Hondroulis v Savis [1993] HREOCA 2 (17 February 1993)

Human Rights and Equal Opportunity Commission

Sex Discrimination Act 1984

No. H912/25

Between:

Eve Hondroulis

Complainant

and

Fred Savis

First Respondent

and

Dim Furniture Pty Limited

Second Respondent

Reasons for Decision

of Kevin O'Connor, Inquiry Commissioner

Hearing: Brisbane, Queensland

Dates: 25 and 26 May, 1992

The complainant worked for the second respondent, a furniture making company, between January and March 1990. The first respondent was a manager with the company.

The complainant alleges that the first respondent, during those months, behaved towards her in a way which amounted to sexual harassment in employment within the meaning of the Sex Discrimination Act 1984.

Section 28 of the Act makes it unlawful for a person to harass sexually an employee of that person. "Sexual harassment" is established:

" 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."

The complainant was employed by the second respondent from 16 January 1990 to 23 March 1990. The complainant in essence alleged that the first respondent, her manager, behaved in a sexually suggestive way towards her on a number of occasions. Sometimes the behaviour took the form of brushing against her breast, or on other occasions it involved comments. She alleges that when she failed to respond to these advances, he gave her more difficult work to perform and began to find fault with her work, culminating in her dismissal on 23 March. The first respondent denied that he engaged in any suggestive behaviour. He acknowledged that there may have been some unintended physical contact between him and the complainant in the course of personally handing out pay-packets to her at her work-bench (one of the contexts in which the various touching incidents are said to have occurred). Otherwise his evidence, in essence, was that the complainant did not get on well with other workers in her area; she found her timbersanding work difficult to perform and uncomfortable; and that her dismissal was justified having regard to the poor quality of her work. The first respondent and some co-workers gave evidence to that effect.

The respondents portrayed the complainant as discontented and unable to cope with her work, and contended these factors were the real explanation for her complaint. An aspect of the complainant's personal life was also drawn into the case, i.e. she had not had any children after many years of marriage. The complainant said that her female co-workers referred hurtfully to this matter. Cultural attitudes were relevant in this regard, it seems. The factory was a Greek business which employed a number of workers of Greek origin or background. All of the complainant's co-workers in the sanding area were Greek and related to each other. The complainant was Greek Cypriot. According to the complainant, her childlessness was viewed with curiosity and disfavour by these women. The complainant acknowledged that relations between her and her co-workers deteriorated after the first couple of weeks, but contended that that was attributable to their poor attitude towards her; and what she saw as a dislike of her relatively well-educated background.

In support of her case, apart from her own evidence, the complainant relied on the evidence of her husband, Mr Hondroulis, who worked in another section of the business.

(Mr Hondroulis had worked at the factory prior to his wife being employed; had remained employed subsequent to her dismissal; and was still employed there at the time of the hearing.) Mr Hondroulis was not a witness to any of the events of alleged harassment, the subject of complaint, involving his wife and the first respondent; but he was able to give a detailed account of the history of her expressions of concern over what was happening to her at work and what the first respondent had said to her.

The complainant's allegations listed the following as the main events relevant to the case:

(i) In the course of handing over her pay-packet on 9 and 16 February, the first respondent's arm brushed against her breast. While she had, on the first occasion, thought that it might have been accidental, she formed the view that it was deliberate after the second occasion.

(ii) On 26 February, early in the morning, the first respondent, when passing her, mouthed (in English) the words "I like you" or "I love you" to her. This upset her and after work that afternoon she told her husband of this and the previous incidents and drove with him to a beach where she cried for some time.

(iii) The following day, 27 February, after asking assistance from the first respondent in regard to a problem with a sander, a conversation ensued for about half-an hour in which she alleges he made a number of suggestive remarks, which are referred to in detail later in this decision. During the course of this incident she says that the first respondent again twice brushed his arm against her breast. At lunch-time on that day she saw her husband and told him about this conversation.

(iv) In early March, the first respondent, who was now directly responsible for supervising the work of the sanders (in the absence on recreation leave of the foreman, Graham Cumming) allocated her the difficult work of sanding painted doors. She complained to him over the nature of this work, because it was very dusty and unpleasant. She felt that the mask she was given was not satisfactory. He declined initially though ultimately he took her off this work. She saw this as involving less favourable treatment of her, because she had rejected his advances.

(v) During this time there were conversations after work involving the first respondent, the complainant and the complainant's husband over whether anything could be done to improve her situation. These conversations related both to the difficulties she was having with her work and in getting on well with her co-workers.

(vi) On 23 March, the first respondent dismissed the complainant giving as his reason that they did not like her, and said "you talked to everyone here but not to me", which she interpreted as a reference to her non-response to his sexual advances. Later he repeated similar words to her husband.

She also saw as relevant to her case a telephone conversation with the first respondent after her dismissal. It occupied over an hour, and in it she sought to refute the suggestion (as she had interpreted the first respondent's comments at the time of her dismissal) that

she was displaying affection towards Arthur Karanassios, another worker at the factory. She says that later on that day there was a further telephone call made by the first respondent, initially received by her husband.

The first respondent acknowledged that he was in physical proximity to the complainant when handing out pays on 9 and 16 February, that he did assist her with a sander problem on 27 February, that he did assign a difficult task (sanding painted doors) early in March, that there were conversations in the presence of her husband after work on a number of occasions, that he did dismiss her on 23 March and that he had one long telephone conversation (but could not recall any other conversation) with her after her dismissal.

As to whether he may have brushed his arm against her breast on the two pay-days, he said that did not occur though he had felt she was unusually close to him, and conceded that there may have been accidental contact. He denied any such contact when he assisted her with the problem with the sander (27 February). As to whether he may have mouthed offensive words to the complainant on 26 February he said that all he might have said was "good morning". As to the conversation that occurred the next day when dealing with the sander problem, he said it only went for a few minutes not the 30 or 40 minutes alleged by the complainant. He denied that it contained any lewd or suggestive content, though it may have included words such as "I like the way you work". He said that that: "might be..... how 'I love you' might have come up into it." He said his aim was to give her encouragement in relation to the problems she was having with her co-workers.

He acknowledged the occurrence of the after-work conversations that involved her husband. (There was no suggestion on the complainant's part that these conversations themselves contained suggestive comment.) He denies referring, at the time of her dismissal, to her inability to get on with her work or making any actual or implied reference to her relationship with Arthur Karanassios.

He denies that there was any suggestive comment in the telephone conversation (or conversations) that occurred after her dismissal.

It will be seen that the evidence of the complainant and first respondent is in conflict on the crucial question of whether the first respondent made any sexual advances towards the complainant. In that regard I note that it is not the first respondent's case that sexual advances were made by him, and were welcomed, by the complainant. Nor is it the first respondent's case that the complainant made active sexual advances towards him, his responses to which she misinterpreted.

So the (difficult but not uncommon) task that remains for this tribunal is to decide which of these two versions of the events is the more credible.

I accept the complainant's account and interpretation of the key events to which she refers for the following reasons.

I am satisfied that the complainant was truthful in relation to her allegation that the respondent's arm brushed against her breast when she bent over to sign the pay book on 9

and 16 February. The first incident occurred when workers assembled in a group to receive their pays just before knock-off time on 9 February. I accept that the first respondent was running late in handing out pays on that day. The first respondent acknowledged that it may have been possible that he touched her accidentally while she was bent forward, as he at the same time pointed from the opposite side of the bench where her numbered name was recorded in the pay book.

But that interpretation is, I consider - and as the complainant also considers - made less tenable by the occurrence of a similar incident in quite different circumstances the next week. The first respondent was not late in distributing pays; and on this occasion gave the complainant her pay at her work bench. In this regard it is, I consider, material that she was working alone at that bench.

On this occasion he was positioned basically side-on to the complainant, and the complainant says that, again in the course of her bending forward to sign, his arm brushed against her breast as he pointed to her name and number in the pay book. She says that after that she sought to remain upright when signing the pay-book and only used her initials to sign rather than writing out her full name. (I view with disfavour the inability of the second respondent to produce the pay books for this period. This would have assisted in assessing this aspect of the complainant's evidence. The second respondent has advised that the pay books cannot be found. Accordingly I accept the complainant's evidence in regard to her initialling the book subsequent to 16 February.)

While it is possible that the touching was accidental I consider, on the balance of probabilities, that it was intentional and was in the nature of a sexual advance. In that regard I have given particular weight to the fact that the first respondent, though only 26 years of age at the time of these incidents, had been a supervisor in the factory for several years (since the age of 19) and had, for some time, had women workers under his control. He had, for many years, been responsible for distributing pay. It seems to me that a male manager of his experience ought to have been conscious of the need, in situations of close proximity to women workers, not to have contact with them in ways which might be embarrassing for them. Consequently, I consider that the possibility that any touching was accidental is a remote one.

Moreover, I note that on the occasion of the second alleged incident, on 16 February, the complainant was working at her bench on her own. This was not the normal situation in the sanding area. Normally two women worked opposite each other at the one bench. But by this time relations between the complainant and her three co-workers (Maria Odysseos, Helen Sabba and Angela Nicalo) had deteriorated badly and she had been relocated to a separate bench to work on her own. I accept the complainant's evidence that the pallets near her bench were stacked in such a way that it would have been difficult for the other women to notice any transitory contact that may have occurred between the first respondent and the complainant. While two of the women co-workers and the first respondent denied that they provided any obstruction of view, I note in that regard the indication of the foreman, Mr Graham Cumming, in his evidence that on certain angles the visibility of this bench may have been affected.

As to the alleged mouthing incident involving the words "I like you" or "I love you" on 26 February, I accept the complainant's evidence that this occurred. In that regard I accept the evidence of the complainant's husband that she was upset after work that night and recounted to him, for the first time, the earlier events involving her breast being touched and the suggestive behaviour of that day. While caution needs to be exercised in determining the weight to be given to the evidence of a loyal spouse, such as Mr Hondroulis, especially in a case of this kind, I was favourably impressed by him and regarded him as a witness of truth as to the nature of the complaints made to him by his wife. I also consider that Mr Hondroulis, as a continuing employee of the second respondent, was prepared to give evidence despite the personal difficulties that may give rise to in his employment. (He indicated in evidence that he may have lost overtime opportunities because of preparedness to give evidence.) I am satisfied that the first respondent behaved suggestively on 26 February, in circumstances where he was well aware that the complainant had been effectively ostracised by her co-workers and was emotionally vulnerable.

The conversation of the 27 February is probably the most significant in the chain of events that the complainant alleges constituted unwelcome sexual conduct towards her.

In that regard I will refer, for convenience, to the complainant's affidavit filed in these proceedings dated 15 January 1992. The material paragraphs of the affidavit are paragraphs 23-31, as follows:

23. These long dressing table tops were very heavy for me and I did about ten tops before I told Mr Savis they were too heavy for me to work with. He said to me "Are you sure you can't do them" and I said "I'm sure because they are tooheavy to work with'' and he said to me "How about when I pass I will put some up on the bench for you and when you finish it I will keep on putting them up for you until they are all finished". As I was putting the tops down I noticed they were scratching and I told Mr Savis and he said: "I can't have that". He then said: "I know they were too heavy for you but I wanted to have this talk with you."

24. Mr Savis then proceeded to speak to me. He was there speaking to me for about half an hour, between just before 11:00 a.m. and about 11.40 a.m. I recall that in the course of this time he said the following to me:

"Hey, I know you want me."

"I want you to talk to me the same way you talk over there."

"If you complain I know you feel like I feel."

"Yesterday what I said I'm not going to say it again. I know you didn't like it. I'm going to make it so you will come and say it to me."

I took this to be a reference to his mouthing of the words; "I love you" or "I like you" the day before. "I know why you like Arthur. You think he hasn't got anybody but he has I got somebody but I'm not happy and I want you to make me happy."

"What did you do to him before to make him happy."

"I want you to do the same to me to make me happy too." "I want you to come to me."

"Why do you want to go over to him."

"I want you to come to me and make me happy as you make him."

"Why do you want to work all the time, I know why because you are unhappy and I am like that too and I want you to make me feel like you make him."

"Why I feel like this for you I never feel for anyone else and you don't even know. "

"What I saw you do over there I want you to make me feel the same as you make him feel."

"Why you not the same with me as you are with him. What I see you do over there I like it very much."

"You pretty good at that too."

25. I was offended by these comments by Mr Savis. I felt that there was an obvious sexual overtone, which I found offensive. I felt harassed and was upset by this suggestive and pointed language and comments.

26. While he was saying these things I told him to stop it, and that I'm going back to work. He appeared to be referring to Arthur, and I did not know what he was talking about. I said "What?" and "Look I must go back to work" and he said "Why do you do this to me?"

He then said:

"Make sure you don't tell anybody about this talk or I will make you leave."

27. During this period, Mr Savis also said to me:

"They are talking about you, you are not going to like it and I don't like it either. Everybody here wants to know why you (and he stopped)."

and:

"I'm not going to let it happen to you."

I believe that he was referring here to the other women, that some had wanted me to be put somewhere else, or to leave, but he would not like that to happen.

I found this confusing, as he had also stated that he was going to make me leave, and indeed had earlier told me if I didn't like the women's criticism then I should leave.

28. Mr Savis also said:

"The one belongs to me is going to give me something, but I don't want it from her, she can't have that, that's what you should have."

At the time, I did not understand what he was talking about, but since I have learned that at the time Mr Savis' wife was 2-3 months pregnant and later events lead me to believe that these words were in fact a reference to Mrs Savis having his child.

29. I recall that as Mr Savis made the previous statement, I looked up at him and frowned, I was going to say to him, "How dare you talk like that about your wife", but he gave me no time, he just kept talking.

He then said:

"I know what you are thinking but she's not like you. one day I'm going to show you what I got and then you will know why I'm like this with you."

I was unsure as to what he was referring to, but think he may again have been referring to he and his wife's baby.

30. My husband and I had been unable to have children and I was aware that this was known of and talked about at the factory. I find this reference, which I now believe to be a reference by Mr Savis to our situation, to be very offensive and insulting.

31. During the conversation referred to in previous paragraphs, I asked Mr Savis "Why can't I go and change jobs with that man?". I was referring to one of the other workers who was sanding small coffee table legs and was suggesting that he do the larger tables and I do the lighter work.

Mr Savis told me:

"If I let you change with him I want you to first go somewhere else for me. I want you to go cause I want you to do it."

and:

"I want you to do the same thing as you done to the other man."

I understood this to mean that he wished me to do something sexual for him, if he allowed me to change jobs with the other man. I found this offensive and insulting.

The first respondent denies the occurrence of a conversation of this kind. In effect he alleges that the complainant invented the detail of this conversation as well as her interpretation of it. In accepting the complainant's evidence as to the nature and content of this conversation, I have given weight to two factors in particular. First, it contains reference to a number of matters which were at this stage occurring in the factory; and of which the first respondent, was, l am satisfied, aware. Second, the told her husband (who as l have indicated I regard as a witness of truth) about the conversation when they met for lunch a short time after it ended.

The conversation referred at a number of points, the complainant alleges, to her relationship with Arthur Karanassios. Arthur Karanassios gave evidence that he had frequently been approached by the complainant in regard to problems she had with her sanding equipment. on one occasion at least he had been approached several times in the one day. He recounted, in effect that the complainant was friendly towards him and their conversations ranged over subjects such as his forthcoming marriage, her expressed desire to be a god-parent to one of his children and her interest in keeping dogs as pets. By the end of January, about two weeks after she had started work, she had fallen out with her co-workers. It was after this that she was moved to a separate work-bench and by 27 February the only person in her area of the factory with whom the complainant had a friendly relationship was, it would seem, Arthur Karanassios. I have little doubt that she felt lonely and isolated and that Arthur Karanassios was the one person with whom she could have a friendly conversation during work hours. As the manager of this area of the factory, the first respondent was aware of her isolated situation, that she was continuing to have problems with her sanding equipment and that she sought help from Arthur Karanassios. These factors give context, I consider, to the alleged statements by the first respondent regarding her relationship with Arthur Karanassios. They also give context to the first respondent's alleged allusions to the complainant's unhappiness; while the trouble the complainant was having with her co-workers was the basis of the alleged allusions by the first respondent to the other workers not talking to her.

In that regard I should indicate that I considered to two female co-workers (Maria Odysseos, and her daughter-in-law, Helen Sabba) to be poor witnesses. Both the first respondent and the foreman, Mr Cumming, gave evidence of serious and continued disputes between the other three women and the complainant. on the other hand, Mrs Odysseos and Mrs Sabba either denied or played down the existence of any disputation. Mrs Odysseos was evasive in a number of her replies. I reject their denials and accept the complainant's evidence that she and the other women did canvass with her the reason why, after 15 years of marriage, she had no children; did seek to find out whether it was her husband's problem; and did in her early weeks in the job chide her over her husband's non-attendance at a lunchtime striptease show held by men in another part of the factory. I accept the complainant's evidence that on one Saturday morning Mrs Odysseos swore at her in Greek, uttering a particularly repugnant Greek curse to the effect that she was a liar.

I also accept the complainant's allegation that in the course of the conversation on 27 February the first respondent threatened her job if she told anyone else of this conversation.

Much evidence was given as to whether the complainant did her sanding work satisfactorily. The respondents' case was, in essence, that the complainant's dismissal

was due to work factors alone, those being a combination of her poor work and her inability to work in a team.

I am not satisfied that her work was so poor as to justify her dismissal. In that regard, I give particular weight to the evidence of Mr Cumming, the foreman. He was responsible for directly supervising the work of the sanders and reported to the first respondent. He was on recreation leave in Perth in the later part of the period of the 10 weeks that the complainant worked at the factory, and was away at the time of her dismissal. While it is clear that there was disharmony among the women, he testified that the work the complainant did was of reasonable standard though he did consider her a bit slower than the others. In light of Mr Cumming's assessment, I consider that the first respondent had no justifiable basis for dismissing her on work-standard grounds.

On the other hand, it appeared to me that the complainant would have been a difficult person to work with. She did, I consider, regard herself as better educated than her coworkers; she did stubbornly hold to the view that her sanding methods were better than those of her more experienced co-workers; and she was resistant to the suggestions of her foreman (Mr Cumming) in that regard. Further, her sense of morality and privacy was offended by the kind of conversations her co-workers engaged her in - such as those concerning her childlessness and the striptease show.

At the request of Mr Cumming, the first respondent sought to cope with these difficulties by first talking separately to the women in Greek, and later by re-locating the complainant to a lone bench.

I have formed no concluded view on whether the work that the first respondent assigned to her after Mr Cumming went on leave, involving handling the heavier "New York" table-tops and later being required to sand back painted doors, formed part of a strategy to make her work more difficult with a view to forcing her out.

I am inclined to the view that her dismissal was due to a combination of a reasonable management concern on the first respondent's part over the poor relations between the complainant and her co-workers, and the irrelevant and unlawful consideration of his frustration over her attitude to his advances. The second factor played a significant part in the complainant's dismissal.

I accept the complainant's evidence as to what the first respondent said to her at the time of her dismissal. She described her dismissal as follows:

On Friday Mr Savis dismissed me. As he was giving me my pay he leaned on my right shoulder and was pushing me real hard and said, "This is your last pay. We don't like you here, we want you to go". I said "What?" and he said:

" You talked to everyone here but not to me and your whole attitude towards me I don't like".

I regard the first respondent's comments as an allusion to her failure to respond positively to his advances.

In light of these conclusions, and having regard to the jurisdiction in those matters being confined to sexual harassment during the employment relationship, I do not consider it necessary to examine in detail the evidence relating to the telephone conversation(s) that occurred after her dismissal. Both the complainant and the first respondent acknowledge that there was one very long conversation; there is dispute as to whether there was a further conversation. The first respondent gave evidence to the effect that the complainant did most of the talking, and I would expect that was so given the natural emotion she would have felt over her dismissal. Moreover, there was no specific allegations made by the complainant that the first respondent had engaged in any unlawful conduct during these conversations.

I am satisfied that the first respondent engaged in sexual harassment ~ towards the complainant, within the meaning of section 28 of the Sex Discrimination Act. Accordingly, under s.81(1)(b) of the Act, I find the complaint substantiated. In accordance with section 106(1) of the Act, I find that the second respondent having not discharged its responsibilities under s.106(2) of the Act, is liable vicariously for the conduct of the first respondent.

The complainant was deeply affected emotionally by the conduct of the first respondent towards her. Her husband gave evidence of her disturbance, including nightmares, that his wife had had over these incidents (both while she was still working with the second respondent and since); as well as her psychiatrist, Dr John Mulholland. I endorse Dr Mulholland's view that these approaches would have been particularly disturbing to her as she was a person with strict views about the sanctity of marriage and fidelity in marriage.

I declare that the respondents pay to the complainant monetary compensation in the

amount of $4000.

Dated this 17th day of February 1993

...........

Kevin O'Connor