Rohan v Robert Michael Thomas [1995] HREOCA 29 (27 November 1995)

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

Sex Discrimination Act 1984

No. H95/54

Between

ROWENA ROHAN

Complainant

- and -

ROBERT MICHAEL THOMAS

Respondent

REASONS FOR DECISION

of

Susan Crennan Q.C., Inquiry Commissioner

Date of Determination: 27 November 1995

Hearing Date: 30 October 1995 at Parramatta, NSW

Appearances: The parties appeared in person.

Background

On 11 August 1993 the Complainant Rowena Rohan who was then 21 years old commenced employment of a casual nature at Thomas' Turf, a small turf farming business conducted by the Respondent, Robert Michael Thomas from his home. Ms. Rohan had obtained this position through the Windsor branch of the Commonwealth Employment Service. She was employed at the turf farm on 11, 19, 20, 23, 25 and 26 August 1993.

Whilst it is part of the background but not part of the complaint in this proceeding, a charge of common and sexual assault brought against the Respondent as a result of the Complainant's information to the police was dismissed in the Penrith District Court.

Complaint

Ms. Rohan complained of sexual harassment in the workplace by Mr. Thomas, particularised by her as follows:-

(a) repeated references by Mr. Thomas to sexual matters and her sex life during working hours which culminated in sexual advances by Mr. Thomas;

(b) touching of a sexual nature; and

(c) being shown a five-minute amateur video of a stripper performing at a party, after which Mr. Thomas made two remarks of a sexual nature.

Ms. Rohan's main complaint was that particularised under (a) above. Ms. Rohan said of her complaints "... majority of it was verbal, however, there were times there was touching."

Response

Mr. Thomas did not deny that some discussions of a sexual nature took place between himself and Ms. Rohan during working hours, although he did dispute certain details of the allegations made by her. In essence his defence was that Ms. Rohan did not indicate at any time to him that such discussions were unwelcome to her and his evidence was that she was a willing participant in such discussions.

He also asserted that Ms. Rohan and her lesbian partner Ms. April Cheers demanded $1,000.00 from him as the price of their silence after he and Ms. Rohan had had sexual intercourse. He asserted that his failure to pay this sum resulted in Ms. Rohan's complaint of rape to the local police.

The Evidence

Each party appeared unrepresented and had an opportunity to cross-examine the other party.

(a) The allegation of repeated references to sexual matters including sexual advances during working hours.

Ms. Rohan gave evidence that from 19 August 1993 Mr. Thomas made sexual remarks to her about her figure and her looks. She said that at about the same time she confided to him that she was 'gay'. In that context he asked her to have a sexual relationship with him which she declined. Her evidence was that after this there were further prurient conversations and questions about her sex life with her lesbian partner and further advance of a sexual nature. Mr. Thomas gave evidence that when Ms. Rohan discussed her lovers with him he said to her "Well how about me?" and she said "I don't think so but I could give you a cuddle". He also admitted he told her she had legs like Elle MacPherson, although he denied discussing bisexuality with her.

There seemed to be no issue between the parties about the fact that they had conversations about sexual matters including about oral sex. Mr. Thomas appeared to have a prurient and excitable response to these conversations while Ms. Rohan did not regard a discussion with him of a preference by her for oral sex as momentous and revealed as much, perhaps unwittingly, in her cross-examination of Mr. Thomas. In fact, it was clear at a number of points in the evidence that Ms. Rohan did not find it remarkable that she had personal conversations with Mr. Thomas, a much older man, previously unknown to her, about her sex life with her lesbian partner Ms. Cheers, however she asserted she had such conversations to distract Mr. Thomas from his interest in her.

(b) Touching of a sexual nature.

Ms. Rohan did not seek to raise in these proceedings an alleged rape of her by Mr. Thomas. She gave evidence there was touching at work, as she put it "like on my shoulder - nothing in genital areas until after this incident [the after is superfluous - she meant until the incident of alleged rape]." She also said she indicated to Mr. Thomas the contact was unwelcome. She gave evidence of being pushed as part of the preliminary contact to an act of sexual intercourse. She admitted she engaged in foreplay with Mr. Thomas but said she did this because he told her that if she did that she could get up and leave the room.

Mr. Thomas gave evidence he never forced Ms. Rohan to do anything she appeared unwilling to do. He asserted, in cross-examination of Ms. Rohan, that a telephone rang in the middle of sexual intercourse between them and she waited for him to resume. She could not remember this. He asserted that she came to work the next day and they had lunch together and that any complaints about his conduct were initiated by Ms. Rohan's partner Ms. Cheers, particularly as a result of his failure to give them $1,000.00 as the price of their silence. Whilst the act of sexual intercourse is not the subject of the complaint, it is impossible to ignore it in the context that Ms. Rohan complains of touching of a sexual nature just prior to that event which touching Mr. Thomas perceived, according to his evidence, to be consensual. There was agreement between them that the act of intercourse followed an incident where she cut her finger and came up to the house with Mr. Thomas who helped her dress and bandage the wound.

(c) Showing of a video and sexual remarks made thereafter.

Ms. Rohan gave evidence in chief that she and Ms. Cheers watched the video described above although she also gave the following evidence in response to questions from me:

"Did you watch the video that Mr. Thomas was waving around at the bar table there? ...

"No, I did not, no."

"You did not see the video?" ... "No Ma'am".

In chief her evidence had been "April and I both went into the living room and watched the video which was about five minutes long". She then gave evidence of Mr. Thomas making remarks about strippers and about her body and that of Ms. Cheers. He did not deny the remarks about strippers but did deny further remarks. Ms. Rohan's evidence was she gave a laconic response to the entire conversation.

"Bob came back to the kitchen and made a comment about the stripper girls making a lot of money and if someone go (sic) all the way they get up (sic) $700. He also said something about April and I being able to do strip work, because we had the bodies for it. He then laughed and I said jokingly, "Yeah right", and then I said something about not being anybody's stripper. April, Bob and I then got into the truck and went to Bligh Park to leave business cards."

Parties

Given the differences in evidence given by each witness in respect of each of the three matters complained of, it is necessary to say something about each witness. Ms. Rohan had the demeanour of a capable young woman who was both worldly but also prone to depression. She appeared genuinely distressed from time to time as she gave evidence but, as I have said elsewhere in these reasons, she also found conversations with Mr. Thomas about lesbian sex unremarkable and had no apparent appreciation of the effect of these on him. She has mulled over these events since they occurred with professionals and gave evidence in the unsuccessful prosecution.

Mr. Thomas was a bluntly spoken turf farmer whose reactions to Mr. Rohan were simple and possibly misconceived. He had construed Ms. Rohan's conversations as establishing a degree of intimacy between them. He made frank admissions about certain conversations of a sexual nature. He vigorously denied some certain other allegations.

Where their versions of what was said differ I prefer his evidence which should not be misconstrued as in any way approving of or finding acceptable his conduct of using sexual language and making sexual advances in the workplace. There was no artifice in his manner of giving evidence whereas Ms. Rohan at certain points wished to play down the impact of her behaviour particularly her contemporaneous insouciance and her willingness to discuss personal details of her lesbian relationship.

The Law

Ms. Rohan's complaint is of sex discrimination by sexual harassment which is covered by the Sex Discrimination Act 1984. Section 28A provides:-

(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.

There can be no doubt that sexual advances and sexual conversations in the workplace can constitute sexual harassment, if they are unwelcome and occur in circumstances, such that a reasonable person having regard to all the circumstances would have anticipated that the person harassed would be offended, humiliated or intimidated.

Findings

(a) The allegation of repeated references to sexual matters including sexual advances during working hours.

Bearing in mind that there was no real factual dispute that conversations of a sexual nature took place, it is nevertheless difficult to make findings as the parties disagree completely about the context of such conversations. There was no doubt they worked closely together and were on first name terms, even when giving evidence. Ms. Rohan asserts the conversations were unwelcome but admits she discussed her personal life with her lesbian lover with Mr. Thomas. Mr. Thomas asserts comments of a sexual nature, including advances, were not unwelcome to Ms. Rohan, they were participated in by Ms. Rohan and there was no contemporaneous complaint about them. Mr. Thomas' defence places an onus on Ms. Rohan to prove the remarks actually harassed her by being unwelcome to her.

I find Ms. Rohan's evidence that conversations and advances were unwelcome and offensive in the main convincing therefore she is successful in her complaint in respect of sexual advances and conversations about sexual matters but I also find that Mr. Thomas did not necessarily appreciate their unwelcome nature and further find he failed to appreciate their unwelcome nature because of her apparent insouciance about such remarks at the time and her willingness to discuss her lesbian relationship in detail with him. The fact that he did not fully appreciate their unwelcome nature and the offence they gave to Ms. Rohan does not relieve him from liability. Further, given their age difference and the relationship of employer and employee the conversations would seem to a reasonable person to be liable to cause Ms. Rohan to feel offended, humiliated and intimidated.

(b) Touching of a sexual nature.

Insofar as Ms. Rohan gave evidence she was pushed as a preliminary to sexual intercourse I find it is impossible to find on the standard of proof set out in Briginshaw v. Briginshaw [1938] HCA 34; (1938) 60 CLR 336 that the pushing was unwelcome in the manner set out in section 28A. Relevant factors are that Ms. Rohan does not seek to make the sexual intercourse which occurred part of her complaint of sexual harassment and such pushing, as and if it occurred, cannot be separated from that event, in respect of which it was a preliminary and about which she does not seek to complain. Also the parties agreed there was discussion between them about Mr. Thomas giving Ms. Rohan $1,000.00 at about this time as she had numerous financial worries. Insofar as Ms. Rohan complains of touching on the shoulder I do not regard this or like touching as amounting to sexual harassment in this particular workplace.

(c) Showing of a video and sexual remarks made thereafter.

Ms. Rohan did not complain in her evidence in chief about the contents of the video although there was a Criminal Injuries Compensation Report dated 8 June 1995 in evidence which contained a reference to her "being forced to view pornographic material". Her complaint was mainly about remarks she alleged were made after the showing of the video to the effect that she and Ms. Cheers had the bodies to act as strippers and that some strippers made $700.00 by 'going all the way'. It is important in this context to make a finding about the watching of the video. Having regard to all the evidence on this topic I find Ms. Cheers and Ms. Rohan watched the video voluntarily without apparent resentment and that neither left the room during the five minutes when it was shown and that neither complained to Mr. Thomas after it was shown.

I further find that Mr. Thomas made the remark about some strippers receiving $700.00 for 'going all the way'. Indeed he admitted this. He said he was reporting what he had been told and the remark was not intended as harassment and that there was no contemporaneous objection by Ms. Rohan or Ms. Cheers. In all the circumstances I am unable to find this tasteless remark made to Ms. Rohan and Ms. Cheers constituted sexual harassment within the meaning of the Act.

Further, I find it improbable that Mr. Thomas said Ms. Cheers and Ms. Rohan had the bodies to become strippers. Ms. Cheers did not give evidence but such evidence as was given about her by Ms. Rohan and Mr. Thomas depicted her as a strong minded and outspoken person, committed at the time to a lesbian relationship with Ms. Rohan and in my view Mr. Thomas is unlikely to have made such a remark in the presence of and about both Ms. Rohan and Ms. Cheers. Mr. Thomas vigorously denied making such a remark whereas he admitted a number of other remarks which fell within Ms. Rohan's main complaint set out under (a) in these reasons.

However, I find alternatively that even if he made such a remark, having regard to all the circumstances and Ms. Rohan's own evidence of her reaction it did not constitute sexual harassment within the meaning of the Act.

Damages

The Complainant was uncomfortable about the sexual remarks and advances made to her by Mr. Thomas, although at the time her reactions even as described by her and certainly as described by the Respondent would hardly have conveyed her discomfort to him. I refer particularly to the evidence of her discussing her lesbian relationship in detail with him as a mechanism of distracting him.

She has suffered anxiety and distress affecting her emotionally and also expressed by physical symptoms of distress such as night-time teeth grinding and sleep disturbance almost two years after these events occurred. Reports from a treating dentist and treating psychiatrist were tendered although they were not called to give evidence. In the absence of oral evidence from them and of cross-examination of them, I am reluctant to find that all these matters are solely attributable to events, the subject of this inquiry, particularly as Ms. Rohan was upset about numerous other matters both at the time and subsequently. Ms. Rohan had medical insurance although this did not cover her pharmaceutical requirements for depression.

Ms. Rohan has not lost income. She is reasonably certain Mr. Thomas paid her in full and after she left his employ she obtained a position as a prison officer in a men's prison, which position she still holds. In this context, that is of making an award for damages under section 81 of the legislation, I have taken into account other recent awards made in respect of sexual harassment. See for example, Whittle & Hughes v Palette & Specific Pools (1994) EOC 92-621; and Harwin v Pateluch, a decision of Commissioner O'Connor dated 21 August 1995. I have also taken into account the differences between those cases and these facts, which are characterised by Ms. Rohan's apparent willingness to discuss sexual matters at least relating to her personal life as a lesbian, which confused Mr. Thomas about the unwelcome nature of other sexual conversations and advances going beyond discussion of her life with her partner.

Conclusions

I find the complaint of sexual discrimination by sexual harassment through sexual advances and conversations of sexual matters in breach of section 28B(1)(a) made out.

For injury to feelings and distress I consider the award must reflect the fact that Ms. Rohan did not evince contemporaneous distress at these conversations and indeed initiated conversations about sexual matters of interest to her, such as the fact that she was gay and in a relationship with Ms. Cheers and she volunteered personal details of that relationship. I therefore award $2,500.00 under this heading.

Accordingly, I direct that the Respondent pay the Complainant $2,500.00 pursuant to the provisions of section 81 of the Sex Discrimination Act.

Dated at Melbourne this 27 day of November 1995.

SUSAN CRENNAN Q.C.

Hearing Commissioner

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