in some way her dislike of the manner in which she was being treated. She wished to record it - perhaps in the hope that it would deter the respondent. There was little risk that the writing would not be detected later. It was a somewhat amateurish device which was probably intended to relieve her confused state of mind. This was her first job; she wanted to be in employment; she did not want to have to pay the price of sexual harassment to remain in employment. Whatever her thoughts at the time, the entries provide a valuable insight into her concerns and provide some measure of the degree of her rejection of what she had had to bear. One cannot sensibly attribute to this 15 year old young woman, in making these diary entries such a degree of foresight which would urge her to fabricate and to engage in deceitful and devious conduct of a kind which might ultimately assist her in litigation. I am satisfied that at the time when the entries were made litigation was the thing furtherest from her mind.

There are four other witnesses whose evidence has assisted me in my findings. I will deal with each in turn.

Jason Andrew Bradshaw, a young man aged about 16 years at the material time was then working at a "727 Store" near the office of the respondent. The complainant sometimes went to the store to buy a drink. She and Bradshaw became casual friends. On one occasion Bradshaw said to her words to the effect: "I'd be careful with Clive because he can be a bit of a running hand man". He was referring to discussions he had had with one Jodi Louise Cox who had previously worked in the respondent's office in the position then occupied by the complainant. She too had sometimes visited the 727 store to buy goods. According to Bradshaw the complainant replied in words to the effect: "Yeah I know, I've already found out". On later occasions he spoke to the complainant in the shop. He said that on one occasion she was "really upset and crying" and on other occasions agitated. When he sought to console her, her persistent complaint related to the respondent's sexual harassment of her.

Miss Cox gave evidence. She is also a young woman who, in May 1990 when she commenced work with the respondent, was aged 17 years. She left the employment in December 1990. It seems that the complainant probably followed her into the particular job in the respondent's office. She and the complainant, event at the time of the hearing, were strangers to each other.

Miss Cox described a variety of acts committed upon her by the respondent whilst she was employed by him and which equate with those alleged by the complainant and which plainly constitute sexual harassment - touching her body unnecessarily, raising sexual topics for discussion with her, such as rape, and attempting to hug and kiss her. Miss Cox acknowledged that the respondent had given her notice because her work "was not up to par". However, there was nothing to suggest in her evidence nor in the way in which she gave it, that she was vindictive or that she was intent on fabrication. Her earlier complaints to Bradshaw are consistent with her evidence given under oath.

Again, in the course of investigating the complaint the Commission obtained certain information from the Queensland State Office, Department of Employment, Education and Training, and as a result a summons was issued to the Department to produce at the hearing a letter in the possession of the Department which it was said evidenced a further complaint by yet another young woman who had been employed by the respondent. An officer of the Coolangatta CES appeared in response to the summons and produced the document, which became exhibit 6.

This document was accepted as original evidence of the fact that a Ms Tammy Halfacree, a former employee of the respondent, had also lodged a complaint of sexual harassment with the Department against the respondent. During an adjournment Ms Halfacree was located and was called to give evidence of the truth of the contents of the complaint. She swore an affidavit (exhibit 16) and gave oral evidence at an adjourned hearing of the matter.

Ms Halfacree was employed by the respondent in about March 1990. She also is a stranger to the complainant and Jason Bradshaw and had spoken to Jodi Cox casually on only one previous occasion. She described the latter as "just an acquaintance". She gave evidence of being touched on the breast, the back of the neck and on her bottom from time to time; that the respondent had grabbed at her waist to tickle her; that he grabbed her leg tightly and asked her to sit close to him. She rejected this behaviour and this appeared to upset him. He frequently discussed her boyfriend and told her, "Jason is just using you up". He asked her to accompany him on an outing and promised that "he would treat me like a gentleman". As with Ms Cox he spoke to Ms Halfacree about rape saying, "There is no such thing as rape. The girl always gives in".

Ms Halfacree terminated her employment with the respondent because of his harassment of her and she informed the CES of her reasons for leaving. It was on that account that the document exhibit 6 became part of the Department's file.

Finally, reference should be made to the evidence of Robert John Bailey, a real estate salesperson employed by the respondent and who was called to give evidence on his behalf. He gave evidence of an occasion on which the complainant said words to the effect, "I'm sick of this, fed up with the whole thing". He asked her what she meant and the complainant said words to the effect that, "Clive had brushed past her breast or similar wording to that". This conversation took place very near to her ceasing employment. The complainant herself had given evidence of referring her concern to Mr Bailey with whom she was on good terms and his evidence, whilst not in its detail the same as that of the complainant, tends to confirm her evidence that her complaint to him was that the respondent had acted wrongly towards her and in a manner which was unacceptable. Mr Bailey had commenced work at the respondent's office in late January 1991.

The respondent himself denied any impropriety involving the complainant and vigorously denied the complaint of sexual harassment. The respondent presented as an unimpressive witness but care must be taken in making such an assessment because the respondent does not now enjoy good health and evidence to this effect was called from his doctor and at the adjourned hearing from Mr Alan Chittenden, a psychologist who examined the respondent after he had given evidence. He described symptoms of vagueness and forgetfulness and referred to the condition of dementia. In assessing the weight to be given to this evidence, I have also taken into account the fact that the respondent is still actively engaged in the business although his involvement is reducing and in addition, I noted with care his performance as a witness. He readily understood the questioning and his ready responses, marked as they were with vigorous denials, suggest a man who is well capable of attending to the affairs of his daily life. On the other hand I have taken into account Mr Chittenden's opinion which focuses inter alia on his failing memory and his tendency to be vague.

It was submitted for the respondent that his increasing age and reducing libido was such that it was inherently unlikely that the respondent would engage in the sexual harassment of a young woman aged 15 years. The experience of life suggests that the sexual motivation and drive of any person is a complex phenomenon and quite variable. In the light of all of the evidence the submission is not so cogent as to persuade me to reject the compelling evidence of the complainant and the other witnesses which supports the allegation of sexual harassment of her by the respondent. Nor do I see it as part of my duty to have to make a specific finding as to the respondent's motivation for his unlawful conduct towards her.

The respondent's son, Douglas Raymond Tune, denied any knowledge of his father's alleged behaviour. He gave evidence that on one occasion the complainant was very upset and crying and when he inquired as to the cause of her distress, the complainant said, concerning the respondent, that he was a "dirty old man". After she was composed he returned and said that she had made a "fairly major statement" and asked could she tell him about it. She replied, "Forget it".

Her statement to the respondent's son is, of course, consistent with her complaints and her response to the son's request for further information is consistent with her reluctance to discuss the respondent with a member of his family. In any event I am not greatly assisted by this evidence. The son's evidence is equivocal in an overall sense in that, apart from the incident described, he was ignorant of the complainant's concerns and observed no impropriety. On the other hand actions of the type described are often subtlety executed and occur at times when detection is unlikely. I have referred earlier to the evidence of Mrs Peterson. She also denied any knowledge of impropriety by the respondent. Ms Terri Watman who had worked for the respondent between January 1988 and January 1990 denied any sexual harassment of her by the respondent. She seems to have been employed prior to Ms Halfacree.

After a consideration of all of the evidence I am satisfied that the complainant has given a truthful account of the respondent's behaviour towards her. I have arrived at that conclusion on the basis of the girl's own persuasive account supported as it is by the diary entries, the evidence of Jodi Cox, Tammy Halfacree and the complaints made independently to Jason Bradshaw both by the complainant and Jodi Cox, and to a lesser extent, the evidence of Mr Bailey.

At the relevant time the complainant was 15 years of age. To make a false complaint of sexual harassment for her own pecuniary advantage involves some measure of sophistication and ingenuity on the part of the maker of the complaint. That is not to say that false complaints will not and have not been made. In this case, however, my assessment of the complainant, now a relatively unsophisticated 17 year old, and the evidence is such as to satisfy me that her complaint was not false. I have already noted the process whereby she became aware of the existence of the Human Rights and Equal Opportunity Commission. However, it is her evidence, and the supporting evidence to which I have referred, which has led me to find that her complaint has been established to the required standard of proof.

It was submitted on behalf of the respondent that the issue of "disadvantage" has not been established. I reject that submission. The complainant has satisfied me that her rejection of the respondent's advances almost invariably provoked an angry response from the respondent in the course of which he discredited her both personally and by reference to her work performance. Her employment on a daily basis became stressful for her and what had commenced as a worthwhile life experience soon turned into one which was characterised by emotional turmoil and stress. The sheer persistence of these unwelcome sexual advances and requests reduced her to the state that, in spite of her urge to maintain employment, she risked unemployment rather than continue in the role of being the recipient of sexually inspired advances which to her were totally unacceptable. Finally, she left the employment and in my view this decision was a reasonable one for her to take.

In my view she was harassed sexually within the meaning of section 28 of the Sex Discrimination Act 1984 and as a result was disadvantaged in connection with her employment.

I am left in no doubt that for the period of approximately three months for which she was employed, the complainant for most of that period was the subject of constant harassment. She was genuinely and deeply upset and her view of her own worth as a person became perverted. As she said "she did not feel good about herself". Her self esteem was severely affected and in one so young the consequences for her could have been disastrous. Fortunately for her they were not and she remains a well adjusted young woman who is now happy in alternative employment.

I assess compensation in the sum of Five Thousand Dollars ($5,000.00).

(1) I find the complaint substantiated.

(2) I declare that the conduct of the respondent was unlawful.

(3) I declare that the respondent pay to the complainant the sum of Five Thousand Dollars ($5,000.00) by way of compensation.

Dated this 18th day of January 1993

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

Hon. W.J. Carter, Q.C.