Correia v Juergin Grundig & J & M Grundig Pty Ltd [1995] HREOCA 19 (31 July 1995)

Human Rights and Equal Opportunity Commission

Sex Discrimination Act 1984 (Cth)

No. H 95/11

Between:

Alison Correia

Complainant

and

Juergen Grundig

First Respondent

J & M Grundig Pty Ltd

Second Respondent

REASONS FOR DECISION

OF THE PRESIDENT

SIR RONALD WILSON

INQUIRY COMMISSIONER

Date of Decision: 31 July 1995

Hearing: Sydney, NSW

Date: 14 June 1995

1. INTRODUCTION

On 29 October 1993, the Human Rights and Equal Opportunity Commission ("the Commission") received a complaint of sexual harassment made by Ms Alison Correia ("the complainant") against Mr Juergen Grundig ("the first respondent") and her ex-employer J & M Grundig Pty Ltd ("the second respondent"). The second respondent traded under the business name of Grundig Photography. The first respondent is a director of the company.

The complainant commenced employment with Grundig Photography on 9 August 1993, having responded to an advertisement published in a local newspaper, THE TORCH, on 30 June 1993. The position advertised was described as "Office and Promotion Manager" and was detailed as follows:

"This unique position calls for a reliable, responsible and self-initiating person who will be rewarded for excellent performance by way of appropriate salary and commission.

Duties entail basic organising of the office and promotional work. Experience in the photography industry an advantage but not essential. Computer literacy and good general business practices are the real requirements for this job. The proprietor of the business which is well established in the Bankstown area needs someone who wants to share in making the business bigger and better. Flexible hours available for the right person.

Dedicated and experienced people only please apply......"

The employment terminated when the complainant resigned, without notice, by letter dated 21 October 1993. Following the failure of attempted conciliation proceedings, the matter was referred by the Sex Discrimination Commissioner to the Commission for hearing on 20 December 1994, pursuant to s.57(1)(a) and (b) and s.59(1) of the Sex Discrimination Act 1984 (Cth) ("the Act").

2. THE LAW

The Act declares sexual harassment in the workplace to be unlawful. The material provisions of the Act are as follows:

"28A (1) For the purposes of this Division, a person sexually harasses another person (the

"person harassed") if:

(a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or

(b) engages in other unwelcome conduct of a sexual nature in relation to the person harassed;

in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimidated.

(2) In this section: "conduct of a sexual nature" includes making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing."

"28B (1) It is unlawful for a person to sexually harass:

(a) an employee of the person;

.........."

3. THE EVIDENCE

Evidence of complainant

The history of this comparatively short period of employment, as described by the complainant, held considerable disappointment and distress for her. She had responded to the advertisement with enthusiasm because, to a person with her experience and managerial gifts, it seemed to offer considerable fulfilment, together with considerable status. Unfortunately, she claims never to have received the opportunity to meet the challenge of promoting the business in the way represented by the advertisement. She said the office was a mess and she was required to spend a good part of her time minding the office and completing rather menial tasks.

A detailed description of the complainant's allegations of sexual harassment is contained in her letter to the Commission dated 22 October 1993, written apparently on the day following her resignation. As I have said, it was received by the Commission on 29 October 1993.

According to the complainant, the first incident occurred approximately two weeks after the complainant started in the job. The first respondent met with three staff members, including the complainant, in the lounge/dining room of the respondent's premises. The premises consist of two levels, with the public areas downstairs and the respondent's living quarters upstairs. The lounge/dining room is upstairs and is used as a meeting room but the remainder of the first floor is private. At the conclusion of the meeting, two of the members of staff went downstairs leaving the complainant and respondent together. The complainant says she had started to leave when the first respondent came up behind her and put his arms around her. He snuggled his face into her neck and mumbled "We'll be alright". The complainant says she said nothing to him but did attempt to move away. The complainant says she didn't say anything because she had only been employed there a short time and "didn't know him, his personality, if he was excited, just a one off".

The next incident occurred one week later when the respondent bought lunch for the complainant and another member of staff. They had a bottle of wine with the Chinese lunch out in the back garden. When they returned to the office, the complainant remarked to the respondent that eating such a large lunch always made her tired. She said the respondent replied that there were plenty of beds upstairs and that they could always go up there for a "lay-down". She answered that she had left jobs for less than his "snide" comments. He backed off.

About ten days later, the respondent invited her to join him at the rear of the shop to view some negatives that he was working on. As she began to leave the area, the respondent again grabbed her around her waist and stopped her progress. She said he then embraced her, snuggling his body close to hers. She told him quite emphatically to stop it and that she was serious. The respondent said "I know, I know", and the complainant left the area.

On 20 September 1993, the complainant attended a seminar on Studio Management at Avoca Beach. It was the first day of a two-day seminar and the complainant believed it went very well and was very interesting. The respondent arrived at the seminar at about 6.00pm, intending to attend the second day of the seminar. The complainant says that although she preferred to return home to her two young children at the end of the first day, the respondent insisted that she stay overnight. There was a dinner that evening to be followed by a photographic competition afterwards. They were seated together at dinner when one of the organisers urged people to hurry and finish their meal as "we are running late". The complainant says the respondent then said to her, "Looks like we'll have to have a quickie, Alison" and suggested he was referring to dessert. They completed dinner and proceeded to the main hall to view the judging. To begin with, they sat together, but after about twenty minutes the complainant said she could not see and moved to the back of the room. She explained in her letter of complaint that she had found it necessary to do this because the respondent had made her feel uncomfortable by leaning close to her, with his arm around her chair.

The complainant further said that as she stood at the back of the hall, a man, Mr Danny Dekker, who was attending the seminar with his wife, commented to her on the respondent's behaviour and warned her to be careful. He also told her about the respondent's behaviour at another seminar some time before. She said she mentioned her concerns to Mr Dekker, who said he felt they were well justified.

At about 11.30pm, the complainant told the respondent that she was retiring for the night. She said he suggested - almost insisted - that he walk her to her room. She declined and left immediately for her room.

The next morning the complainant and respondent breakfasted together and then the complainant prepared to leave. She said goodbye to the respondent who then put his arms around her and gave her a big kiss. She says she could not hide her disgust and walked off quickly to her car and drove back to Sydney.

Her complaint concludes with the statement that she left the respondent's employ on Thursday 21 October after giving 24 hours notice, and a summary which read:

"Two weeks following commencement [of the employment] the sexual implications started and, despite warnings, it continued until early October when Mr Grundig went overseas for nearly two weeks".

It appears to be common ground between the parties that, following the respondent's return from New Zealand, there was considerable friction between them, culminating in a heated exchange which ended with the complainant leaving the premises. The following day, the respondent found a resignation letter in the office, reading as follows:

21 October, 1993

Juergen,

After the last week of constant arguments with both of us being totally frustrated with the environment, I will not be returning to work and have terminated my services with you.

I was so excited about this position initially - I thought I could really get involved and help you so much. I didn't realise I would be learning how to stick photos on cards and how to cut paper properly.

You don't need someone with my background - you can get someone through the CES to do what I have been doing for the last 3 months and pay them a whole lot less.

The other thing I have to say Juergen, is that from the very beginning, I strongly resented your constant sexual innuendos and the fact that you grabbed me and cuddled me on numerous occasions. This behaviour has had me very worried over the months and from the outset, I was not sure that I could continue working here due to this fact.

I have calculated my termination pay and have deducted the $500.00 loan that you made to me. Everything is in the paybook and has been done according to the Regulations.

I hope you will find someone more appropriate for this position.

Alison J. Correia.

P.S. I will expect a cheque for $171.00 to be posted to the following address on Friday this week.

117 Malvern Street, PANANIA NSW 2213

Evidence of Respondents

The response of the first respondent to the complaint is to describe it as unbelievable and to deny any sexual impropriety. His comments in relation to each of the incidents described by the complainant are set out hereunder.

In relation to the first incident, he says that his remark "We'll be alright", following the upstairs meeting was simply an expression of confidence that, through their joint efforts, the business would prosper.

With respect to the second incident, when the complainant commented after the Chinese lunch that she was tired, the first respondent denies that he suggested in any way, that they could go upstairs for a "lay down".

In relation to all the alleged incidents, he denies embracing her on any occasion. He admits that he is a friendly person and that if he touched her on any occasion it was without any sexual intent.

With regard to the seminar at Avoca Beach, the first respondent does not deny that he encouraged the complainant to stay overnight. He says that, at her request, he agreed without demur to pay the extra money for her to occupy a single room while most of the other persons attending the seminar, including himself, occupied shared accommodation. He agrees that he offered to escort her to her room when she announced she was retiring for the night and said that he did so as a precaution for safety reasons as she would have to go through bushland to reach her room. He did not persist when she declined his offer.

As I understand the evidence, he says he may have kissed her on the cheek when saying goodbye the following morning when she left for Sydney but explains this as a customary gesture common to his culture as a West European and devoid of any sexual content.

The first respondent said that following the seminar he went to New Zealand for a ten-day working holiday. He became troubled when he could not reach the complainant at the office while he was away, being met by the answering machine. On his return, he examined the books to check out the complainant's progress on the promotional side. Finding no evidence of any successful promotion, the first respondent says he said to the complainant "This is not going to work Alison, is it?", only to receive a lot of abusive language in response. They argued and the complainant left the office. The next day, when the first respondent returned to the office after performing work on location, he found the complainant's resignation letter waiting for him.

Other evidence was tendered by both parties, but it is convenient to refer to that evidence, so far as it is material, in the course of my discussion of the issues.

4. FINDINGS

This is a very sad case, leaving one to wonder how a promising business relationship could go so wrong in such a short time. It appears to have begun with both the complainant and the respondent exhibiting a degree of optimism for the future. However, in retrospect, it is clear that any optimism was misplaced. Although it may well be exaggerated, I find that there is some substance in the complainant's assessment that there were false expectations surrounding her employment. The advertisement spoke of an Office and Promotion Manager who would make the business bigger and better. But in reality there was little or no opportunity allowed to her to create more business for the studio. She was required to spend much of her time in the office because it "did not have the stable inner workings to create the success". She described the office procedures as "total mayhem". In such a context, it was not easy to bring to fulfilment the respondent's "grandiose ideas on how successful he could be".

It is not surprising that the complainant would soon become frustrated having to spend her time learning how to stick photos on cards and cut paper. I find that, leaving aside the Avoca Beach seminar, there was very little job satisfaction accruing to the complainant. This created a sense of enormous disappointment in her. I begin with this assessment because, in my opinion, it may serve to explain her reaction to the conduct of the respondent.

Before I attempt to link the two, let me evaluate the evidence relating to the alleged sexual harassment.

The first incident confronts me with two irreconcilable versions of the alleged event. The complainant says the other two members of the staff who had been present had already left the room to go downstairs, she apparently did not go with them, thereby leaving her alone with the respondent. He then came up behind her and put his arms around her, snuggled his face into her neck and mumbled "We'll be alright". The first respondent denies that he embraced the complainant but stated that it is possible he had been enthusiastic and may have made the comment as an expression of his confidence that their business relationship was going to turn out well. It may be significant that in this instance, the complainant did not say or do anything which could lead the respondent to appreciate that his conduct was unwelcome. In the end, however, I shall have to decide whether I accept the complainant's version. If I accept the complainant's version, I shall then have to consider whether, in the words of s.28A(1) of the Act, a "a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimidated".

The second incident allegedly followed the Chinese lunch in the garden. Again, the respondent denies making any such remark, and particularly that it was made in the manner alleged. Ultimately I shall have to decide who to believe. It may be that this allegation is equivocal in that it could amount to no more than the complainant, having introduced the subject of tiredness, was told that she could have a rest on one of the beds upstairs if she wished to do so.

The third incident was an allegation of another embrace, in the office, with the respondent snuggling his body close to hers. Again, the respondent denies that the incident ever took place. By this time, of course, if the complainant is to be believed, there can be no doubt that the respondent knew that she found his conduct to be offensive.

The fourth incident related to the seminar at Avoca Beach. In essence, the complaint is that the respondent was motivated by sexual designs in pressing her to stay overnight and in acceding to her request that he secure single room accommodation for her. It might be said that if she was really concerned about any designs that the respondent may have had, why did she not seek the safety of accommodation shared with another female? In any event, her anxiety proved to be unfounded because the respondent did not press his offer to escort her to her room and did not thereafter make any attempt to disturb her rest.

The complainant further alleges that the respondent was unduly attentive from the time of his arrival about 6.00pm and her retiring to bed at 11.30pm. Again, there is a conflict in the evidence as to whether the respondent made the remark about "having a quickie" when the diners were urged to finish their meal quickly so the evening judging could begin.

It is also alleged that when they sat together in the hall for the evening judging, the respondent made the complainant feel uncomfortable by leaning close to her, with his arm resting on the back of her chair. After about twenty minutes, she left her chair and stood at the back of the hall. There she got into conversation with Mr Dekker. Mr Dekker had noticed the behaviour of the respondent towards the complainant and had assumed that he was her boyfriend. The complainant said Mr Dekker warned her to be careful and told her about the respondent's behaviour at another seminar. She said she shared her concerns with Mr Dekker, a person she had not met before that day, and he said he felt they were well justified.

This incident assumes some importance, because it is the only one in respect of which the complainant was able to call a witness to corroborate her evidence. Mr Dekker testified that he had noticed the respondent with his arm around the complainant and thought she must be his girlfriend. He also thought that she was leaning away from him. Unfortunately, so far as the usefulness of his evidence is concerned, Mr Dekker went on to say that it was in the morning when he first noticed them and repeated that it was daytime. He also said that he had talked with the complainant again the next day. Mr Dekker was clearly mistaken in both these matters. As he said, it was a long time ago.

It was also disclosed through Mr Dekker that the respondent had been in touch with him since the seminar and that the approach had aggravated him. He agreed that he had said to the respondent "Are you hassling me?"

The respondent also called one witness to support his evidence. This was a young woman, Ms Nicole Lind. She said she had worked for the respondent for five years, working four days each week. She said she had never seen the respondent behaving incorrectly and believed him to be a well-respected and very nice man. She said she would not object to the respondent kissing her on the cheek.

Ultimately, as I have said, I can only reach a conclusion in this case by determining whether I can accept the word of the complainant against that of the respondent. In relation to the alleged harassment, the two stories are diametrically opposed.

In order to facilitate my task, each of the parties has submitted statutory declarations or statements in writing from four or five people. They are in the nature of character references. The people in question were not present when any of the alleged incidents of harassment are said to have taken place and they were not called to give evidence. Nevertheless, their statements are capable of contributing to a background against which the evidence may be considered.

Several points emerge from this material:

(a) Several of the statements submitted by the complainant detail statements made by her to her friends indicating that she was troubled by the familiarity shown towards her by the respondent.

(b) Several of the same statements describe the kind of person the complainant is. She is said to be a "very forthright, strong person who has worked in a variety of industries" and "a very `up-front' person who doesn't mince her words".

(c) Her partner provides a more graphic description:

"Alison is a pretty tough lady, capable of handling herself, so when she came home from work and first complained to me that her boss had grabbed her from behind and kissed her neck, I basically shrugged my shoulders and told her that she was a big girl and could handle it."

(d) The complainant was also described as "a reliable and valued employee having often worked her way up to the top ranks within specific industries", "a loyal and dedicated employee whose inter-personal skills are beyond reproach", "a true and honest friend" and, again, from her partner, "a wonderful mother to her two children and loyal to me in our relationship".

On the other hand, the respondent is also described in very favourable terms. A Ms Kay Leishman declared that she had used his professional services and had been impressed with his professionalism and attitude towards his business. She had been instrumental in the respondent employing the complainant, had composed the advertisement and on behalf of the respondent had interviewed the complainant over the telephone. She had recommended her engagement. Later on, she visited the respondent's premises, saw them both working together, looked at the work being done on the computer and stayed for a Chinese lunch upstairs with just the two of them. She left with the impression that all was well. She described the respondent as a generous and community-minded person, and was impressed by his closeness to his children and his regard for family life.

A Ms Theresa Burdon, who visits the respondent's home and place of business twice a week to tutor his son, is confident that he is a caring man who would, on all occasions, behave only in an honourable manner. She recommends him as a gentleman in every sense of the word.

Another referee, Reverend Ken Cornwall, a former Principal of MLC School, Burwood, speaks of the respondent's work as the official school photographer of the school; he was highly regarded and completely trusted, and the school was very particular about having people of impeccable character in such a position.

It now remains for me to make the critical findings that will resolve this very difficult case. It is difficult because the evidence of the complainant and the respondent is irreconcilable. That evidence comes from two persons who, as the references to which I have referred show, are very fine people who are regarded by their friends and colleagues as trustworthy persons.

I have wrestled long and hard with the evidence, searching for any pointers that might direct me to where the truth lies. I emphasise, at the outset, that I do not minimise the seriousness of the complaint. I bear in mind the vulnerability of a woman in relating to an employer in a small business where there are seldom any witnesses to the attitudes and behaviour of the one toward the other and vice versa. Although there may be those who would characterise the allegations in this case as coming at the lower end of the scale of harassment, I do not believe it is helpful to engage in comparisons of that kind. Any level of harassment is demeaning and humiliating to a woman and is to be condemned. This is not to say that the standard of proof required of a complainant may not vary according to the seriousness attaching to a complaint: see Briginshaw -v- Briginshaw [1938] HCA 34; (1938) 60 CLR 336. I bear in mind also that the task that confronts an unrepresented complainant in the presentation of her case is a daunting one. I have sought to ensure that the evaluation of the complainant's case does not suffer by reason of that fact.

Having carefully considered the evidence and borne in mind the considerations to which I have referred above, I am not persuaded that the complaint has been substantiated. The reasons that lead me to this finding may be listed as follows:

(a) There was only one witness called for the complainant who might have been able to corroborate the evidence of the complainant.

This was Mr Dekker who attended the Avoca Beach seminar. Unfortunately, his memory of the event tended to render his evidence less persuasive. I was also unimpressed by Mr Dekker's demeanour in the witness box.

(b) I am unable to reconcile the kind of person described in the references produced by the complainant and confirmed, if I may say so, by my observation of her in the conduct of her case during the hearing, with her stated reaction to the alleged conduct of the respondent. Her reaction did not match the description of the complainant as a "very forthright, strong person", "a very 'up-front' person who does not mince her words", or, in the words of her partner, "a pretty tough lady, capable of handling herself". From my observation of both the complainant and the respondent during the hearing I gained the impression that the complainant was the more dominant person of the two. I am left with this difficulty, namely, that if the respondent did engage in the conduct alleged against him, then I cannot understand why or how the complainant tolerated it, allowing it to continue and to occasion her such distress.

(c) If the respondent was activated by any sexual interest in the complainant, then I would have expected it to have emerged unequivocally during the Avoca Beach seminar. They were at the same venue overnight and the complainant at her own request was occupying a single room. Yet the respondent had not initiated any move to provide the complainant with a single room, nor had he made any move himself to have a single room. Furthermore, having had his offer to escort the complainant to her room resisted by her, he did not accompany her, nor did he approach her room later in the evening or night. They did not meet again until breakfast the following morning, following which the complainant left for Sydney.

(d) The evidence of Ms Nicole Lind offers some support, albeit slight support, for the evidence of the respondent. It is slight support because, although she worked throughout the period of the complainant's employment on four days each week, there were comparatively few alleged incidents and they could have occurred when Ms Lind was not present. Nevertheless, she testified that she had worked for the respondent for five years and that he was a very nice, well respected man and that she would not object to him kissing her on the cheek.

(e) It is unpalatable to have to mention it, but I am bound when considering whether, in the light of the evidence of the respondent, I can accept the evidence of the complainant, to have regard to the effect of the evidence related to the manner in which she handled the resources of the business when they were entrusted to her. When the evidence was given, I made an order pursuant to s. 67 of the Act that until further notice this evidence should

not be published. Although I am obliged to refer to it in this manner, I do not believe it is necessary for me to outline the details of it. The parties will know the evidence to which I refer; inevitably it renders the complainant's evidence less worthy of trust. I renew the order under s. 67 on a permanent basis.

(f) I have considered whether the complainant could have completely misinterpreted the conduct of the respondent and whether the circumstances in which she terminated the employment could throw any light on the matter. I have already suggested that the history of the employment had induced considerable frustration and disappointment in the complainant. The tension and argument that characterised the end of the employment and the relationship left the complainant, I find, with a deep sense of disappointment and bitterness towards the respondent. I have no hesitation in finding that it was that sense of disappointment and bitterness that led to her resignation. The distress occasioned by the alleged sexual conduct of the respondent was not the activating cause. In my opinion, this appears from the letter of resignation, which focuses in the first place on the unsatisfactory working relationship and only secondarily on the question of sexual conduct. It is unnecessary for me to offer any explanation of the course of events, but it may be that the disappointment and bitterness which accompanied the termination of the relationship coloured the complainant's perception of the conduct of the respondent that had preceded it, leading to inaccuracy, exaggeration and perhaps a measure of misunderstanding.

Whatever be the answer to that question, I am bound to find that the complaint has not be substantiated.

The complaint must be dismissed.

DATED at Sydney this 31 day of July 1995

Ronald Wilson

President