Dippert v Luxford and Vrachnas Betabake Pty Ltd [1996] HREOCA 19 (18 July 1996)

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

SEX DISCRIMINATION ACT 1984 (CTH)

No. H 95/97

Between:

Lorelle Dippert

Complainant

and

Cliff Luxford

First Respondent

and

Vrachnas Betabake Pty Ltd

Second Respondent

REASONS FOR DECISION

of

Regina Graycar

Inquiry Commissioner

Location of Hearing: Sydney

Hearing Dates: 23 - 25 January 1996

Date of Decision: 18 July 1996

Appearances: Ms Sylvia Winters, instructed by Mary Turco, Solicitor, appeared for the complainant.

Mr John Therry-Ward appeared for the first respondent.

Mr Stuart Donaldson, instructed by Minter Ellison, Lawyers, appeared for the second respondent.

1. INTRODUCTION

On 14 December 1994, Ms Lorelle Dippert ("the complainant") lodged a complaint under the Sex Discrimination Act 1984 (Cth) ("the Act") alleging that she had been sexually harassed in the course of her employment with Vrachnas Betabake Pty Ltd ("the second respondent") by a fellow employee, Mr Cliff Luxford ("the first respondent").

On 30 May 1995, the Sex Discrimination Commissioner referred the matter to the Commission for inquiry pursuant to s57(1)(a) of the Act as she was of the opinion that the matter could not be settled by conciliation.

Pursuant to s59(1) of the Act, I conducted a public inquiry into the complaint on 23, 24 and 25 January 1996. At the outset of the hearing, I made an order under s67 of the Act suppressing the names of the witnesses and the parties until such time as a decision has been published, and proscribing the publication of any photographs of them. I also heard an application by the second respondent, supported by the first respondent, to undertake a view of the premises in which the events the subject of the complaint allegedly occurred. I did not accede to the application as I did not consider it necessary to view the premises, but indicated to the parties that I would reconsider that application as the evidence proceeded if it became apparent that a view of the premises would provide evidence that would not otherwise be available. In the event, the view did not proceed. I decided that there was ample evidence as to the layout of the premises and we were ably assisted in that regard by a diagram provided by the second respondent.

2. THE LAW

The relevant sections of the Act are as follows:

5. (1) For the purposes 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.

(2) For the purposes 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 the discriminator requires the aggrieved person to comply with a requirement or condition:

(a) with which a substantially higher proportion of persons of the opposite sex to the aggrieved person comply or are able to comply;

(b) which is not reasonable having regard to the circumstances of the case; and

(c) with which the aggrieved person does not or is not able to comply.

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.

(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 employment;

(c) by dismissing the employee; or

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

...

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; or

(b) a person who is seeking to become an employee of the person.

(2) It is unlawful for an employee to sexually harass a fellow employee or a person who is seeking employment with the same employer.

...

105. A person who causes, instructs, induces, aids or permits another person to do an act that is unlawful under Division 1 or 2 of Part II shall, for the purposes of this Act, be taken also to have done the act.

106.(1) Subject to subsection (2), where an employee or agent of a person does, in connection with the employment of the employee or with the duties of the agent as an agent:

(a) an act that would, if it were done by the person, be unlawful under Division 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 also done the 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 if it is established that the person took all reasonable steps to prevent the employee or agent from doing acts of the kind referred to in that paragraph.

...

81.(1) After holding an inquiry, the Commission may:

(a) dismiss the complaint the subject of the inquiry; or

(b) find the complaint substantiated and make a determination, which may include any one or more of the following:

(i) a declaration that the respondent has engaged in conduct rendered unlawful by this Act and should not repeat or continue such unlawful conduct;

(ii) a declaration that the respondent should perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant;

(iii) a declaration that the respondent should employ or re-employ the complainant;

(iv) a declaration that the respondent should pay to the complainant damages by way of compensation for any loss or damage suffered by reason of the conduct of the respondent;

(v) a declaration that the respondent should promote the complainant;

(vi) a declaration that the termination of a contract or agreement should be varied to redress any loss or damage suffered by the complainant;

(vii) a declaration that it would be inappropriate for any further action to be taken in the matter.

(2) A determination of the Commission under subsection (1) is not binding or conclusive between any of the parties to the determination.

(3) The Commission may, in the making of a determination under subsection (1), state any findings of fact upon which the determination is based.

(4) The damage referred to in paragraph (1) (b) includes injury to the complainant's feelings or humiliation suffered by the complainant.

...

3. THE EVIDENCE

3.1 The allegations of sexual harassment

The complainant commenced employment with the second respondent on 23 May 1994. The second respondent makes a range of cakes and pastries to service take-away shops, school canteens and industrial canteens and the shift upon which both the complainant and the first respondent were employed was the night packing shift.

In the complainant's letter to the Commission of 9 December 1994, and in the course of her evidence during the public inquiry, she made a number of allegations concerning behaviour she alleged was engaged in by the first respondent. The allegations fall into two categories: incidents which occurred more than once, and those which involve one-off incidents. Those in the first group, which are alleged to have occurred on more than one occasion, included:

* The first respondent is alleged to have told her a number of times "I love you".

* The first respondent is alleged to have said to her on a number of occasions "you're so big".

*

(a) The first respondent is alleged to have said to her on a number occasions: "I like black".

(b) The complainant also alleges that the first respondent leered at her and rolled his tongue around the outside of his lips in a suggestive manner on a number of occasions.

(c) The first respondent is alleged, on more than one occasion, to have made gestures with his hand underneath his apron which the complainant understood to be references to his penis.

(d) The complainant alleges that the first respondent made references in conversations with her to chocolate eclairs which she understood as sexual allusions.

(e) The complainant alleges that from time to time, the first respondent blocked her passage down the lines in which she was working which caused her to have to move very close to him in order to get past.

In addition, there were a number of allegations of specific conduct on particular occasions as follows:

(a) The complainant alleged that on an occasion on which she initiated a conversation with the first respondent about the baby shortly to be born to his de facto partner, he commented to the complainant: "If the baby is a girl, I want to call her Lorelle. I would like to have a baby with you".

(b) On an occasion when the complainant had been off work sick, the first respondent is alleged to have commented to her when she came back to work that he had missed her and had dreamt about her the previous night, suggesting that he could make her better and telling her that he dreamt that they had "hot and sweaty sex".

(c) The first respondent is alleged to have attempted to place his apron over the head of the complainant on an occasion when she was bending down near him, bringing her face into close proximity to his groin.

(d) The final allegation and the one which the complainant indicated precipitated her ceasing employment concerns the first respondent allegedly saying to the complainant "you can suck my penisaurus".

3.2 The complainant's evidence

The complainant gave evidence elaborating on her allegations which had originally been presented to the Commission in a twelve page statement dated 9 December 1994. She explained that the first respondent was well known for making comments of the type "I love you" and made them to other women in the workplace. Other women would laugh when he did this and she herself did so at the beginning. However, she stated that things had changed when, in June 1994, he had asked her where she was when she was off sick and said he had dreamed about her and about them having hot and sweaty sex. At this stage she said she did not know how to handle it and told her workmate Ms Cathy Srnic and also her workmate Ms Rose Joyce who she travelled to work with.

Ms Dippert was asked by her counsel about whether she felt she could talk to her supervisor about her concerns. She stated that she was concerned about breaches of confidence that had apparently occurred at the workplace and for this reason was reluctant to discuss matters with her supervisor.

Ms Dippert elaborated on each of the allegations outlined above.

She explained that the comments such as "I like black" were understood by her as references to the colour of her underwear, in particular her bras which were black and visible through her work clothing. As for "you're so big", she understood this as a reference to the size of her breasts. It was put to her in cross examination that she was a particularly large woman; she disagreed and pointed out that she was five feet ten and a half and average build for her height.

Ms Dippert says he made those comments on many occasions. She stated that at first she had tried to laugh off his comments, but after a while she stopped laughing and became disturbed by them. She also indicated that while he made comments such as "I love you" to other women in the workplace, so far as she was aware she was the only person to whom he said "you're so big" or "I like black". This led her to understand that they were directed at her personally.

Ms Dippert was asked by her counsel about her response to the tongue gestures and she indicated that she understood them to be insinuating oral sex.

In relation to the allegations about "chocolate eclairs" she indicated that she understood that they were references to size and thickness of his penis. She stated that the actions were sometimes accompanied by comments such as "I can show you something bigger than that" or "I've got something big and hard".

On other occasions she alleges that the first respondent would flick his apron by putting his hand under it and lifting it as if he had an erection. She also stated that on at least one occasion he said to her that it was lucky that he was wearing an apron otherwise he'd be embarrassed and, under cross examination, she indicated that she understood that comment to be suggesting that if he was not wearing an apron, it would be obvious that he had an erection.

Ms Dippert explained that she would often turn around and see the first respondent nearby staring at her. If she was forced to move close to him in order to pass him, she said that he would often make comments to her like "that felt good". She stressed that while he often was in close proximity to her and sometimes blocked her path when she tried to walk past him, at no time was there any actual bodily contact between them.

Ms Dippert was asked whether the level of background noise permitted her to hear these sorts of comments being made. She stated that while there was considerable background noise, it was not loud enough to stop them being audible.

Ms Dippert was cross examined extensively about why she did not report these incidents, either to her supervisor/s or to the Managing Director, Mr Clive Stuart. She explained that there were real risks of being ostracised by the other workers were she to do so. This was a particular concern for those working on the night shift. She had been told by a union representative that if she complained she would "cop flak" as had happened to other women in that workplace. And, as indicated earlier, she was concerned about other alleged breaches of confidence on the part of the supervisors. In his evidence, Mr Peter Roosevelt, the former supervisor, confirmed that there had been disquiet over an incident in which he had breached an employee's confidence.

Ms Dippert was also asked why she did not report the conduct to the visiting occupational nurse. She explained that she had always assumed that the nurse was there to deal with health issues and a matter such as this was not one that she perceived as being within the nurse's responsibilities. She also stated that the nurse was rarely, if ever, there during the night shift. Ms Susan Bell, the occupational nurse, gave evidence that she attended the night shift only once every three to four weeks, unless there was a particular reason for her to do so.

Ms Dippert gave evidence that as time went on, she had become increasingly unable to cope with the behaviour the subject of this complaint. It began to affect her home life and she gave evidence that she was vomiting regularly and had become irritable with her children.

A significant aspect of both the first and the second respondent's cases was an argument that the events alleged could not have occurred as described by Ms Dippert because of the layout of the workplace. This was put to Ms Dippert in cross examination. She agreed that there were six worklines on the premises. Generally, the first respondent did not work on the same line as her, which meant that his regular place of work was not very close to her. However, in her evidence she stated that he moved freely around the premises and after she started to find his conduct offensive, she found herself looking out to see where he was. She also explained that there was a considerable amount of movement around the floor, as packers needed to replenish stock during the course of the shift. She explained that the system was that a person would communicate which item they were short of and it was expected that those with extra stock would respond to allow the caller to replenish their stock. Therefore, she sometimes found herself going to the line from which he regularly worked to get her stock, even though it was at the opposite end of the floor from her.

Ms Dippert indicated in her evidence that of all the events that occurred, the most significant and the one which caused her both to seek medical attention and ultimately to leave her job was the occasion on which Mr Luxford is alleged to have said "you can suck my penisaurus".

At the time this occurred, Ms Dippert was already suffering from work related stress. She was vomiting prior to going to work and on this particular night, the first respondent was placed on the same line as her and spent the evening making comments to her such as "I love you, I like black etc". When he said to her "you can suck my penisaurus" she immediately told him that she did not like him speaking to her like that. On the next occasion at the factory, she discovered that he was to be working with her again, so at that stage she spoke to the supervisor, Mr Roosevelt, and indicated that she did not want to work in proximity to the first respondent. She also sought medical advice for the first time after that incident and informed her supervisor that she had done so.

Ms Dippert also discussed the issue of sexual harassment in general terms with Mr Moelaart, the union delegate, and her evidence was that that discussion had reinforced her concerns about the consequences of complaining.

As noted above, it was at this time that Ms Dippert first sought medical attention. She was initially seen by Dr Sivaraja who referred her to a psychiatrist and suggested sedatives. She was not happy about that and consulted another general practitioner, Dr Pamela Bennett, who she saw twice.

When Ms Dippert returned to work with a medical certificate, she was told that Mr Stuart, the Managing Director of the second respondent, wanted to see her. She was with Mr Stuart for approximately 30 minutes and during that time he asked her about her sick days and her employment history. She told the Commission that she was not comfortable during the course of that interview and was reluctant to tell him the full details of what had occurred. Nevertheless, she did tell Mr Stuart of the incident involving Mr Luxford allegedly saying "you can suck my penisaurus" and also of the incident where Mr Luxford put his apron over her head.

Mr Stuart wanted to know how long these things had been happening and she told him nearly from the beginning. He asked her who she had spoken to about them and she told him the names of two fellow employees with whom she had discussed the matters, Ms Srnic and Ms Joyce. After her meeting with Mr Stuart, she went back to her line but she could not remember whether she went back to work for any further nights after that one.

Not long after the meeting with Mr Stuart, she lodged her complaint to the Sex Discrimination Commissioner and she also made an appointment to see a social worker at the Sexual Assault Clinic at Bankstown. She saw another doctor, Dr Brenda McPhee, and was referred to a specialist for her stomach ulcer and to a psychiatrist, Dr Anne Stephenson, who she saw regularly until November 1995.

At the time immediately following that episode, she was off work for a couple of weeks and she told her supervisor Mr Roosevelt that she needed time off because of stress. She had also asked her union delegate to organise a meeting with Mr Stuart. However, her evidence was that she was told that Mr Stuart would not agree to meet her with a union representative present but would only meet with her on her own and she did not agree to do that. Eventually a meeting was organised for 8 January 1995 and although she attended on that day, she was not invited into Mr Stuart's office while the meeting was taking place. He met only with the two men from the union while Ms Dippert waited outside. Ms Dippert made notes on that day and noted in them the fact that she was not permitted to attend the meeting. Those notes were tendered as exhibit C2.

Ms Dippert received payments of workers compensation up to the time of her resignation at the end of February 1995. She felt that she had no choice other than to go back to the situation of working in close proximity with the first respondent or to resign which she did from 26 February 1995. For the first few months following her resignation she told the Commission that she did not feel able to look for work as she was scared of going back into the work force because of the effect upon her of these events. Because of her child care responsibilities, she needed to find either part time day work, or night work.

Ms Dippert secured some temporary work in May 1995 doing telemarketing for four hours per day, but that company was having financial problems so she left there. While there, she found some other casual work at a company called Quick Snacks and on the second night she was there she discovered that Mr Luxford's de facto partner worked there. She saw the first respondent and discovered that part of his job was to deliver stock there. She then stopped working there. Her next employment has been in a telemarketing firm where she has been engaged since October 1995 and she is still doing that work and is paid on a commission only basis.

Ms Dippert explained that since she left Vrachnas Betabake she had felt guilt, anger, betrayal, has had trouble sleeping, trouble with her ulcer and panic attacks. She has moved house which she explained as a response to these events: she wanted to move from the area in which the first respondent lives. She has also obtained her driver's licence and that has helped her to feel more independent and mobile. She stopped seeing Dr Stephenson in November 1995.

3.3 The complainant's witnesses

The complainant called a number of witnesses who generally supported the evidence she had given. Her husband, Mr Max Dippert, confirmed her accounts of her stress around the time that these events occurred and of her concern to move house so as to distance herself from the first respondent. Mr Roosevelt, the supervisor at the time these events occurred, generally confirmed Ms Dippert's evidence that she had asked him not to let Mr Luxford work too close to her, but stated that she had not until very late in the piece told him the reason for her concern. He confirmed that there had been an incident involving a breach of trust on his part concerning an employee and he stated that he had told her, when she expressed her reservations about confiding in him, that he had learnt from that experience.

Her former workmates, Ms Srnic and Ms Joyce, both corroborated in general her evidence about Mr Luxford. Ms Srnic gave evidence in which she recounted occasions when Ms Dippert had complained to her of Mr Luxford's behaviour. She also told of incidents in which he had spoken to her, or looked at her, in ways which made her (Ms Srnic) uncomfortable. Ms Srnic's evidence corroborated that of Ms Dippert in relation to the "dream" incident: Ms Srnic stated that when Ms Dippert told her of the first respondent's remarks concerning his dream about her, she went immediately to him and put it to him. Ms Srnic's evidence was that he did not deny it, but reaffirmed to her that "it was really hot".

The other former workmate who gave evidence for Ms Dippert was Ms Joyce who confirmed that Ms Dippert had told her of these events and that she had been upset and crying on a number of occasions while Ms Joyce was driving her home from work. Ms Joyce also stated that Mr Luxford had also rolled his tongue around his lips at her and that on one occasion she had told him that she would cut it off. She also stated that he had sometimes stood very close to her, or stood directly behind her. On one occasion he had blocked her way with his stomach and she had called Margaret, the previous supervisor, who would say to him "Cliff, get away" and he would return to his workplace. Ms Joyce stated that she had advised Ms Dippert to "let it go" because otherwise the other women there would make it hard for her if she were to complain. Reports were also tendered by Ms Jacinta Bunfield, sexual assault counsellor, and Dr Anne Stephenson, psychiatrist, both of whom also gave evidence at the hearing.

3.4 The evidence of the first respondent

The first respondent effectively denied all but one of the allegations. Each individual allegation was put to him, and he denied them, other than that he admitted to saying to Ms Dippert "you're so big". His explanation for that was Ms Dippert's height: he stated that he had never before encountered such a tall woman. As noted earlier, Ms Dippert is five feet ten and a half inches tall, and is no taller than Mr Luxford.

The first respondent also stated that he had worked at Vrachnas Betabake for eleven years and he was aware of the fact that neither bad language nor bad behaviour would be tolerated in the workplace.

3.5 The evidence of the second respondent

Mr Stuart, on behalf of the second respondent, gave evidence in which he disputed the allegations of the complainant concerning the incidents she described involving the first respondent. He also gave evidence as to the procedures and processes available in the workplace to respond to allegations such as those made by Ms Dippert (and this is dealt with in more detail below).

His main argument appeared to be that the events as described could not have occurred because of the physical layout of the workplace. Mr Luxford generally worked quite a distance away from Ms Dippert so Mr Stuart did not consider it possible for the events to have taken place. He also was adamant that if they had, Ms Dippert should have complained either to her supervisor or to him directly. He explained that he had appointed a woman supervisor precisely because he felt that there might be delicate matters that his women staff would be uncomfortable discussing with a male supervisor and that if there had been a problem he would have expected Ms Dippert to complain to the female supervisor. Mr Stuart was adamant that bad language and inappropriate behaviour were not tolerated in that workplace and that this was made clear to all employees who worked there.

4. FINDINGS ON THE ALLEGATIONS

Based on the extensive evidence presented, I find that the events described by Ms Dippert did occur. I found her to be a coherent and credible witness whose evidence did not waver under cross-examination in any significant respect. This is in marked contrast to the evidence of the first respondent whose blanket denials of the allegations were less than convincing.

Specifically, I accept that on a number of occasions Mr Luxford made comments to Ms Dippert such as "I love you"; "you're so big" and "I like black". I do not consider it necessary to make a finding as to the frequency of those statements, save to say that they were clearly made on a repeated basis over the period of Ms Dippert's employment with Vrachnas Betabake.

I also accept that on a number of unspecified dates, the first respondent engaged in conduct involving the lifting of his apron in a suggestive manner; that he gestured to the complainant with chocolate eclairs; that he blocked her access to force her to squeeze past him; and that he made gestures toward her rolling his tongue around his lips. Aside from his blanket denials of the allegations, there was no other persuasive evidence to the contrary, save evidence of a general nature to the effect that the constraints of the work environment made it difficult for staff to engage in conduct not part of their employment duties. Mr Stuart, who put that position most strongly in his evidence, nonetheless conceded in cross examination that it was possible for the events described by Ms Dippert to have occurred in that workplace (see transcript, at 219).

I find also that the specific allegations of individual acts are established. That is, I find that the first respondent did on one occasion place his apron over the head of the complainant bringing his groin into close proximity with her; that he told her on one occasion that he would like to have a baby with her; that he told her that he had dreamt of having "hot, sweaty sex" with her while she was away sick; and that he said to her in November 1994 "you can suck my penisaurus".

I also accept that the complainant's failure to raise the matter earlier with her supervisor and/or with Mr Stuart was not unreasonable. In her evidence, and in that of the other women, it was established that they did not see Ms Terry Plumridge, the female supervisor, as someone to whom they could turn. And the male supervisor, Mr Roosevelt, conceded in evidence that he had recently breached the confidence of another employee and that was known to others in that workplace. Her explanation for not discussing the matters with the occupational nurse is also persuasive given the infrequency with which the nurse attended and also Ms Dippert's assumption that her concerns were not the province of the occupational nurse as she did not view them as a "medical problem". The reasonableness of her failure to complain earlier is reinforced by the evidence of her workmates, Ms Srnic and Ms Joyce, who described a climate hostile to "dobbers" and where remarks of the kind made by the first respondent were generally tolerated.

4.1 Sexual harassment

It was argued by counsel for the complainant that the events that occurred were unlawful under the Sex Discrimination Act, either because they constituted sexual harassment within the meaning of ss28A and 28B, or because they constituted sex discrimination under s14. There was considerable argument about the applicability of s14, and about the relationship of s105 which imposes liability on those who cause, permit etc an act which constitutes sex discrimination. In view of my findings on ss28A and 28B, I do not consider it necessary to explore this issue at any length, except to note that it has been held that sexual harassment can constitute sex discrimination under s14 (see Bennett v Everitt (1988) EOC 92-244).

Section 28A defines sexual harassment as the making of an unwelcome sexual advance (s28A(1)(a)) or the engagement in `unwelcome conduct of a sexual nature' 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. By s28A(2), conduct of a sexual nature is defined to include `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'.

4.2 Liability of the first respondent

I find that the first respondent engaged in unwelcome conduct of a sexual nature in circumstances in which a reasonable person would have anticipated that the person harassed would be offended, humiliated or intimidated.

It was submitted on behalf of the first respondent that the conduct engaged in by Mr Luxford was not conduct of a sexual nature. For example, it was argued that to say to someone "I'd like to have a baby with you" is not a comment of a sexual nature and could be said "without giving the concept of sexual intercourse the slightest thought". I find much more persuasive the arguments of the complainant in this regard. She exhorted the Commission to consider the statements, not in the abstract, but in the context in which they occurred, that is, in the context of a work environment.

I find that, taken together, the comments, including those made on a regular basis which were described as "low level" comments, constitute unwelcome conduct of a sexual nature in circumstances in which a reasonable person would have anticipated that the person harassed would be offended, humiliated or intimidated. While it may be possible to argue that of itself, considered in the abstract, a comment such as "I like black" may not constitute conduct of a sexual nature, it is more appropriate to consider the comments as part of a course of conduct all of which was directed at Ms Dippert and conveyed to her a sexual connotation in circumstances where a reasonable person would have anticipated that she would be offended, humiliated or intimidated.

I find that she did make it known to Mr Luxford that his conduct was unwelcome to her. If he was unaware of the fact that his behaviour was unwelcome, and did not anticipate that Ms Dippert would be offended, humiliated or intimidated by his conduct, I find that his response was not reasonable. The fact that behaviour of a similar kind, in particular the "low level" behaviour in which he engaged, was well known in the workplace and tolerated by others does not detract from the fact that taken as part of a course of conduct directed at Ms Dippert it constituted unwelcome conduct of a sexual nature.

I have no hesitation in finding that the comments about the dream, the placing of the apron over Ms Dippert's head, the comment about wanting to have a baby with her, and the comment "you can suck my penisaurus", all constitute unwelcome conduct of a sexual nature and therefore constitute sexual harassment. Section 28B(2) makes it unlawful for an employee to sexually harass a fellow employee and I find that the first respondent breached section 28B(2).

4.3 Liability of the second respondent

As noted above, I do not intend to consider any possible liability under s14, having found that the conduct of the first respondent constituted sexual harassment under s28A and s28B. Accordingly, any liability of the second respondent arises by virtue of s106 which provides that where an employee does an unlawful act under, inter alia, ss28A and 28B, the employer is liable vicariously. However, by sub section 106(2), an employer will not be liable if it is established that the person took all reasonable steps to prevent the employee from doing the relevant acts.

Accordingly, it becomes necessary to consider the actions of Mr Stuart and of those otherwise entrusted with the responsibility for the management and supervision of that workplace. There are a number of issues to consider in this regard. These include: the steps taken to provide a harassment free work environment at this particular workplace; the nature of the company's policies, if any, on sexual harassment and the information and training provided to staff on these issues; the degree of actual supervision of the floor of the workplace; the structures put in place for making and dealing with complaints about sexual harassment; and the actions taken by Mr Stuart once he became apprised of the allegations and the general culture of the workplace.

4.3.1 The steps taken to provide a harassment free environment

Mr Stuart gave evidence to the effect that it was well known in the Vrachnas Betabake workplace that offensive behaviour was not acceptable. He explained that from time to time (apparently, this occurred each time a new supervisor was appointed), the staff were gathered together and reminded that no unseemly behaviour was tolerated. In "unseemly behaviour" he included the prohibition of suggestive books, photographs or materials and he expressly noted that bad language was never allowed. Mr Luxford in his evidence also indicated that he was aware of this policy and that he knew that bad language was not tolerated. Neither Mr Stuart nor Mr Luxford elaborated on their understanding of "bad language" and the Commission notes that in his evidence Mr Luxford referred to lifting his apron when he had "shit" in his eye (at 169) or "crap" in his eye (at 173) and said that the business of the workplace meant that "you haven't got time to buggerise around" (at 170).

Mr Stuart was asked by the Commission whether the company had a sexual harassment policy independent of the dispute resolution procedures set out in the award and he indicated that it did not have any written policy because a number of people did not speak English and even those that can do not read things on notice boards. However, he said that there is a sexual harassment policy and has been for twenty five years and he personally delivers lectures on it. The Commission concluded from that response that by that Mr Stuart was referring to his occasional talks about behaviour in the workplace rather than to any specific discussion of sexual harassment as a workplace issue. No evidence was given of any training programs for staff specifically dealing with sexual harassment, nor of any general education on the issue.

As for the supervision arrangements, Mr Stuart indicated that he had been the supervisor at the time these events are alleged to have started occurring. Later, he appointed a woman supervisor specifically to assist women staff who had problems that they did not wish to discuss with the male supervisor. However, Ms Dippert and her workmates who gave evidence indicated their lack of trust in that woman who had taken over from a long serving woman employee in July 1994, shortly after Ms Dippert commenced employment. From the time Ms Dippert started with the company until some time in August 1994, Mr Stuart had been supervising the night shift, prior to the appointment of Mr Roosevelt who remained the supervisor until Ms Dippert's resignation. Mr Stuart suggested that he was unaware of any of the concerns raised by Ms Dippert in her complaint. However, this is inconsistent with the evidence of Ms Dippert's workmates to the effect that `everyone knew what Cliff was like' and that they were expected to laugh it off.

The Commission concludes that while Mr Stuart clearly had a commitment to providing a workplace free of offensive behaviour, he had no specific policies or practices addressing sexual harassment. His repeated references to having had the same policy for twenty five years confirms that sexual harassment, which has been the subject of federal legislation only since 1984, was not expressly contemplated within the policy he had developed. While there is no legal requirement under the Act that in order to establish a defence under s106(2) there must be a sexual harassment policy as such, the existence of such a policy would go some way toward demonstrating that the second respondent had perceived the issue as a relevant work place problem and had taken steps toward addressing that problem.

The evidence clearly establishes that a certain amount of banter and to-ing and fro-ing about the workplace was regularly engaged in and tolerated, despite efforts on the part of both the first and second respondents to establish that the workload precluded any possibility of personal interactions. As noted above, Mr Stuart eventually conceded that notwithstanding the layout of the workplace, which he had relied upon as evidence that the events could not have occurred, it was possible for all of the conduct claimed by Ms Dippert to have taken place.

Significantly, one of the second respondent's witnesses, Dr Nathar, the psychiatrist who was engaged by the second respondent to examine Ms Dippert in relation to her workers' compensation claim and in relation to this complaint, commented in his first report (the workers' compensation report to the insurer dated 6 April 1995) as follows:

"I read with interest the documents you sent for perusal and wish to make a few comments.

Firstly, there was a variety of evidence there that the claimant and all other female workers there were subjected to suggestive remarks by Cliff Luxford which were of a sexual nature. Cliff Luxford being a simple person had also been confirmed in the information you sent me.

Secondly, it appears that Cliff Luxford had been a trusted employee of the company for 13 years and that other people had been able to deal with him and have not taken offence to any of his remarks. ... (Exhibit C8, at p. 4)."

Perhaps most significant to the issue of whether the second respondent had taken all reasonable steps to prevent the conduct is the evidence concerning what Mr Stuart actually did when he was finally made directly aware of the situation. Ms Dippert had been called to his office after taking leave following the "penisaurus" incident and Mr Stuart was concerned about her frequent absences and wanted to discuss it with her. On that occasion she told him the gist of what had happened, though her evidence is that she did not go into full details as she felt uncomfortable in his office without someone there to support her. His evidence was to the effect that at the time he had "no reason to doubt at all that what she said wasn't 100% true". He said: "I knew Cliff, I knew he could do childish things and I went down to get Cliff by the ear and drag him to one side and have a talk with him". However, in his evidence he explained that when he got to the work floor, he realised that Mr Luxford and Ms Dippert worked on different lines. At that stage, he decided not to pursue his original plan with regard to Mr Luxford and to investigate further. He stated that some days later, at Mr Luxford's request, he held a meeting with Mr Luxford to which he invited the two workmates to whom Ms Dippert had spoken (Ms Srnic attended, Ms Joyce was on leave at the time), both the male supervisor (Mr Roosevelt) and the female supervisor (Ms Plumridge) and the union delegate (Mr Moelaart). As he stated in his evidence: "Everyone denied any knowledge of a problem between Cliff and Lorelle". In his view there was nothing further to be done.

Later, after Ms Dippert remained absent, he stated that the company had tried to contact her with a view to her completing formalities in respect of the workers compensation claim, but she had changed her phone number and it was not until he heard from the union delegate on 19 December 1994 that Ms Dippert wanted a meeting with him that he heard from her again. Apparently, she had informed her supervisor of that change more than once, but no action had been taken to change company records.

Mr Stuart responded to the union delegate by informing him that there was no dispute, and if there were a dispute, they should follow the dispute procedures. Eventually, however, he agreed to a meeting requested by the union secretary and met with the secretary and the union organiser. His evidence was that he was not aware that Ms Dippert was coming or wanted to attend and he was surprised to see her sitting outside his office. He stated that the union people told him that Ms Dippert would not return unless Mr Luxford was sacked, but he later agreed that he was aware that she was prepared to return if he was moved to another shift.

I have explored these matters at some length as they lead me to conclude that the second respondent is unable to show that it took all reasonable steps to prevent the conduct occurring. Not only is there evidence to suggest that at least some aspects of Mr Luxford's conduct of a sexual nature were well known and that it was assumed that they would be laughed off, but Mr Stuart's evidence establishes that in the event that a complaint was made, the procedures for investigating any such complaint were inadequate. Much was made of Ms Dippert's failure to complain at an earlier stage, and of the open door policy that Mr Stuart had, yet when the matters were finally brought to his direct attention, his manner of investigating and responding to them was not appropriate to the proper resolution of such a dispute. In particular, the holding of a meeting at the request of the respondent in the presence of union members and other employees (but in the absence of the complainant) contrasts significantly with Mr Stuart's refusal to meet Ms Dippert with her union delegates. His explanation for that refusal was that there was no dispute. His decision on whether or not there was a dispute seems to have been based solely on his own conclusion that the events alleged could not have occurred in the physical environment of that workplace, a conclusion he resiled from in evidence.

In summary, I find that the second respondent did not take all reasonable steps to prevent the unlawful conduct of the first respondent from occurring. The evidence upon which this finding is based is the failure of the second respondent to have any explicit policies in place concerning sexual harassment; the absence of an appropriate mechanism for dealing with complaints of sexual harassment; the peremptory nature in which Mr Stuart concluded that the allegations could not have been true given the design and layout of the workplace; and the conduct he took following his drawing that conclusion. All of this has to be placed into a context where the evidence (including that from the second respondent's own medical witness) establishes that it was well known in that workplace that Mr Luxford engaged in behaviour of the kind the subject of these allegations.

Having found both the first respondent and the second respondent liable, I turn now to consider the question of relief.

5. RELIEF

5.1 Damages

I set out earlier the terms of s81 of the Act which provides for the orders available to the Commission. I note that the complainant sought no relief other than by way of an award for compensation under s81(1)(b)(iv).

The most authoritative approach to the assessment of monetary damages under the Sex Discrimination Act 1984 is the discussion by the members of the Full Federal Court in its decision in Hall, Oliver and Reid v Sheiban [1989] FCA 72; (1989) 85 ALR 503. Lockhart J noted that, in general, the clearest analogy was to the assessment of damages in tort for personal injury (at 522). Wilcox J noted the difficulty of assessing damages for non-economic loss but stressed that any such difficulty should not be relied upon to deny damages to compensate for such losses where appropriate. He adopted, with approval, the view of the English Court of Appeal in Alexander v Home Office [1988] 1 WLR 968 at 975 that the objective of an award of damages in a discrimination case is restitution. By contrast, French J suggested that "the measure of damages was to be found, not in the law of tort, but in the words of the statute which require no more to attract the exercise of the Commission's discretion than that the loss or damage be "by reason of" the conduct complained of" (at 569). He referred to a number of decisions in which the view had been taken that the breach of anti-discrimination legislation was a species of tort and noted that whether that view is strictly correct or not, "the measure of damages is to be governed by the statute and the rules applicable in tort can be of no avail if they conflict with it" (at 570).

There is nothing in s81 which would suggest that the general approach of assessment in tort law is in conflict with that section and I propose to consider the assessment by analogy with tort principle.

5.2 Economic loss

The complainant has sought damages for the full amount of her gross wages from the date she left her employment to the date of the hearing, offset by what she actually earned in paid employment and received in payments of workers compensation. This raises two issues: first, whether the amount paid should be a gross or net (after tax) amount, and, secondly, the duration and extent of any loss of earnings or earning capacity that is to be awarded. I shall deal with those in turn.

5.2.1 Gross or net wages?

As noted, the damages sought have been calculated as a gross, rather than net (after tax), amount. However, it seems clear that authority supports the view that where an amount is awarded for loss of earning capacity, the amount is assessed by reference to the amount that the recipient would have received after payments of income taxation. This is the case both with regard to future and to past loss (see Cullen v Trappell [1980] HCA 10; (1980) 146 CLR 1). I agree with Commissioner Keim's analysis in Dobrovsak v AR Jamieson Investments Pty Ltd H95/106 (15 December 1995) that when an award is being made in respect of past wage lost, what is actually being compensated for is the lost opportunity to earn, rather than the lost wages themselves. This is also consistent with the view taken by Commissioner T Worthington QC in Watkins v Fryer (1995) EOC 92-667.

5.2.2 The period and magnitude of the loss of earnings

As noted earlier, the complainant has claimed damages to the date of the hearing, based on the full loss of earnings calculated by reference to her earnings at Vrachnas Betabake, minus any actual receipts. The second respondent disputes this calculation of the period, arguing that it is not the relevant time in which any loss she suffered by reason of the harassment affected her.

The main evidence supporting any finding I might make on the duration of a loss of earnings or earning capacity attributable to the unlawful behaviour of the respondents is that of the complainant herself, and of her treating psychiatrist, Dr Stephenson. The complainant outlined in her evidence in chief that since she left her job, her opportunities to earn had been constrained by her emotional response to the harassment. Specifically, she said that she had felt "degraded, little, betrayed and had experienced guilt and anger, had trouble sleeping and trouble with an ulcer". She was also experiencing panic attacks. Since having moved house (which she explained was, inter alia, so as to be further away from Mr Luxford and not have to encounter him or live in apprehension of doing so), and having secured her driver's licence, she explained that she was feeling better and stated in her evidence that she had been fine "for the past couple of months" (transcript, at 38). She did, however, indicate that she would no longer do night work.

Dr Stephenson gave evidence during the course of the hearing and two written reports by her were tendered as exhibits. The first report, dated 24 April 1995, noted that Ms Dippert did not believe that she could go back to work in the same situation given the effect it had had on her. It concludes that she presented with "depression and anxiety with hyperventilation reactive to her work situation at Vrachnas Betabake where she had been employed since 23 May 1994 and where she was exposed to coarse sexual suggestion, innuendo and provocation, and was treated lightly by her fellow employees, whilst superiors failed to intervene."

In her second report, dated 27 November 1995, Dr Stephenson suggested that "there is (sic) sufficient symptoms to meet a criteria of Post Traumatic Stress Reaction with regard to the symptoms experienced by Mrs Dippert in reaction to the events she experienced between April and December 1994 during the course of her work with Vrachnas Betabake". She also noted that Ms Dippert has "continued to feel irritable, have difficulty and experienced hyperventilation, symptoms she had not experienced previously". Dr Stephenson was challenged under cross examination with respect to her diagnosis of Post Traumatic Stress Reaction and while she conceded that Ms Dippert's responses may not fully meet all the diagnostic criteria specified in DSM309.18, she commented that there are "certainly many features of PTSD in the clinical situation that are observable with regard to Mrs Dippert" (at 125).

Evidence was also given by Dr Nathar to the effect that Ms Dippert had suffered from an "adjustment disorder with anxiety symptoms in the setting that she claimed was due to sexual harassment. ... [I]t is my opinion that Mrs Dippert has a sensitive personality and has not been able to deal with her relationship with a fellow employee, Cliff". Dr Nathar concluded that the reaction she experienced "to Cliff's comments in November, 1994 have arisen as a result of problems within herself". He went on to describe "a difficulty establishing long term interpersonal relationships and the unstable nature of her relationship in early 1994" which in his view "would have caused a lot of stress and anxiety". He also noted financial problems as a possible source of her anxiety.

During the course of Dr Nathar's evidence to the Commission, he agreed that he had seen Ms Dippert only once, and only for the purpose of examining her in relation to workers compensation and these proceedings. On average, he generally spends some 35-40 minutes with a person he examined on a one-off basis, and there was no indication from his records that he had spent any longer with Ms Dippert. He also agreed that if the events alleged had occurred (and it was explained to him that his view on this was sought hypothetically, those matters still being in dispute at that stage), "those incidents combined together would have been a cause of stress". To the extent of any inconsistency between the evidence of Dr Nathar and that of Dr Stephenson, I prefer the evidence of Dr Stephenson given that she was Ms Dippert's treating doctor during the period immediately after Ms Dippert left her employment to November 1995, whereas Dr Nathar met with her only once, and only for the purpose of writing a report for the insurers.

I conclude therefore that, in view of the findings I have made earlier about the harassment perpetrated by Mr Luxford, Ms Dippert's inability to continue to work at that workplace is causally connected to the harassment. While there was considerable discussion about whether the situation amounted to a constructive dismissal, I do not consider it necessary to make a decision on that, other than to conclude that it was not unreasonable for Ms Dippert to leave her employment in February 1995 after a short period on workers compensation payments and not to consider resuming employment with that employer.

I also conclude that Ms Dippert's own evidence supports a finding that the effects of the workplace harassment upon her did not persist beyond November 1995 (I am referring here to the fact that she discontinued her treatment with Dr Stephenson at that time, and gave evidence in January 1996 that she had been fine "for the past couple of months").

What remains uncertain is the extent to which Ms Dippert's capacity to engage in paid employment at some other workplace was impaired by the unlawful conduct of the respondents.

The evidence suggests that Ms Dippert resumed paid employment some time in May 1995, though she was able to secure only very part time work at that time. Certainly, the part time work she undertook was nowhere near as lucrative as her night shift work and she has maintained that as a result of these events, she "steer[s] clear now completely of night-shift work". Leaving her employment at Vrachnas Betabake, a job she enjoyed and which suited her in view of her parenting responsibilities, has deprived her of the opportunity to engage in the more lucrative night shift work and to that extent, subject to the availability of other day work, she has suffered economic loss.

The evidence suggests that Ms Dippert was fit for at least part time employment from May 1995 and, aside from constraints as to her capacity to undertake night work, was generally fit for work from some time around November 1995. It was submitted that her gross wage at Vrachnas Betabake was in the vicinity of $600 per week and that she should be awarded damages to the date of the hearing. In view of my findings as to the actual period during which she was either fully or partially unable to engage in paid work, of the need to assess her loss of earning capacity by reference to the actual (after tax) amounts she would have earned had she continued at Vrachnas Betabake, and the lack of verified information as to actual earnings, I find it necessary to make an estimate in respect of loss of earning capacity.

For the period during which she received workers compensation, Ms Dippert is clearly entitled to the difference between what she would have earned and what she in fact earned. I have received only an estimate of earnings and I note that while objection was taken to the lack of detail provided by the complainant, the second respondent was best placed to provide information as to actual earnings and workers compensation payments and failed to do so. It was submitted that for a period of ten weeks, Ms Dippert received $300 per week in workers compensation payments, rather than the $600 (gross) per week she would otherwise have earned. Making allowance for payments of taxation, which in view of the lack of detail must also be estimated, I allow $2000 for the wage loss during the period on workers' compensation.

There remains to consider the period 27 February 1995 to the time of the hearing. As I noted, Ms Dippert's own evidence suggests that the effects of the harassment had significantly diminished by the time in November 1995 when she ceased her medical treatment and, except for an ongoing limitation on her ability to undertake more lucrative night work, no other continuing economic loss is supported by the evidence. Taking into account the limited amount of part time work she was able to find and the effects on her of the harassment, I find that she suffered a complete loss of earning capacity until approximately the end of April 1995, and thereafter a partial loss of earning capacity to the end of November 1995. Based on the estimate of wages provided, and my calculation of the period in issue, I find that for the period March to November 1995 inclusive, a sum of $12,000 represents Ms Dippert's loss of earning capacity, which added to the $2,000 I have indicated for the period on workers' compensation comes to $14,000. I note also that the details of medical expenses and disbursements provided in the revised estimate of loss were not the subject of challenge and these amount to $1508.

5.3 Non economic loss

Section 81(4) provides: "The damage referred to in paragraph (1) (b) includes injury to the complainant's feelings or humiliation suffered by the complainant", thereby making it clear that damages for non economic loss of that nature may be awarded under the Act.

The purpose of an award of non economic loss is to compensate for the less tangible aspects of the injury: the hurt, humiliation, pain and suffering caused by the harassment. There is considerable evidence from the complainant, her husband, Ms Bunfield, Dr Stephenson, and Dr Nathar (whose evidence does not contradict that of the complainant in the description of her injury, but merely suggests a different cause for her reaction) indicating the effect that the harassment had on Ms Dippert and I do not need to review that evidence. Similarly, the evidence of her two workmates, Ms Joyce and Ms Srnic, indicates that her stress and anxiety were manifest prior to her leaving the job and that going to work caused her much distress as a result of the harassment she was experiencing there. The hearing itself may also add to the injury to the complainant's feelings or to her humiliation and I note that Ms Dippert was subjected to considerable cross examination about matters totally removed from the workplace issues the subject of this complaint.

For these reasons, I consider that, having regard to previous awards of the Commission in comparable cases, an appropriate amount to award Ms Dippert for non economic loss, in particular, for pain and suffering, injury to feelings and humiliation, is $9,000.

One final point warrants discussion. It was suggested by the respondent (and certainly by Dr Nathar's reports) that Ms Dippert's acknowledged anxiety was exacerbated by events in her own life unrelated to the harassment. In effect, it was argued that since others in the workplace had put up with similar behaviour, Ms Dippert's reaction to the harassment was not reasonable. An approach to the assessment of damages which substitutes the reactions of a hypothetical person with a different personal life to that of the complainant is erroneous as the Full Federal Court pointed out in Hall, Oliver and Reid v Sheiban. In that case, Lockhart J rejected a similar argument and commented: "Once the applicant's account of her reaction is accepted, ... then damages fall to be assessed having regard to that reaction and not to the reaction which the majority of women might have had in similar circumstances" ((1989) [1989] FCA 72; 85 ALR 503 at 526).

6. CONCLUSION

For the reasons set out above, I find the complaint substantiated. I declare that the first respondent, Mr Clifford Luxford, engaged in conduct rendered unlawful under the Sex Discrimination Act 1984 and that the second respondent, Vrachnas Betabake Pty Ltd, having failed to take all reasonable steps to prevent such conduct, is also liable.

I declare that the first and second respondents should pay to the complainant the sum of $24,508 of which $14,000 relates to past loss of earnings, $1508 to special damages relating to treatment costs and disbursements, and the remainder is made up of damages for non economic loss.

At the commencement of the hearing, I made a suppression order prohibiting publication of the names of parties or witnesses and of any photographs of them. The decision having been handed down, I now remove that order.

Dated this 18 th day of July 1996.

Regina Graycar

Inquiry Commissioner