Mills v Bennett & Heirloom [1994] HREOCA 19 (25 July 1994)

Human Rights and Equal Opportunity Commission

Sex Discrimination Act 1984

No. H94/3

Between:

DEBRA MILLS

Complainant

and

BARRY BENNETT

First Respondent

and

HEIRLOOM TRADITIONAL BEDDING CO. PTY. LTD.

Second Respondent

Reasons for Decision

of

T.A. Worthington Q.C.

Inquiry Commissioner

Hearing: Melbourne

Date: 21, 22 & 23 March 1994

April 1994 - written submissions

Counsel: Ms. C Zapparoni instructed by Holding Redlich for the Complainant

Mrs. F Hampel instructed by Phillips Fox for the Respondents

1. THE COMPLAINT

This is an inquiry under the Sex Discrimination Act 1984 (Cth) ("the Act") into a complaint of unlawful conduct under the Act. The complainant Debra Mills and the first respondent, Barry Bennett were at all material times employed by the second respondent Heirloom Traditional Bedding Co. Pty. Ltd. ("Heirloom"). The complainant alleges that Mr. Bennett acted unlawfully in that his conduct amounted to sexual harassment contrary to Section 28(1) of the Act and/or that it constituted discrimination contrary to Section 14(2) of the Act. It is alleged that the second respondent is vicariously liable for Mr. Bennett's unlawful conduct pursuant to Section 106. The relevant provisions of the Act include the following:

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) ....

(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 possible work;or

(b) as a result of the other person's rejection of the advance, refusal of the request of 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 sub-section (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 that statement is made orally or in writing.

14. (2) It is unlawful for an employer to discriminate against an employee on the ground of the employee's sex, marital status or pregnancy -

(a) in the terms or conditions of employment that the employer affords the employee.

(b).............

(c)..............or

(d) by subjecting the employee to any other detriment.

l06.(I) Subject to sub-section (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 I 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) Sub-section (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.

The complainant, a process worker, worked with Mr. Bennett at the Brass Bed Company from 1983 until 1988. In 1988 Mr. Bennett left the Brass Bed Company and with two co-directors, Mr. Michael Bates and Mr. John McSweeney, started the business of Heirloom at Heidelberg West in August 1988. The complainant sought work with Heirloom and started there in December 1988. Over time the partnership between these three directors dissolved with Mr. Bates leaving in April 1989 and Mr. McSweeney leaving in September 1989. Between December 1988 and September 1989 there were employees other than the complainant who worked there from time to time but the last of them (Ms. Maureen Tong) left in September 1989. The complainant left her employment with

Heirloom in May 1991 and except for the last couple of months, the only people working at the factory after September 1989 were the complainant and Mr. Bennett.

In October 1990 the complainant injured her neck in the course of her employment. I shall refer to its consequences only briefly and will return to it in due course. That injury became worse over time extending into her back and the effects became so severe that it was necessary for her to cease working in May 1991.

The complaint in this matter dated 10 December 1992 was lodged on 17 December 1992. The substance of the allegations of unlawful conduct in that complaint can be summarised as follows. Shortly after she began working at Heirloom Mr. Bennett approached her from behind and threw his arms around her waist. She was angry with him and pushed him away, telling him not to touch her. This happened in the presence of Mr. Bates. In December 1990 on the last working day before Christmas, the complainant and Mr. Bennett had lunch together and when they returned to the office to collect her holiday pay, he grabbed her and kissed her. She states that she pushed him away, yelled "Happy Christmas" took her cheque and left. She returned to work in late January 1991. There were no problems for the first few weeks but she complains that between February - May 1991 harassment occurred in a number of ways. There was a portable phone at her work bench.

When there was a telephone call for Barry, he would come to the bench to pick up the phone, and while he was talking he would put his arm around my shoulder, and then move it down my waist. He would rub himself against me when he was talking on the phone, and would nuzzle me around my ear. I would try to move away, but often I still needed to work at my work bench where the phone was. this happened almost every day.

On other occasions he would kiss her at the factory.

The factory that we worked in was very narrow. Often when I was walking one way, and Barry was walking the other he would grab me as he passed me and kiss me on the mouth. this happened about one or two times a week. I would try to push him away, but he was much stronger than me.

The complainant and Mr. Bennett would have lunch together in a small room.

By late March or early April I began to feel that Barry was getting obsessed with me. While we were having lunch he would sit there looking between my legs. This made me feel dirty and revolting and often I felt so nauseous that I would have to go and vomit. This happened a few times a week for a couple of weeks until 1 suggested having lunch in the larger office at the front of the factory.

In her complaint she says that she would tell Mr. Bennett to stop touching her and he would says things like "Why should I?" and "What for? You like it!"

2. EVIDENCE

Some of the evidence given by the complainant involved allegations against Mr. Bennett during the course of their joint employment at the Brass Bed Company. This included reference to Mr. Bennett putting his arm around her shoulder and patting her on the bottom. It was not suggested that this conduct formed part of the complaint but rather that it was part of the background of the history of their relationship. In addition, despite the terms of the written complaint, evidence was given of some conduct at Heirloom similar to the type complained of as well as conversations of a suggestively sexual nature during 1988, 1989 and 1990. The complainant called evidence about some of these matters from her sister Mrs. Jennifer Cornelius and her nephew Mr. Mark Cornelius both of whom had done some casual work at Heirloom in 1989. A written complaint does not need to contain every detail of the conduct sought to be impugned. However, it must be sufficiently specific to put a respondent on proper notice about the nature and extent of the allegations that are being made and there is then nothing to prevent a complainant giving the more specific details of those allegations during the course of the hearing. But it is not permissible for a complainant in the course of the hearing to widen the ambit of the complaint that has been referred to the Human Rights and Equal Opportunity Commission ("the Commission") for an injury. In this matter the complaint was lodged with the Victorian Commissioner for Equal Opportunity on 17 December 1992. During the early part of 1993 there were discussions between the parties under the supervision of the Victorian Commissioner and an unsuccessful attempt at conciliation. At the request of the complainant the matter was referred to the Commission in June 1993. Further attempts at conciliation were unsuccessful and on 20 December 1993, the Sex Discrimination Commissioner referred the matter for an

inquiry by the Commission pursuant to Section 57(1)(b) of the Act. The clear and unmistakable ambit of the complaint that was the subject of that conciliation procedure and referral is conduct only during the period February-May 1991 with the exception of the incidents alleged to have occurred in December 1988 and December 1990. They are the allegations that the respondents were asked to answer. In those circumstances, the evidence of events generally during 1988, 1989 and 1990 can be received only as background and to enable me to better understand the evidence about the periods covered by the complaint.

I do not propose to embark on a detailed discussion of all the evidence. In relation to conduct complained of, there is common ground between the complainant and Mr. Bennett about some of that conduct but there is dispute about the extent and nature of it. For the complainant, apart from medical witnesses, evidence was given by her husband Mr. Geoffrey Mills, her sister Mrs. Jennifer Cornelius and her nephew Mark (the son of Mrs. Cornelius). On behalf of Mr. Bennett, in addition to himself, evidence was given by Mr. McSweeney (a previous principal at Heirloom), Mr. Perc Doherty (who worked for Heirloom from March 1991 until June 1991), and Mr. Bennett's brother (Mr. William Bennett) who looked after the business at Heirloom for short periods during 1989 and 1990 when Mr. Barry Bennett was away and who would visit the factory from time to time to see his brother while the complainant was employed there.

Given the time that has elapsed, it is understandable that all witnesses had some difficulty with dates in relation to the alleged conduct. However, it is clear that the evidence of the family members called by the complainant was not simply an independent recollection but the product partly of their own recollections and partly of discussion with the complainant. I am not suggesting that there is anything wrong with that in itself but their evidence is partly flawed because the evidence of the complainant herself cannot be accepted totally at face value. It became apparent on a number of occasions in the course of her evidence and cross-examination that there were inconsistencies and some exaggeration in her description of Mr. Bennett's conduct and the effect that this conduct had on her. I am conscious that this exaggeration and inaccuracy could well be partly explained in her case by her feeling "really angry and bitter" about what had happened and in the case of her family, by the natural feeling of sympathy and a desire to assist her. However, if I am to do justice between the parties I can only base findings on evidence in which I have sufficient

confidence to regard as being reliable. It does not follow of course that this means that the complainant's evidence is not worthy of any credit or that none of the things complained of have occurred. I have carefully considered the evidence given by all the witnesses including the extent to which admissions were made by Mr. Bennett and as a result I am satisfied that the following has been established.

3. FINDINGS

3.1 DECEMBER 1988

There is no substantial dispute between the complainant and Mr. Bennett about what happened in December 1988. The complainant said that she had been doing some piece-work at the Heirloom factory and was talking to Mr. Bates in the front office when Mr. Bennett came from behind her, put his arms around her waist and squeezed her. She yelled at him "Piss off and leave me alone" and either pushed him away or wriggled around and he let her go. Mr. Bennett basically agreed with that description although it was his recollection that he let her go as soon as she yelled at him. He is not sure whether he squeezed her but he admits that he could have. It is common ground that at that time this was an isolated incident. It was certainly unwelcome. Mr. Bates was not called as a witness but I accept the complainant's evidence that he offered to speak to Mr. Bennett about his conduct but she told him that would not be necessary as she thought that Mr. Bennett " had got the message that I did not want him to touch me" and further as she said in her complaint " in fact Barry did not touch me again until December 1990". Although in her oral evidence the complainant sought to qualify that statement to mean that Mr. Bennett did not touch her in a "dirty way", that does not affect the position namely, he did not repeat that behaviour again. I shall return to this matter in due course.

3.2 CHRISTMAS 1990

This concerns the kiss after lunch on the last working day before Christmas 1990. The complainant said that it was customary for the respondent to give her a kiss at Christmas time and indeed, she does not complain of the fact of his kissing her but rather the way he kissed her. She said that this involved holding her by the shoulders and kissing her on the month. Objectively, this kiss appears to have been similar to those of each previous Christmas which the complainant found perfectly acceptable and it involved no more than

that it could not amount to evidence of unwelcome conduct. However, this incident should be seen in light of the events which followed on her return to work at the end of January 1991

3.3 FEBRUARY 1991 - MAY 1991

Having observed the parties and after hearing and considering the whole of the evidence, I am satisfied that the complainant has made good most of her allegations about the conduct of Mr. Bennett. I find that on occasions while using the portable phone at her work bench, he would place his arm around her shoulders or around her waist so that his hand was just below her breast and that on some occasions he would nuzzle her ear. I am satisfied that there were occasions when he would press his body up against her while he was talking on the telephone and holding her with his arm. From time to time, whether talking on the telephone or otherwise, he would pat the complainant on her bottom. From time to time in the walkway of the factory and elsewhere he would kiss her on the lips. With regard to the allegation about him staring between her legs in the lunchroom, I am not satisfied on the balance of probabilities that this was an accurate perception by her. The room they were using at that time was very small and was an internal room with no view. It may well be that because of his other conduct, the complainant thought this might be the case but the evidence about it is not clear and I am not satisfied that it actually occurred.

Although it is denied by Mr. Bennett, I accept that from time to time the complainant would indicate either by gestures or words that his conduct was unwelcome. For the complainant to establish that she rejected or took objection to the conduct, it is not necessary for her to show that she did so on each and every occasion. That would be unreasonable. I find that she made it clear that his conduct was unwelcome in early 1991 and that attitude did not alter.

3.4 UNLAWFUL CONDUCT- SEC. 28

I am satisfied that this conduct during February - May 1991 was conduct of the sexual nature. I do not accept Mr. Bennett's explanation even in relation to the conduct that he admitted namely, putting his arm around her shoulders and waist, occasionally kissing her and patting her on the bottom, that this was simply camaraderie.

For the purposes of Section 28(3)(b) it is necessary for the complainant to show that she was disadvantaged in some way in connection with her employment. The authorities make it clear that if the conduct creates a sexually permeated work environment or makes the working environment offensive or intimidating, that is sufficient to constitute the requisite disadvantage (R. v. Equal Opportunity Board Ex p. Burns (1985) V.R. 317; Hall v. Sheiban (1988-89) 85 A.L.R. 50). I am satisfied that her workplace was offensive in that way.

I should mention briefly the submission on behalf of the respondent that these complaints should not be further dealt with because a period of more than 12 months had elapsed between the alleged unlawful actions and the making of the complaint. Both the Sex Discrimination Commissioner and the President of the Commission have certain discretionary powers in relation to whether an inquiry should be commenced or continued in such circumstances but those powers do not extend to the Commission when it undertakes an inquiry such as this one pursuant to Section 59(1) of the Act.

The complainant has therefore substantiated her complaint against Mr. Bennett under Section 28 in respect of the findings of unlawful conduct that I have made between February - May 1991. With regard to the conduct immediately before Christmas 1990, I have reached the conclusion that this evidence is finely balanced. On that basis, the requisite onus has not been discharged and it cannot lead to an adverse finding against Mr. Bennett (Briginshaw v. Briginshaw [1938] HCA 34; (1938) 60 C.L.R. 336). With regard to the conduct in December 1988, it is my opinion that this was an isolated incident that caused momentary annoyance to the complainant. Although a single action can constitute sexual harassment, a single act involving only that consequence is not sufficient in this matter to constitute a disadvantage for the purpose of Section 28.

I turn now to consider the position of the second respondent, Heirloom. Mr. Bennett and his wife are the only directors and shareholders of that company. Mr. Bennett is registered as the principal executive officer and secretary of the company. During the period February - May 1991 that company was for all practical purposes the alter ego of Mr. Bennett.

There is no evidence to suggest that Heirloom as the employer of Mr. Bennett took any steps to prevent his unlawful acts. The provisions of Section 106 of the Act are therefore satisfied and I find that Heirloom is vicariously liable for the acts of sexual harassment by Mr. Bennett during the period February - May 1991. I find that the liability of Mr. Bennett and Heirloom is joint and several.

3.5 UNLAWFUL CONDUCT - SEC. 14

In view of these findings, the next matter to consider is whether the complainant was subjected to discrimination on the ground of sex under Section 14(2). In this matter the question to be asked is whether she was treated less favourably than males would have been treated in the same or similar circumstances (Section 5) in the terms or conditions of her employment or in being subjected to any other detriment.

It is well established that conditions of employment include the psychological and emotional work environment. In this matter, the conduct of Mr. Bennett produced a hostile work environment such that these conditions of employment were adversely affected. I have already found that the complainant suffered detriment. Given the nature of the conduct, I have no doubt that she was subjected to it because she is female and I therefore find that her complaint against Mr. Bennett under Section 14 is substantiated with respect to the conduct between February-May 1991 (Bennett v. Everitt (1988) EOC 92-244).

For the reasons given in 3.4 above, I find that Heirloom is vicariously liable for that conduct and the liability of Mr. Bennett and Heirloom is joint and several.

4. DAMAGES

In this area of the inquiry, the evidence was most unsatisfactory. As mentioned earlier, the complainant had injured herself in the course of her employment in October 1990. This injury had disastrous consequences for her. Its sequelae forced her to cease work altogether in May 1991. Although the complainant acknowledged that pain from this work injury caused her to stop work in May 1991, the thrust of her evidence was that her serious psychiatric problems (e.g. depression, anxiety attacks, anhedonia etc.) culminating in admission to a psychiatric hospital in July 1992, were the result of Mr. Bennett's conduct,

as was her continuing inability to work and to relate satisfactorily to other people. It was not until she had finished her evidence-in-chief when I drew to her attention that there was evidence in the report of a psychiatrist Dr. Paul Brown which indicated the severity of her work-injury symptoms, that this matter was addressed by her. Even then she only grudgingly acknowledged that it was of any significance. Mr. Mills and Mrs. Cornelius also played down the neck and back pain and put the emphasis of her complaints to them squarely on Mr. Bennett' s behaviour. As will be seen shortly, this indicates lack of candour. Moreover it does not sit with the contents of the complaint itself where the complainant in referring to the period after 1991 said:

Being harassed like this by Barry affected me really badly. At the time, I was at the point of a physical and mental breakdown in any case because of the pain caused by my back injury and the stress I was under at work. (emphasis mine)

Dr. Brown provided three reports, the first two being dated 10 August 1992 and 31 August 1992. I shall refer again to Dr Brown's evidence but for present purposes those reports confirm that at his first consultation with the complainant on 16 January 1992, she told him there had been some unwelcome conduct by Mr. Bennett in the last few months of her employment. Dr. Brown reported that counselling for that had been part of her psychiatric management. However, his evidence of the history she gave him on 16 January 1992 was as follows.

Dr. Brown stated that the complainant told him that she had known Mr Bennett at her previous employment and respected him, that she felt concern for him operating a small business in times of economic constraint and that she loyally went out of her way to support him. However she felt no support in return, giving examples of not receiving a CPI pay rise, her injuries not being recognised and a feeling of being criticised by Mr. & Mrs. Bennett. As I have said, she mentioned some harassment. The complainant also described severe unremitting pain with spasms in her neck radiating into her head and in her low back radiating to her buttocks and legs. She told him the neck and head pain was particularly severe and associated with faintness if she turned her head or moved abruptly. She had been investigated in 1991 by a specialist, Dr. Mackey who unsuccessfully tried nerve blocks and morphine implants. Similarly the use of analgesics, physiotherapy and psychological methods of pain management had proved ineffective. Her unremitting symptoms of pain

had led to depression with suicidal thoughts, insomnia, anorexia and depersonalisation. As a result of this her marital relationship was put under great strain and she became anhedonic. Dr. Mackey had prescribed an anti-depressant and had ordered her to cease work on 8 May 1991. She told Dr. Brown that she stayed at home unable even to perform her domestic duties. She said she felt bad about letting her employer down and stigmatised by seeking workers compensation benefits. She said she felt very hurt and unsupported, never having been sick before.

This history she gave to Dr. Brown is grossly at odds with the impression she tried to create in the course of this inquiry.

In support of her allegation that she was badly affected by the harassment, she called expert evidence from Dr. Brown and from Ms. Margaret Lord, a psychologist.

Dr. Brown prepared a further report dated 7 March 1994 which the complainant put into evidence. In his earlier report of 31 August 1992, Dr. Brown clearly attributed the complainant's serious psychiatric condition to the unremitting pain, the prospect of long term unemployment and the anxiety and depression related to those problems. In his report of 7 March 1994 and in his evidence at the inquiry, Dr. Brown put a significant emphasis on harassment as a cause of her condition, so much so he said, that he could not distinguish between the effects of her work injury and the effects of the harassment. When confronted with this by Mrs. Hampel in cross-examination, Dr. Brown agreed that as at 31 August 1992 he had attributed her symptoms directly to the work injury based on the history the complainant gave him and his own assessment of that history and of her. His explanation for the difference in his opinions was that when he prepared the report of August 1992 it was for the purposes of a Workcare claim in relation to her work injury, whereas he was now concerned with her claim of harassment before this Commission. These opinions about the cause of her problems cannot be reconciled. They demonstrate lack of professional independence and impartiality and are therefore of no probative value.

Ms. Lord expressed the opinion that the complainant was suffering from a post traumatic stress disorder as a result of Mr. Bennett's conduct. She prepared a report on 17 March

1994 and gave evidence at the hearing. There are a number of unsatisfactory features about her evidence which have led me to conclude that I cannot put any weight on the opinions she expressed. She did not take a history from the complainant but gave her a check list of symptoms asking her to indicate any that she had. The complainant ticked 52, many of which were otherwise not mentioned in evidence. The only account of the harassment allegations that she took into account was the written complaint of 10 December 1992. Ms. Lord did not in any way discuss with the complainant the conduct of Mr. Bennett, the complainant's perception of it or how the complainant felt she had been affected. Although Ms. Lord was aware the plaintiff had suffered a serious work injury, she did not take any history in relation to it because she did not consider it could be a potential cause of psychological disability. In forming an opinion that the complainant suffered from a post traumatic stress disorder, Ms. Lord mentioned a number of symptoms about which the complainant makes no complaint whatsoever. Such matters include daily intrusive and distressing memories when exposed to events that resembled or symbolised Mr. Bennett's conduct, avoiding situations that renewed recollections of his conduct (e.g. would hate to enter another factory), memory impairment and forgetfulness, exaggerated startle response, etc.

The complainant is entitled to compensation for any economic and non-economic loss attributable to the unlawful conduct. With regard to economic loss, I cannot be satisfied on the evidence that Mr. Bennett's conduct has played any material part over and above her work injury in causing her to leave work or in her failure to obtain work since then. Taking the evidence as a whole the probabilities are that it has not.

With regard to non-economic loss, I am satisfied that Mr. Bennett's conduct had an effect on her butnowhere near the degree she has alleged. I have no doubt that conduct of this type could cause serious emotional disabilities and psychological illness to a victim but I am not satisfied that it has done so in this case to the extent alleged. In order to properly assess the degree of a non-organic injury, it is important for a tribunal to form an opinion about the frankness and reliability of the person claiming, since there is often no independent means of checking the veracity of the allegations. In that regard as I have said, the complainant was lacking. In addition, there is the other evidence that attributes her serious

psychological condition to another cause. In the final analysis I find that the harassment in February - May 1991 caused the complainant injury to her feelings, grief and humiliation and that it played some part in the psychological condition caused by her chronic pain. However, I am not satisfied that it formed a major part of that condition or that it, as distinct from her other problems, has caused a continuing need for treatment. She continued with psychiatric treatment during 1993 but it appears that this was mainly because of continuing headache and back pain. Understandably the harassment came back into focus in 1994 because of the impending hearing in this matter. In all the circumstances, I assess compensation by way of damages for these detriments in the sum of $5,000.

5. CONCLUSION

For these reasons I find that the complaint is substantiated and declare that the complainant is entitled to the sum of $5,000 for which sum the first and second respondents are jointly and severally liable.

DATED 25 July, 1994

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

T.A. WORTHINGTON Q.C.

INQUIRY COMMISSIONER

ADELAIDE