Hall v Naismith & Dept of Defence [1994] HREOCA 9 (31 March 1994)

Human Rights and Equal Opportunity Commission

Sex Discrimination Act 1984

No. H93/013

Between:

Theresa Hall

Complainant

John Naismith

and

Department of Defence

Respondents

Reasons for Decision

of Mrs Susan Crennan QC

Inquiry Commissioner

Hearing: Melbourne, Victoria

Date: 16 November 1993

Introduction

The complaint in this case was of sexual harassment of the complainant in the course of her employment with the Department of Defence as a civilian Steward General Officer Class 2 at the Other Ranks Mess of the Simpson Barracks at Watsonia. The incidents which gave rise to the complaint related to the conduct of Sergeant John Naismith, during his employment by the Department of Defence as the kitchen manager of the Other Ranks Mess.

The complaint was lodged on 16 April 1991 with the Commissioner for Equal Opportunity, Victoria as agent for the Sex Discrimination Commissioner. As the complaint was unable to be resolved by conciliation, the Sex Discrimination Commissioner referred the complaint to the Commission in April 1993 for formal inquiry.

Shortly after the commencement of the hearing the complainant and the Department of Defence entered into settlement discussions. As a result of those discussions the complaint was resolved as against the Department of Defence and, accordingly, the complainant advised that she intended to proceed only against John Naismith.

There was no appearance by John Naismith. I am satisfied that John Naismith, formerly Sergeant Naismith, was given notice of the hearing and given an opportunity to be heard but declined it. In this regard I refer to Exhibit B which contains correspondence dated 10, 11 and 15 November 1993.

At the conclusion of the hearing of the evidence I made a ruling on the question of liability, finding the complainant's case proven and declaring that John Naismith had contravened the Sex Discrimination Act 1984 (Cth) ("the Act"). I gave brief oral reasons for that conclusion at the time, and now set them out more fully in writing.

The Complaint

This complaint is made under the provisions of the Act alleging sexual harassment in employment within the meaning of section 28. Section 28 provides that it is unlawful for a person to harass sexually an employee of that person, or an employee of the person by whom the first mentioned person is employed.

"Sexual harassment" is defined in subsection (3) of section 28. In particular the definition covers the making of an unwelcome sexual advance or unwelcome request for sexual favours to the other person or the engagement in any other unwelcome conduct of a sexual nature. It also states that the situation has to be one where the other person (i.e. the complainant) has reasonable grounds for believing that a rejection of the advance, or refusal of the request, or the taking of objection to the conduct, would disadvantage the person in any way in connection with that employment, or, the person has in fact been disadvantaged in connection with their employment as a result of rejecting the advance, refusing the request or taking of objection to the conduct.

Background

In February 1991 the complainant commenced employment as a Civilian Steward General Service Officer Class 2 in the Other Ranks Mess at the Simpson Barracks of Watsonia, having been transferred there from the Sergeants Mess at the Watsonia base.

John Naismith, then Sergeant Naismith, commenced his employment at the Other Ranks Mess in January 1991 having been transferred there from the Broadmeadow army base. Sergeant Naismith's role was that of kitchen manager.

Incidents of Sexual Harassment

In her evidence to the Inquiry the complainant described a course of conduct which she alleged constituted sexual harassment. Her evidence as it relates to each of the incidents involving John Naismith was as follows:

(a) "On Tuesday, 26 March I was rostered on from 7.15 am to 7.15 pm. During the day Mrs Van De Duim and myself and other staff members were seated at the staff table having a break. Mrs Van De Duim was seated to my left, two places away. Sergeant Naismith asked her was she interested in having an affair, had she ever had an affair? She said, "No, thank you, I'm happily married" and she was not interested in having an affair.

Whilst this conversation was taking place Sergeant Naismith was pressing his shoulder and upper arm onto Mrs Van De Duim's right side. After Mrs Van De Duim had said she was not interested Sergeant Naismith said, "Well, what about Terri?" and moved his chair towards me. As he was saying this he put his right hand on my knee and started to pull my below (knee) length skirt up to the middle of my thigh in one movement. I pushed his hand away and pulled my skirt down.

Sergeant Naismith laughed and went on talking to the others at the table. I was shocked and too upset to say anything to him. At no time did I give my permission, nor did my behaviour give any reason that I wished to be touched. During the rest of the afternoon Sergeant Naismith continued on to both Jane and myself, that is Jane Van De Duim and myself, about affairs."

(b) "On Thursday, 4 April 1991, I was on duty. Mrs Van De Duim was on medical restriction after an operation. Sergeant Naismith was constantly telling her that she was sitting down bludging. We were told she was putting a strain on myself and Peppi Mercuri (another staff member). I felt that Jane was a very hard worker and did more than she should. After being told to wash and wax the floor I started to work and spilt some liquid wax on my skirt and shoes. Sergeant Naismith said to me, "You know what that looks like, don't you", and laughed as he was leering me up and down in the direction of my breasts. This had been said on several occasions before this day and on that day. I indicated I did not find it funny and I would ignore him or walk away from him. But I had just about had enough."

(c) "Also on this day I was bending down when Sergeant Naismith came and stood approximately 18 inches from me and said, "While you're down there." This happened quite often. I didn't laugh. I turned away. He laughed and walked away. Sergeant Naismith had (said) that often prior to that day and did it when Mrs Van De Duim and I were picking anything up."

(d) "On the same day when Sergeant Naismith asked her about her recent surgery and how she was feeling, Jane had said she was in a bit of pain but managing well. Sergeant Naismith stuck his finger up and said that he had this ready for her. Not knowing what she was talking about, Jane asked what? He said, "I have this ready to wipe your arse." Jane told Naismith that he wasn't on the list of helpers. I took this to mean, "go away". We both walked away. We did not laugh."

The complainant also alleged that:

" Sergeant Naismith also stated on numerous occasions that our "tits were too small, but any more than a mouthful is a waste anyway." This was directed at me on many occasions and also to Jane and to nobody in particular. It was his everyday way of dealing, though he may not have had actually said it, everyday."

The complainant further gave evidence that such difficulties as she had described herself having with Sergeant Naismith continued until she was transferred back to the Sergeants' Mess towards the end of April. Further she alleged a "petty campaign" against her as a result of her complaint and her request for a transfer.

In her evidence the complainant also made allegations concerning worksheets, telephone calls to her home and tailgating. It does not seem to be necessary to make any findings about the worksheets in this hearing concerning John Naismith, as the worksheets are relevant to the Department of Defence, in respect of which the complaint has now been withdrawn. Further, it is not possible to make any findings in relation to telephone calls and tailgating as I cannot be satisfied to the requisite standard in relation to those matters.

Conclusion

I am satisfied on the undisputed evidence of Mrs Hall that during the course of her employment as a General Service Officer Grade 2 in the Other Ranks Mess, Simpson Barracks, Watsonia, the first respondent, John Naismith, then Sgt Naismith, did at the Other Ranks Mess, Simpson Barracks, Watsonia, engage in conduct prohibited under the Act, being sexual harassment of her by reason of recurrent foul language and recurrent sexual innuendo over the period of time, 26 March 1991 until about the end of April 1991, and I am further satisfied that the conduct of which she has given evidence is wholly unacceptable in the workplace. I am also satisfied on the evidence that Mrs Hall has been disadvantaged in her employment in terms of section 28(3) of the Act as a result of that conduct.

Being satisfied that John Naismith engaged in unlawful conduct, being sexual harassment in employment prohibited under the provisions of section 28(1)(b) of the Act, I find the complaint substantiated, under section 81(1)(b) of the Act

I declare under section 81(1)(b)(iv) of the Act that John Naismith pay the sum of $5000 in damages to Mrs Hall in respect of that conduct. In fixing that quantum I have taken into account like awards in other cases. I include in that global award damages for humiliation, loss of dignity and injury to feelings.

Suppression Order

I continue the order made during the proceedings under s.67(1) of the Act prohibiting publication of the name of a witness.

Dated this 31st day of March 1994.

Susan Crennan Q.C

Inquiry Commissioner