Joy Xiao Yan Ling v Andrew Kirlappos & A&c Fashions Pty Ltd [1994] HREOCA 29 (25 October 1994)

Human Rights and Equal Opportunity Commission

Sex Discrimination Act 1984

No. H94/29

Between:

JOY XIAO YAN LIN

Complainant

and

ANDREW KIRLAPPOS

First Respondent

and

A & C FASHIONS PTY LIMITED

Second Respondent

Reasons for Decision

of

P.M. Wolfe

Inquiry Commissioner

Hearing: Sydney

Date: 25 October 1994

12 December 1994

Appearances: Ms Chris Loukas for the Complainant

Mr Stephen Stanton for the Respondent

Introduction

This is an inquiry which the Sex Discrimination Commissioner by her reference dated 14 April 1994, has referred for public inquiry pursuant to s. 57(1) of the Sex Discrimination Act 1984 (C'wealth). It relates to the complaint of Joy Xiao Yan Lin, which was lodged with the Anti-Discrimination Board of NSW on 26 February 1992, and forwarded to this Commission on 4 March 1992.

The complaint

The complainant alleges that the first respondent, Andrew Kirlappos, who is a director of the second respondent, A. & C. Fashions Pty Ltd, subjected her to sexual harassment during her employment as a seamstress at the second respondent's factory in February and March 1992 and that her employment by the second respondent was unlawfully terminated for those reasons.

The first respondent denied that there had been any complaints of any nature against him until Ms Lin complained, and categorically denied any allegation by Ms Lin that suggested or implied any sexual request or contact with her.

The complaint concerns the following sections of the Sex Discrimination Act 1984:

s. 5(1) For the purpose of this Act, a person (in this subsection referred to as the 'discriminator') discriminates against another person (in this subsection referred to as the 'aggrieved person') on the ground of the sex of the aggrieved person if, by reason of :

(a) the sex of the aggrieved person;

(b) a characteristic that appertains generally to persons of the sex of the aggrieved person; or

(c) a characteristic that is generally imputed to persons of the sex of the aggrieved person;

the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of the opposite sex.

and

s.8 A reference in sub-ss. 5 (1), 6 (1) or 7 (1) to the doing of an act by reason of a particular matter includes a reference to the doing of such an act by reason of 2 or more matters that include the particular matter, whether or not the particular matter is the dominant or substantial reason for the doing of the act.

s.14(1) It is unlawful for an employer to discriminate against a person on the ground of the person's sex, marital status or pregnancy :

(a) in the arrangements made for the purpose of determining who should be offered employment;

(b) in determining who should be offered employment; or

(c) in the terms or conditions on which employment is offered.

and

s.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) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with the employment;

(c) by dismissing the employee; or

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

and

s.28(1) It is unlawful for a person to harass sexually :

(a) an employee of that person;

(b) an employee of a person by whom the first-mentioned person is employed; or

(c) a person who is seeking employment by the first-mentioned person or by an employer of the first-mentioned person.

and

s.28(3) A person shall, for the purposes of this section, be taken to harass sexually another person if the first-mentioned person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the other person, or engages in other unwelcome conduct of a sexual nature in relation to the other person, and :

(a) the other person has reasonable grounds for believing that a rejection of the advance, a refusal of the request or the taking of objection to the conduct would disadvantage the other person in any way in connection with the other person's employment or work or possible 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.

and

s.106(1) Subject to subsection (1), where an employee or agent of a person does, in connection with employment of the employee or with the duties of the agent as an agent:

(a) an act that would, if it were done by the person, be unlawful under Division 1 or 2 of Part II (whether or not the act done by the employee or agent is unlawful under Division 1 or 2 of Part II); or

(b) an act that is unlawful under Division 3 of Part II;

this Act applies in relation to that person as if that person had done that act.

(2) Subsection (1) does not apply in relation to an act of a kind referred to in paragraph (1) (a) or (b) done by an employee or agent of a person 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 Evidence

Other than an expert witness, all witnesses who gave oral evidence did so through interpreters. In her written complaint of 26 February 1992 and in her oral evidence the complainant described a number of incidents at the second respondent's factory and at the complainant's flat which her counsel submitted was evidence of sexual harassment and sex discrimination.

Ms Lin came to Australia in late November 1991 from China where she had been employed as a film cartoonist. She was accompanied by her young daughter. When they arrived in Sydney, Ms Lin had no savings apart from about $200 pocket money, and spoke almost no English. They were met by her husband who had been in Australia for about four years. She then learned that her husband had formed an association with another woman. Her husband moved to his girlfriend's place on the day of their arrival, not telling her where it was but leaving his flat at Marrickville for Ms Lin and their daughter. Although her husband paid the rent for a period, she immediately faced great financial difficulties and needed a job to support herself and her daughter.

The first respondent was born in Cyprus and came to Australia in January 1956. The second respondent is a company owned and operated by the first respondent and his wife, who is also a director of the second respondent. He is an experienced tailor. Through the second respondent the first respondent and his wife have operated a clothing factory at Marrickville for some years where pre-cut materials or material cut to specification are assembled into finished garments. Mr Kirlappos was referred to and regarded by the factory workers as 'the boss'.

Ms Lin testified that she had grown up in a very traditional Chinese family and had difficulty with the English language. She appeared to be well educated. Although she had made her own clothes she had no experience of industrial sewing before coming to Australia. Soon after her arrival Ms Lin found employment at a small fashion factory near Central Station (which was referred to in evidence as the Surry Hills factory) where she was paid on a piecework rate. While working there she met her future husband, Andrew Cheung, who was then employed nearby as a chef by the Salvation Army. Mr Cheung began living with Ms Lin at the Marrickville flat at the end of January 1992. Ms Lin worked at the Surry Hills factory for about two months, but was looking for work closer to Marrickville to make it easier to look after her daughter.

Employment with the Respondents

In February 1992 an acquaintance of her former husband, who had previously been employed at second respondent's Marrickville factory, took Ms Lin there and told Mr Kirlappos that Ms. Lin needed work. Ms Lin understood that the former employee had told the boss she was desperate for work and that Ms Lin and her husband had separated. Ms Lin alleged she had seen the first respondent pinch the former employee's bottom, but thought that was not her business. Ms Lin said she understood she would be paid $230 per week. The award wage for an adult machinist was then about $297 per week nett.

The first respondent said that as there was not sufficient work for her, he told the former employee to leave Ms. Lin's telephone number and Ms Lin would be rung when she was required, and that he would pay a wage of $250 gross per week as Ms Lin was inexperienced. This would have been about $216 nett. The respondents tendered no evidence of any award rate for the position which the respondents alleged she had occupied. There was other evidence suggesting that a seamstress was entitled to the machinist award rate.

About a week or 10 days after applying, Ms Lin began work at the factory. The group certificate issued by the second respondent relating to Ms Lin's employment stated that she was employed there during the period from 10 February 1992 (which was a Monday) to 11 March 1992. Both Ms Lin and, the first respondent, Mr Kirlappos gave evidence that she had commenced work on a Thursday. I accept that she began work at the Marrickville factory on Thursday, 13 February 1992. It is convenient to mention here other dates which were the subject of evidence. The group certificate issued for Ms Lin's work at the Surry Hills factory stated that she had been employed there during the period 9 December 1991 to 27 February 1992. Ms Lin denied working at the Surry Hills factory while she worked at the Marrickville factory. Ms Lin then worked at the Marrickville factory on Friday 14 February and from Monday 17 February to Friday 21 February 1992. Mr Kirlappos visited Ms Lin at her flat on Saturday 22 February 1992, but Ms Lin did not work at the factory during at least the week or 10 days following that visit. A New South Wales Police report which forms part of the Referral Report (exhibit 1) and upon which counsel for the respondents relied in making some of his submissions, indicated that Mr Cheung had complained about Mr Kirlappos' visit to the flat to the police at Marrickville on Tuesday 25 February 1992. On 26 February 1992 Ms Lin's complaint, which initiated this inquiry, was lodged with the Anti-Discrimination Board. The police report also suggests that on 27 February 1992 Ms Lin, with Mr Cheung interpreting, had given a statement to the police, that a police officer telephoned Mr Cheung on Monday 2 March, and that on the afternoon of Monday 2 March 1992 police officers had spoken to Mr Kirlappos at the Marrickville factory. The report also suggests a police officer contacted Mr Cheung by telephone to inform him of the result of their discussions with Mr Kirlappos. Ms Lin then returned to work at the Marrickville factory. Mr Kirlappos' evidence suggested she returned about 3 or 4 March as he thought she had then worked for between 7 to 10 days until he "let her go" on a Wednesday at about 11:30am in the morning. That may have been 11 March 1992, having regard to the group certificate which Mr Kirlappos signed. The complainant's evidence was that she had returned to work on 9 March 1992 and had been dismissed on 20 March 1992.

First period of employment at the Marrickville factory

Ms Lin, having had little experience with industrial sewing, was at first put to work cutting threads at the Marrickville factory.

The factory hours were from 8 am to 4:45 pm, except on Fridays when the workers left at 1 pm. The first respondent seems to have been at the factory during these hours, but his wife according to Ms Lin, was not at the factory all the time and frequently left at 3:30 pm. In his first written response to the complaint, the first respondent asserted that he had arrived at his factory with his wife and went home with her every day. The factory's pay week finished each Wednesday, and the workers were paid on Fridays for the past week's work. As Ms Lin had only worked one and a half days on her first Friday there, 15 February, Mr Kirlappos said he asked another person if Ms Lin needed any money and that he gave her an advance of one and a half day's pay, an amount of $80. Ms Lin agreed that she had been asked if she needed money, but she said she had said 'no', and denied he had paid her $80 that day. As she pointed out, on her first pay day (the following Friday) she was paid $216 and neither she nor Mr Kirlappos suggested she would be paid $296 for a full week's work. Ms Lin said that weekend the first respondent had contacted her through another employee, asking her to go to the factory to do cleaning work for him, that he would pay her but she refused to do so.

She alleged that in her first week there she noticed the first respondent touched women workers on the face and pinched them on their bottoms. She said he often drank at the factory. He denied that. She said that about two days after she started work there, the first respondent taught her how to sew buttonholes using a particular machine for that purpose. The buttonhole machine was located in the back corner of the factory, and the complainant stood by the machine while the first respondent sat before it to indicate how to use it. As he was demonstrating the machine, the complainant said, he reached out with his hand and touched her skirt in the area covering her vagina. She said she screamed and the first respondent gestured to her not to scream, with one finger covering his lips and said "Don't scream. My wife is here".

Mr Kirlappos denied touching any employees on the face or bottom and denied touching her when he was demonstrating the buttonhole machine. He did not suggest or infer, in his oral evidence, that he may have touched her by mistake or inadvertently. He denied that he had indicated to her not to scream as his wife was nearby. Photographs of the factory floor, tendered on his behalf, indicate an open plan factory floor.

Friday, 21 February 1992

Ms Lin said that on her first pay day she was asked to go to the boss' office for her pay and that as soon as she walked in the door the first respondent grabbed hold of her and tried to kiss her but she pushed him away. She said she checked her pay and that she was paid only $216 that Friday, and not the $230 that she had expected. She said she complained to him through another employee that she had not been paid the right amount. She said another employee told her he wanted her to stay back to clean the factory, but she left at 1:00 pm.

Mr Kirlappos denied he had tried to kiss her, and said that he had prepared the pays outside the office. Mr Kirlappos said she was not even paid $216 on that day. He said she did not get full wages and because he had paid her the $80 the previous Friday, this was deducted from her week's wage. He said that another employee and Ms Lin spoke to him outside the office about how much money she would be getting, and he told them in order to give her a chance to learn the work she would be getting $250 gross per week for a month, and that that was agreed upon. That Friday, he said, he also spoke to her through the other employee about whether she could stay back to 4:30 pm and work with two other girls offering her, he said, $7.50 per hour, but she left. Mr Kirlappos said he was upset by that as two others stayed back, but the job was not finished.

The incident at her flat - Saturday, 22 February 1992

Ms Lin gave evidence of receiving of two telephone calls from a co-worker and the co-worker's husband on the morning of Saturday 22 February. She understood from those calls that the first respondent wanted her to go to the factory and to do cleaning work for him, and that if she did not go she would not be able to work on the Monday and would not get the two days' pay for the previous Thursday and Friday. She refused.

The first respondent then arrived at her flat, she said. He came to the door and told her he wished to speak to her and to give her her pay. She said she opened the security screen door and let him in and asked him to sit on a single sofa chair and gave him a glass of juice. She and her daughter sat on the other sofa. She said he sat next to her and took out a $5 note and gave it to her daughter, who was then 7 years old. Ms. Lin said she told him not to do that and he took out a $50 note, and he reached out his arm, grabbed hold of her neck and kissed her while placing his hand on his erect penis. He told her he liked her very much and she said he smelled of drink, she said he took one of her hands and placed it on his penis, but she jumped up and said no, took hold of her daughter and told him to get out. She said he approached her again, kissed her daughter and touched Ms Lin's breast and told her that he could come twice a week and pay her. She understood he meant he would pay her for sex. The complainant said she told him no, she had a husband and that he had then said her friend had said she did not have one. He handed her an envelope with money in it. But a few minutes later he called back through the intercom and said he had lost his keys in her house. She let him in and eventually he found them under the cushion on the sofa. As she opened the door to let him out he touched her breast telling her he could come twice a week and could pay her. She said she pushed him out, and that he telephoned her later and told her she could return to work on Monday.

The first respondent testified that he had gone to the factory on the morning of Saturday 22 February, and checked the work that had been left from the previous day and found work left undone from the day before and that waistbands, which had been worked on by Ms Lin, were damaged. He said he rang another worker to ask why Ms. Lin had not stayed back, who told him because the money was not enough, and that he had said that she should have told him. He said he then rang the other worker again and told her to tell Joy to come and collect her money for the one and a half day's work that he owed her. He said he did this because she had damaged the waistbands, left without explaining why and he was upset about that and he wanted to stop her working. He said he owed her $80 but to cover any eventuality he was prepared to give her $100. He said later that the other employee had telephoned him back and told him the complainant could not come because she was baby sitting, so he told the other employee to ring Ms Lin again and tell her to go downstairs on the footpath, in fifteen minutes time, so that he could give her the money he owed her and that he did not want her to come back on the Monday. He denied he had obtained Ms Lin's address from her employment form as he did not have it then, and said that the other worker had given him the address.

He said he drove to her residence, and that he waited outside because he did not know the number of her unit, and when he had ascertained where she lived he went to the door of her unit, and when she answered her door, Mr Kirlappos said he removed the envelope and said to her, "your money, and I don't want you to come back on Monday", and that she had then invited him in, showed him the unit and gave him juice and a cigarette. He said he took out a $5 dollar note for her daughter, but as Ms Lin said "no" to her daughter and as he was trying to please her, he took back the $5 and put his hand in his pocket for $10, but took out a $50 note and left it there, but Ms Lin said, "no", so he took the money and put it back into his pocket. He denied he had kissed her, touched her or had suggested that he visit her twice a week for sex and that he would pay her. He denied he was drinking, or that he had placed his or her hand on his penis, or that she had told him in a loud voice to get out, or that she had said she had a husband. He claimed that when he stood up from the couch he realised he did not have the keys to his car in his pocket, and saying that maybe he forgot the key in his car, that he went downstairs but the keys were not there and he returned to ask her for his keys and that she had gone inside and brought the keys out and he left. He denied he phoned her later to tell her not to return on the Monday. He said that when she came back and gave him the keys she looked at him with worried eyes, that he felt pity for her and her daughter so he told her she could come back if she wanted to and that whenever "the girls" were required to stay back at work she should stay. He suggested that he had decided to re-employ her just to help her.

The complaint to the Police

Ms Lin's boyfriend, Mr Cheung, arrived home from work that evening to find her crying and she told him of the incident. When Mr Cheung returned to work he was advised by his boss at the Salvation Army to report the case to the Marrickville Police, and to approach the equal opportunity and sex discrimination authorities. He went to the police station on 25 February 1992 and complained of the incident, and Ms Lin's complaint, written by her in Chinese script was lodged with the Anti-Discrimination Board on 26 February 1992.

A report dated 22 March 1993 prepared by a police constable from rough notes made in his duty book, was provided to the Commission by the New South Wales Police Service. It indicates that the only time Ms Lin spoke to the Marrickville police was on 27 February 1992, with Mr Cheung interpreting for her. These notes also suggest that Mr Cheung told the Marrickville police on 2 March 1992 that she no longer wished to pursue the matter and that the only thing she wanted was to return to work, that she was not prepared "to go to paper" and that Mr Cheung asked the police to speak to her employer and try to conciliate the matter. Mr Cheung gave evidence of his conversations with the police officers and said that at some stage the police officer had told him he had spoken to the boss who had promised Ms Lin could go back to work and that the police officer had also advised him to speak to the boss.

Ms Lin believed from what she had been told by Mr Cheung that Mr Kirlappos had been warned by the police and had promised the police that he would not harass her and that he would pay her two weeks' wages for the time that she was not at work, and as she needed the money she was prepared to go back to work. She said she was not paid for those two weeks, but Mr Kirlappos' evidence was that there had been no conversation with the police about such wages.

None of the parties called the police officers involved. However the first respondent admitted he was interviewed by the police about a week or so after he visited her flat. He suggested that he told the police a condition upon which he would take her back, was that whenever it was required to stay back for work with the other girls she should stay.

In cross examination Mr Kirlappos said that he did not tell his wife he was going to Ms Lin's flat before he had gone there. He said he did not tell his wife he had been at Ms Lin's place until after he had spoken to the police, and that he had mentioned it to his wife after two weeks and when the police came along. He said he did not tell his wife he had gone to Ms Lin's house to sack her. Later he said he did not tell his wife that he had sacked Ms Lin that day but then said he had told her about it when he went home, but could not say he was sure about that.

Return to the Factory

Eventually Ms Lin returned to work, Mr Cheung taking her to the factory. Mr Cheung said they met the boss and his wife, and that the boss' wife asked him, "Why is it that your girlfriend hasn't turned up for a few days for work?", and that the boss was standing behind his wife. Both Ms Lin and Mr Cheung said that as Mr Cheung began to speak, the first respondent gestured not to say anything indicating his wife was there. The respondents' counsel suggested to Mr Cheung that when he had taken Ms Lin back to work Mr Cheung had had no conversation with the boss' wife.

However Mr Kirlappos said when Ms Lin returned to work with Mr Cheung, his wife had spoken to Mr Cheung and said, "Why did she disappear for a week or so and then she came back to work?," and that Mr Kirlappos had then told Ms Lin to start work again and his wife had said that "It was not nice to leave and come back whenever you like or feel like it.", and that neither Ms Lin nor Mr Cheung had responded to his wife's remarks. The complainant did not suggest that his unwelcome conduct continued after she returned to work.

Termination of Employment

Ms Lin said that she had resumed work on 9 March 1992 and that on 20 March 1992, she was dismissed by the first respondent who gave her no reason for doing so. Mr Cheung said he rang Mr Kirlappos asking him why he had fired Ms Lin after the police had warned him, and that Mr Kirlappos told him that it was his business and had nothing to do with Mr Cheung.

Mr Kirlappos testified that her employment was terminated, the second time, because she was unable to do any other work than cutting cottons, waistbands and buttonholes and when a particular job finished he had no other work to offer her. He claimed that although she tried, she was a very bad machinist, that although another "Chinese girl" had shown her how to do the hem lining two or three times, she had torn the lining on a garment and so he "let her go". He also said that he discussed the appointment and termination of staff with his wife.

I accept Ms Lin did not work at the Surry Hills factory after she began work at the Marrickville factory. The evidence showed that the group certificate issued by the second respondent was not accurate and I am satisfied that she was employed by the second respondent for about one month, and that she was dismissed about 20 March 1992.

Effect on Ms Lin

Ms Lin said she had not been in employment since then, and she said she became very depressed and tearful, that she has been unable to shop alone, has difficulty sleeping and cannot sleep without a light. She said she could not look for any other job as she was afraid the same thing might happen to her and she could not handle it. About a year after her dismissal she married Mr Cheung. Mr Cheung suffers from diabetes and high blood pressure and stopped working as a chef at about the end of 1993. He also gave evidence of the change in her since the incident. He said she now becomes angry with him and her daughter, and that she had consulted a Chinese doctor about a month after her dismissal.

Ms Lin was referred by the Marrickville Legal Centre to the Royal Prince Alfred Hospital Sexual Assault Centre on 11 March 1993 where she was seen by Katie Yuill, a social worker attached to the Centre. As Ms Yuill was overseas at the time of the hearing, she was not available for cross examination. Consequently, I will not have regard to the conclusions drawn by Ms Yuill in her report. Ms Yuill referred Ms Lin to Dr. Jocelyn Lin, a general practitioner, who began treating her in April 1993 with several sessions of relaxation techniques, gentle behavioural modification, sleep hygiene practices and simple systematic desensitisation for fear of going out alone. She also prescribed low dose nocturnal benzodiazepine for her. Dr Lin was available for cross examination by conference telephone, but the respondents chose not to cross examine her. In her report of 29 October 1993 she said that Ms Lin "is still having difficulties sleeping, regaining her confidence and independence to go outside alone, and remains anxious about the situation."

In October 1994 Ms Lin was examined by Dr. Carolyn Quadrio, a consultant psychiatrist. Ms Lin refused to be examined by a medical practitioner to be provided by the respondents at their cost and I did not accede to the respondents' application to order her to undergo such an examination. However the respondents' counsel did not challenge Dr Quadrio's qualifications. Dr Quadrio gave oral evidence on the second day of the hearing, more than one month after the respondents were provided with a copy of her report. In Dr Quadrio's opinion Ms Lin now manifests chronic depression, anxiety and phobic symptoms as well as symptoms of post-traumatic stress disorder. In cross examination Dr Quadrio made it clear that she was quite satisfied, on the basis of the history Ms Lin had given her, and of her observations of Ms Lin's behaviour and demeanour during her examination, that she found no evidence of psychosis nor of any major personality disturbance. Dr Quadrio also said that there was nothing in Ms Lin's history which suggested to her that Ms Lin was a person who had confabulated in the past, but from the history she had obtained from Ms Lin, Ms Lin had not anticipated her husband leaving her. Dr Quadrio thought that would have had a most marked effect on Ms Lin having to fend for herself emotionally and financially, that this initial trauma would have been present when she began work at the Marrickville factory, and as Ms Lin was doing menial work in unfamiliar cultural surroundings, an educated person accustomed to more sophisticated and skilled professional work, she would then have been in a vulnerable state. Otherwise was no evidence from which it can be inferred that she had suffered from any prior illness, mental or otherwise, either in China or elsewhere prior to her employment by the second respondent. Although counsel for the respondents carefully explored with her and with Dr Quadrio the effect upon the complainant of her separation from her husband, and Ms Lin said that having regard to the period of their separation, the news that he had been living with another woman did not come as a great shock to her, it can be inferred that the financial circumstances in which she found herself did. Her husband had also kept his new address from her.

Dr. Quadrio found it difficult to predict the outcome. In Dr Quadrio's view Ms Lin's shame, fears and mistrustfulness further isolated her from other immigrants and she was of the opinion that Ms Lin was afraid and suspicious of authorities because of the lengthy investigative process and repeated trauma of going over those events, and that the longer Ms Lin was out of the workforce the less likely she was to be rehabilitated. Dr Quadrio suggested that the quicker a person who had been traumatised was assimilated into a program such as a Commonwealth Rehabilitation Service rehabilitative program dealing with post traumatic stress, the better. She would have expected a social worker attached to the Royal Prince Alfred Hospital to know about those programs, which she thought would have been helpful to Ms Lin.

Neither the complainant nor the respondents called other employees from the factory to support either the complainant's allegations or the first respondent's evidence of what he said had occurred. Ms Lin and Mr Cheung suggested that the other factory workers had not been willing to give evidence and that their whereabouts were unknown. The respondents did not give a satisfactory explanation for not calling any or other officers of the company. The respondents' legal advisers had indicated that the first respondent's wife, who was a director of the second respondent would herself give evidence "to refute what she understands to be allegations that could well have been committed in her presence or at a time when she was in the factory premises" by Ms Lin as the complainant. Although Mrs Kirlappos was present at the hearing for the complainant's evidence, she was not called to give evidence.

The complainant sought compensation for loss of wages as well as for pain, suffering and humiliation. Ms. Lin is now in receipt of social security payments. Apart from Ms Lin's evidence of her seeking and receiving social security payments in May 1992, there was no evidence of the actual amount of social security benefits received by Ms Lin.

Findings

I mention that I realise the seriousness of my findings in this matter, not only to the first respondent, and I am most conscious of the need to act with considerable care so as to ensure that I am satisfied of the occurrence of the events alleged by Ms Lin in accordance with the appropriate standard of proof required in accordance with the principles laid down by the High Court in Briginshaw v. Briginshaw [1938] HCA 34; (1938) 60 C.L.R. 336. It is convenient to deal first with the allegation of sexual harassment. The answer to that issue depends largely, if not wholly, on the findings I make with respect to the events leading up to Ms Lin's return to work at the factory in March 1992.

Having observed the parties and after hearing and considering the whole of the evidence, I am satisfied that the complainant has proved, to the requisite standard, her allegations about the conduct of the first respondent. I do not accept the evidence of Mr Kirlappos of his conduct or the history of her employment. I am satisfied that the conduct of the first respondent, at the factory, prior to the events at her flat, occurred as the complainant recounted them. I accept that Ms Lin was paid $216 on her first pay day, and I do not accept that he had paid her $80 on the previous Friday. I accept the complainant's evidence that she had refused to go to the factory to clean as requested and that he attempted to kiss her on the first pay day. It can be inferred from the evidence that the first respondent's wife was somewhere at the factory when the button machine incident occurred. Although Ms Lin had not objected when she saw him touching other employers and the former employee, I am satisfied that when the incident at the buttonhole machine occurred, such conduct was not only unwelcome but the first respondent then knew that any such conduct or requests for sexual favours were unwelcome. I accept that Ms Lin was in a position of special vulnerability, owing to her recent arrival in a new country, her language difficulties and because, unexpectedly, she was required to support herself and her child. I have had regard also to his being likely to have known of her particular circumstances, in so far as she had very little English, that she was in particular need of employment, and that he understood she was separated from her husband. I accept then that when the first respondent as her boss called on her at her home, that his sexually suggestive comments, requests and actions were not only unwelcome to the complainant, but were abhorrent to her, and that the first respondent has no reason to suppose otherwise. I am satisfied on the balance of probabilities that the incident complained of at the complainant's flat did occur on 22 February 1992 that the respondent there touched her in the way she described and that he had requested and offered to pay her for sexual favours. Although it was evident that to do so caused her some considerable distress, she gave evidence at the hearing with dignity and conviction, and I accept that she was a truthful witness. In making this finding I have also had regard to the following matters:

(a) the first respondent admitted he did not tell his wife of his visit to Ms Lin's flat or that he was going to sack her until after the police had called on him, nor did he give a credible explanation for agreeing to take her back to work when she turned up at the factory with Mr Cheung, despite his wife's query and having regard to what he said of her work;

(b) Mrs Kirlappos was present at the hearing during the complainant's evidence, and she was said to have had discussions with her husband about the employment and termination of staff. No explanation was given for her not being called to give evidence;

(c) Ms Lin complained, with Mr Cheung's assistance, soon after the flat incident, to the police and the Anti-Discrimination Board of New South Wales;

(d) although more than one month elapsed between the first day of hearing when Ms Lin gave some of her evidence, and the second day when Mr Kirlappos was cross-examined, other than the group certificate the respondents did not seek to rely upon the factory's wages books or any other records which should have indicated the dates when she was paid or the amounts paid on those dates.

I accept that because Ms Lin believed the matter had been conciliated by the police, she returned to the Marrickville factory as she needed work. In considering the position of the second respondent, A & C Fashions Pty Ltd, I note that Mr Kirlappos and his wife are the only directors and shareholders of that company, that Mr Kirlappos was regarded as the boss, and other than his suggestion that his wife was usually at the factory throughout the working day, there was no evidence that the second respondent, as the employer of the first respondent took any steps to prevent his unlawful acts. The provisions of s. 106 of the Act are therefore satisfied and I find that A & C Fashions Pty Ltd is vicariously liable for the acts of sexual harassment by Mr Kirlappos. I find that the liability of Mr Kirlappos and A & C Fashions Pty Ltd is joint and several.

I now turn to consider whether, in view of these findings the complainant was subjected to discrimination on the ground of sex under s. 14(2). As conditions of employment include the psychological and emotional work environment, Mr Kirlappos' conduct not only produced a hostile work environment such that those conditions of employment were adversely affected, but was the reason for the first dismissal. Given the nature of the conduct I accept that she was subjected to it because she is female. I therefore find the complaint against Mr Kirlappos under s. 14 is substantiated with respect to her employment in February 1992. For this reason I find that A & C Fashions Pty Ltd is vicariously liable for that conduct and that the liability of Mr Kirlappos and A & C Fashions Pty Ltd is joint and several.

In establishing that one of the reasons for her dismissal related to her sex or a characteristic appertaining generally to women or generally imputed to women, and in the absence of direct evidence, the complainant may use in support inferences drawn from the primary facts. Ms Lin was not an experienced industrial machinist and although the machines at the factory were much faster than the pedal operated sewing machines she had used in China to make her own clothes, I do not accept that after her re-employment she was unable to reach the standard of any of the other machinists at the factory and ruined the clothing or that there was then no work for her because of the change in style of the garments produced at the factory. It follows that neither of these reasons is the more probable and innocent explanation for her dismissal. However, having regard to the whole history of her employment including what occurred on her return to work, clearly had she accepted his advances she would not have been dismissed. Her second dismissal, following on the police having taken some action on her complaint by interviewing the first respondent and her re-employment, was the final act in this saga of discriminatory conduct, and consequently the second respondent is liable for that contravention.

Damages

The relief sought by the complainant is confined to an award of damages by way of compensation. It was submitted on behalf of the respondents that it could be inferred, having regard to the paucity of evidence of medical treatment prior to her being seen by Ms Yuill, Dr Lin and Dr Quadrio, that she had failed to obtain medical treatment soon after the alleged incident, and consequently that she had failed to mitigate her damage : see Bennett v. Everitt [1988] E.O.C. 92-244. The only medical assistance or assessment which was scrutinised at the hearing was given or made at least 12 months after the conduct complained of occurred. I have also considered her returning to work believing that the police had conciliated the matter. Having regard to her social and cultural background, her limited understanding of English and the evident distress which she now suffers in describing the first respondent's conduct, and the fact that Mr Cheung also does not speak fluent English, on all of the evidence, any failure to obtain medical assistance or counselling until March 1993 was, in her particular circumstances, reasonable. I also accept, having regard to the expert medical evidence, that conduct of this type may cause serious emotional difficulties and psychological illness in the victim. I am satisfied that the first respondent's unlawful conduct caused the degree of injury claimed, and that her present condition results from the first respondent's unlawful conduct towards her during her employment by the second respondent. Her dismissal compounded and exacerbated her pain, suffering and humiliation, insofar as she was denied the opportunity, had she been able, to confirm her worth in the workplace. Accordingly I find that the harassment in February 1992, which was followed by her dismissal in March 1992, caused the complainant humiliation, pain and injury resulting in the chronic depression, anxiety and other phobic symptoms as described by Dr Quadrio. It is to be hoped that the conclusion of these proceedings may remove an obstacle to her rehabilitation.

The measure of damages by which the complainant is compensated extends by force of section 81(4) and is governed by the statute (Hall v. A & A Sheiban Pty Ltd [1989] FCA 72; (1989) 85 ALR 503; Aldridge v. Booth [1988] FCA 170; (1988) 80 ALR 1.). The complainant is entitled to compensation for loss attributable to the unlawful conduct. The distress and suffering caused to the complainant by the respondent's unlawful conduct is substantial and I am satisfied it has had a continuing effect upon her. Counsel for the respondents submitted that the amount claimed for economic loss did not take into account any social service payments made (Bennett v. Everitt (1988) EOC 92-244, especially at pp. 77, 284-77, 285). Since May 1992 she has been in receipt of social security payments, but I was not advised of the amount so received, I cannot be satisfied that the economic loss suffered is equivalent to the amount of wages she would have earned had she remained in employment.

There is also the question of actual legal costs incurred prior to the hearing, she was represented by counsel at the hearing and although I have no evidence of legal costs I consider it appropriate to make some small allowance for such expenses. Accordingly I propose to award a global sum inclusive of pain and humiliation and psychological trauma, a modest allowance for economic loss in respect of the two week period after the incident at the flat, and for the period from her dismissal in late March 1992 to May 1992. Taking all these matters in account, and having regard to like awards, I assess compensation by way of damages in the sum of $20,000 which includes an amount of $2,000 for legal expenses.

Conclusion

For these reasons I find the complaint is substantiated and I make the following determination :

In accordance with s. 81(1)(b)(iv) of the Act I declare that the complainant is entitled to the sum of $20,000 for which sum the first and second respondents are jointly and severally liable.

DATED this sixth day of January 1995.

P.M. Wolfe

Inquiry Commissioner