Tenuyl v Delaney & Calcium Nominees Pty Ltd [1996] HREOCA 9 (13 May 1996)

Human Rights and Equal Opportunity Commission

Sex Discrimination Act 1984 (Cth)

No: H95/48

Between :

SANCHA TENUYL

Complainant

and

HAYDEN DELANEY

First Respondent

and

CALCIUM NOMINEES PTY LTD

Second Respondent

Reasons for Decision

of Commissioner R.G. Atkinson and Commissioner M. Kalantzis

Date of Decision: 13 May 1996

Place of Hearing: Townsville

Date of Hearing: 3-4 October 1995

Appearances: G.T. Riethmuller instructed by Townsville Community Legal Centre Inc. for the complainant

M. Donnelly instructed by Bevan and Griffin for the respondents

1. INTRODUCTION

By a letter from her solicitors dated 17 August 1993 the complainant, Ms Sancha Tenuyl, made a complaint to the Cairns Regional Director of the Human Rights and Equal Opportunity Commission, as delegate of the Sex Discrimination Commissioner. Ms Tenuyl alleged that she had been sexually harassed by the first respondent, Mr Hayden Delaney, who at the time was the proprietor of Delaney's Cafe, owned by the second respondent Calcium Nominees Pty Ltd ("Calcium Nominees").

Following an investigation and an unsuccessful attempt at conciliation, the Sex Discrimination Commissioner referred the complaint for an inquiry by the Human Rights and Equal Opportunity Commission under section 57(1)(b) of the Sex Discrimination Act 1984 (Cth).

2. THE EVIDENCE

At the time of the hearing of this matter, Sancha Tenuyl was 18 years old. Until the end of 1994 she was a student at Kirwan High School in Townsville. She now works as a child care assistant and has two part time jobs, one as a kitchen hand and one delivering pizzas.

While Ms Tenuyl was in Grade 11 at school she worked in a cafe called Delaney's Cafe, owned by Calcium Nominees and operated by Mr Delaney. She worked at the cafe between May 1992 and late July or early August 1993. When she started working there she was only 15 years old. She worked on Thursday and Friday nights and during lunch hours in the school holiday periods. Her work at the cafe involved making drinks and preparing fast food for customers.

Her evidence was that during the first month she found that the "work went OK". She said that if she made a mistake, Mr Delaney would point it out but he never yelled at her. She said that she gradually began to relax and she found it easier to talk to Mr Delaney. She says he invited her to call him "Bluey" and she found that she could talk to him about personal matters. She said because he was older he knew about matters that friends of her own age did not. Over the following months they became quite good friends. She said she learnt in the course of conversation with him that he was 53 years old. His evidence was that he was born on 4 October 1938.

One night towards the end of 1992 she talked to him about a personal matter where a male friend of hers from school had asked her girlfriend to go out with him and that she felt hurt about it. This occurred after she and three friends had skipped school for the afternoon. She said that during the ensuing weeks and months, the conversation between them became more personal. She remembers his telling her that he had a dream that she went with him to an island (like Dunk Island) and they had lunch and he flew her back. He often told her that if he won the lottery they would become lovers.

In about January 1993, Mr Delaney gave her a hug once or twice when she was upset about things in her personal life like a fight with her parents or when her grandfather died. She said that at this time Mr Delaney started to count down the weeks to her sixteenth birthday. She recalls that about 10 or 12 weeks before her birthday, which was on 7 March, Mr Delaney said to her things such as "10 weeks until you're the legal age". She said at first she didn't take this seriously and would think a reply in her own mind like "you wish". But she never said anything like this out loud because she didn't want to lose her job. As she put it "I never answered Bluey back when he said these things to me. I didn't want to upset Bluey and lose my job".

She said as the weeks got closer to her birthday she became more worried about how to deal with him after her sixteenth birthday. She says that it was about this same time that he started to drive her home after they shut up shop. Mr Delaney admits that he did comment about her forthcoming birthday.

On the next work day at the cafe after her birthday, Mr Delaney gave her a present of a cassette. When he gave her the present he kissed her.

Mr Delaney said that he did not think the jokes he told her would be offensive to her. He admitted to being "a man who flirts" but attempted to downplay it by saying he winked at people but not in such a way as to indicate a sexual interest. Mr Delaney in cross-examination said that there was nothing sexual about his definition of flirting but said he would only flirt with women as he was "definitely heterosexual".

Ms Tenuyl says about two weeks after her birthday she recalls Mr Delaney gave her pay to her by placing the money in the pockets of her pants. She said she normally wore knee length shorts or jeans with bike pants underneath but she remembers one night, when the pants she had on had no pockets, Mr Delaney put the money up the side of her bike pants. She said that after that she made sure that she wore pants that had pockets.

In the weeks that followed, Mr Delaney continued to put her pay into the pockets of her pants. She said that when he put the money in her pockets he would feel around her thighs with his hands still in her pockets. She said on these occasions he would put both hands in her pockets, one hand placing a five dollar note in one pocket and with his other hand he put ten dollars in her other pocket. She said that she would just "shut off" when this happened and keep doing her work. She said that this usually happened at the end of the night and they closed up shop and there was no one else in the cafe. Usually she was at the sink cleaning the pizza boards.

She said that on occasions Mr Delaney would feel around her crotch and thighs and but on other occasions when he was putting the money in her pockets he would also touch her breasts. She tried to ignore him believing, "I thought that if I ignored him, the behaviour would stop. I thought that if I responded in any way, it would encourage him and I didn't want that". She said that on those occasions Mr Delaney said to her, "even though your mind is not responding, your body is".

She said that Mr Delaney asked her if he had embarrassed her and she replied "yes". Mr Delaney told her that she shouldn't be embarrassed by her body and that he was trying to teach her to enjoy her body and get over the shyness of her body. She said that she was not convinced that he was at all concerned about her shyness of her body because what he was doing to her made her feel more shy and embarrassed about her body.

She said that one night his touching her really got bad. He was feeling around her breasts under her crop top and pulled her away from the sink and told her to relax. He turned her around and placed one hand under her crop top and onto her right breast. He kneeled down in front of her and kissed her on the right breast. The kiss lasted about 30 seconds or more. Again he asked her if this embarrassed her and she told him that it did. He then stood up and kissed her on the lips holding on to her by the shoulder and she felt him push his tongue into her mouth while he kissed her. She says, "I found this disgusting. I felt revolted and tried to push him away but he was holding on to me tight". She said she could also feel his erect penis under his clothing pushing against her. He said in evidence he had not had an erection for about four years because of a prostate problem. However he led no medical evidence to support his claim and we do not accept it. He told the psychologist who interviewed him for this case that he had not had an erection for two years. If this is so, he was still capable of having an erection at the time Ms Tenuyl alleges the sexual harassment took place.

Ms Tenuyl went home the night of that incident feeling quite upset. She rang her best friend Mr Jamie Hill and he came over and they talked for a long time. He told her to quit the job. She said she could not quit because she needed the money to pay of the cost of a video recorder that she had agreed to lease with her father. Her father has been on workers' compensation or an invalid pension since 1974 and the family didn't have a lot of money. She didn't want to tell her father that she couldn't keep the payments up or why she had to give up her work. Mr Te Nuijl confirmed in his evidence that the family's video recorder broke down when his daughter worked at Delaney's Cafe and they were not going to replace it. However, Ms Tenuyl suggested that she could contribute to the hiring costs for the video as she was working. Mr Te Nuijl said that he then hired a video recorder from Radio Rentals to be used by the family and his daughter agreed to repay him for half of the hiring costs. She arranged to pay a set amount each week until the debt was repaid in full.

Mr Hill and Ms Tenuyl were great friends while they were both at Kirwan High School. Mr Hill confirms that Ms Tenuyl telephoned him crying and very upset and told him that her boss (Mr Delaney) had kissed her on the mouth and on her breast. She told him that he had been "coming on to her" and putting her pays in her pocket and feeling around her thighs. She said to Mr Hill that Mr Delaney had joked that they would become lovers and how he had counted down to her sixteenth birthday.

Mr Hill stated that after that time Ms Tenuyl told him every week about the things that her boss was doing to her. He encouraged her to quit her job but she was scared of telling her family about what was happening. He said that she cried a lot and said repeatedly that she felt like a slut and cheap and dirty. She didn't know what to do and had no one to turn to except him. Mr Hill said he often went to her work late on a Friday night to make sure everything was OK. Ms Tenuyl said in cross examination that as well as contributing to the cost of the video recorder, she stayed in her job because she was scared and she felt alone and ashamed.

Ms Tenuyl said in her evidence that Mr Delaney's behaviour persisted - that he kept feeling her around the breasts and around the crotch and kissing her on the back of her neck. She says that on one or two more occasions he kissed her on the breast as well but he didn't try to "tongue kiss" her again until the middle of July 1993.

Ms Tenuyl said that on 16 July 1993 Mr Delaney tried to put his hand up the right hand leg of her shorts. She was wearing bike pants under her shorts and he could not get his hand into her pants properly. This occurred while she was standing at the sink after closing time as had happened many times before. She said that when he could not get his hands into her pants he started feeling her breasts. Then he stopped and she thought he would leave her alone but instead he moved up behind her and held her with his left hand over her shoulder and onto her left breast. She said he placed his right hand into the top of her pants and she felt his fingers move into her vagina. She said she could feel at least two of his fingers in her vagina.

She kept scrubbing the pizza board and tried to move away to each side trying to pull away from him holding her. She said he kept his hands moving in the same places and held her tight against him. Again she felt his erection under his clothes and noticed that he was breathing heavily and more rapidly.

He asked her why that behaviour had embarrassed her and told her that he liked her and that he wanted her and that he hoped that she liked him. She said, "at this stage I switched off". She said that she was purposely singing some songs to herself in her mind trying to ignore him and hoping he would leave her alone. After work he drove her home and as she was leaving the car he put his hand on her thigh and told her to think about what he had said to her and to tell him what she thought about it on the next night she worked at the cafe. She says that she couldn't recall what he had said to her because she had, to use her words, switched off.

When she went inside the house, she was upset but tried to play Scrabble with her brother. Mr Hill came over and eventually they had a disagreement because she was upset and she went to bed without saying anything to anyone.

Mr Hill says that one evening she told him about the last incident that she said had occurred - when Mr Delaney felt her breast again and he "inserted his fingers inside of her". Mr Hill says she was in more of a mess than normal. She never went back to work after that and that was when she talked to the chaplain of Kirwan High School and did something about what had been happening to her.

Mr Wayne Benn is the chaplain at Kirwan High School. He has a Bachelor of Arts from James Cook University and has undertaken numerous training courses in counselling. He is not an experienced counsellor and his evidence is useful as to what occurred rather than as an expert witness.

On or about Monday, 19 July 1993, Ms Tenuyl went to school and about 3.45pm she went to see the councillor at the school, Mr Benn. She talked to Mr Benn as though she had a friend that needed advice about how to deal with Mr Delaney. She also saw Mr Benn about the problem the next day on Tuesday 20 July 1993 when she told him the problem with Mr Delaney was her own problem.

Mr Benn says that on or about 19 July 1993, Ms Tenuyl approached him and wanted to know if he had a counselling role. When he explained that he did, she made an appointment to see him after lunch at 1.30pm on Tuesday 20 July 1993. He says that she attended that session and during the session she explained to him a situation involving a (supposed) friend of hers that had been sexually abused by her boss at the place of her part time employment. Mr Benn says that the depth of emotion that Ms Tenuyl displayed as she recounted these matters led him to believe that she was talking about herself rather than a friend. He asked her if his suspicions were true and she said "yes".

Mr Benn says that he was able to convince Ms Tenuyl to inform her parents of what had happened and where it was heading.

That night Ms Tenuyl talked to her mother about the problem and she told her father.

Mr and Mrs Te Nuijl said that one evening Sancha came to her mother and asked her to speak to Mr Benn at the school. Eventually Ms Tenuyl told her mother what had happened. She said that it took a while for her daughter to say what was really going on but when she did finally tell her mother she just broke down sobbing. Mrs Te Nuijl says, "I don't ever want to see my child in that much pain again."

Ms Tenuyl then went back to the councillor Mr Benn on Thursday 22 July 1993. She says that her parents and her friend Mr Hill came with her. Mr Benn cannot remember Mr Hill being there but this is not an important matter. Mr Benn put Ms Tenuyl and her parents into contact with the Townsville Community Legal Service. She saw them on 5 August 1993 and made a long statement about what had occurred to her. This statement was sent to the Human Rights and Equal Opportunity Commission's Cairns office on her instructions.

Mrs Te Nuijl said that as a result of legal advice they contacted Mr Delaney to tell him that Ms Tenuyl would not be coming to work any more without explaining the true reason. Mrs Te Nuijl told Mr Delaney that Ms Tenuyl would not be coming to work any more as she had been grounded for poor school grades and had to catch up with her work. She asked Mr Delaney for a work reference and Mr Delaney agreed to send a work reference to Ms Tenuyl but she has never received such a reference.

Subsequently a friend of Ms Tenuyl approached her at school and asked her if she had any problems whilst working at the cafe, because she had a friend and that "Mr Delaney had tried to come on to her". Ms Tenuyl then telephoned Ms Angela Morrison who had worked at the cafe and had the problem. They discussed the problems that they both experienced. Ms Morrison gave evidence that Ms Tenuyl told her that when she was in the kitchen, Mr Delaney "touched her breasts and felt her down below..."

A variety of witnesses gave evidence on both sides as to whether or not the complainant or the first respondent were telling the truth about the incidents involved. However, in assessing that evidence by those witnesses, we have taken account of our own assessment of the witnesses under oath in the witness box. Our observation of their demeanour, their straight forwardness and candour has been of most assistance to us in determining where the truth lies. While we heard evidence from Ms Morrison, who said that she has been subject to sexual harassment by the first respondent, these allegations have not affected our findings of fact in relation to this matter and we make no findings as to whether or not the allegations by Ms Morrison are true. Nor do we find the statements by other past employees that they have not been sexually harassed by Mr Delaney of any probative value. We have found that the allegations made by Ms Tenuyl are truthfully made and that she is an honest witness. Where her evidence contradicts that of Mr Delaney, we prefer her evidence.

Mr Delaney called evidence from a psychologist, Mr Robert Walkley to the effect that it was unlikely that he was "the sort of person who would carry out sexual harassment". Again, this evidence as to likelihood does not assist us as to whether or not he did sexually harass Ms Tenuyl in the manner alleged. It is, however, interesting that the psychological profile prepared by Mr Walkley based on the California Psychological Inventory (CPI) of Mr Delaney showed him to be low in empathy.

Further Mr Walkley admitted that there is no psychological profile of a "sexual harasser" and that the CPI did not actually seek to look at the propensity to sexually harass. He said that he had never performed the CPI on someone and as a result had come to a conclusion that that person was likely to be a sexual harasser. These factors mean that his evidence is not particularly useful to us in reaching our decision.

No convincing reason was put to Ms Tenuyl as to why she might make up all of the allegations although for the first time in cross-examination, Mr Delaney mentioned that perhaps she might have had a crush on him, but we reject this flexible explanation.

3. SEXUAL HARASSMENT

Sexual harassment is defined in s.28A of the Sex Discrimination Act 1984 ("the Act") as follows:

"28A(1) [Sexual harassment defined] 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.

28A(2) [Interpretation] 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 make orally or in writing."

Section 28B prohibits sexual harassment in the work place. We find that the first respondent sexually harassed the complainant in the workplace by unwelcome words and conduct of a sexual nature.

4. THE EFFECT OF THE SEXUAL HARASSMENT ON MS TENUYL

Ms Tathia Shield is an English teacher at Kirwan High School and the year 12 student coordinator. She gave evidence that she was the Care and Roll Marking teacher for Ms Tenuyl in 1994. As such her role was to provide guidance and emotional support to students as well as sex education, study skills, drug and alcohol education and career guidance. She developed a close relationship with Ms Tenuyl during 1994 and had regular discussions with her. Ms Shield said that Ms Tenuyl is an honest, very hard working, friendly and well liked person. Her reputation amongst other staff in the school was of a diligent and hard working student. She was liked by a diverse range of people at the school and related well with her peers. She was known for doing many jobs for staff, including, for example, mowing lawns and ironing. She was admired by staff for being industrious and hard working. She was also perceived as trustworthy person by the staff who knew her. For example, she was given keys to her English teacher's home so that she could her do her ironing.

Ms Shield was concerned about the effect of the incidents at Ms Tenuyl's work on her emotional state. They discussed how she was coping and how she intended to deal with it. She said that Ms Tenuyl was confused and upset and needed somebody to talk to. The incidents had affected her relationships with other boys and Ms Tenuyl told Ms Shield that she found it more difficult to trust men because of what had happened at work.

In discussions about Ms Tenuyl with other staff at the school, they said to Ms Shield that they had observed a change in Sancha's behaviour. She seemed unsettled, moody and emotional.

Ms Tenuyl's current employers in her full time and part time jobs gave sworn evidence as to what a well respected reliable, honest and hard working employee Ms Tenuyl is.

Ms Tenuyl's father gave evidence that after Sancha had been working at Delaney's cafe he noticed a change in her personality. She became short tempered, moody and would easily take offence and was highly emotional. He said that, for example, she sometimes cried, sometimes yelled, was sometimes withdrawn and was sometimes defiant. At first he thought that those mood swings were just a normal stage of growing up, however he was concerned that there must be something more to it than that and when he asked what was wrong she kept saying that nothing was wrong. He said that he noticed that she began wearing too much clothing (sometimes three sets of clothing) and that she could never give any reason for doing so that made any sense.

Mrs Te Nuijl gave sworn evidence that after obtaining employment at Delaney's Cafe her daughter seemed to be doing well and enjoying the job. She continued to attend school and to participate in other activities such as athletics both at school and the Athletics Club. She continued to behave normally. She helped around the house, including cleaning her bedroom, washing the dishes and hanging the washed clothes on the clothes line. She particularly enjoyed helping in the yard and would mow people's yards in the neighbourhood, including friends' yards and on occasions some of her teachers' yards. She said her daughter would even go car washing with the young boy next door. She said that on the whole Ms Tenuyl was cheerful and friendly.

However, Ms Tenuyl said that she and her husband noticed changes in their daughter's behaviour including mood swings, uncooperative behaviour in the home and some quite angry confrontations. They tried everything they could think of to find out what was the trouble but Ms Tenuyl continually said there was nothing wrong and told them to leave her alone and said they wouldn't understand. Mrs Te Nuijl said that even when Ms Tenuyl was invited to intend functions with her friends, such as parties or get togethers, on most occasions she would say she could not go because she had been grounded by her parents even though this was not true as they had not grounded her.

Mrs Te Nuijl says that her daughter began wearing extra clothing all the time which led to many arguments as Ms Tenuyl would never give any reason that made any sense. She said Ms Tenuyl was also constantly asking for notes to exclude her from swimming and some of the other activities at the school, such as boating, which required limited clothing.

Ms Tenuyl still has painful periods of withdrawal from her family and friends. For a while she was also worried about the physical effects of what had been done to her. She thought that it might affect her capacity to have children in the future.

Mr Benn says that he did not know Ms Tenuyl prior to July 1993, however, when he first saw her she appeared to him to be withdrawn, bitter and angry. She carried her head low and kept her eyes on the floor when moving around the school. He said that "she despised her boss and was very intent with seeing him meet with justice".

Mr Hill says that before the incidents took place, Ms Tenuyl was active in athletics and other sports. She was exciting and fun to be around and rarely in a bad mood. She had lots of friends and was very popular.

Mr Hill says throughout all of this her behaviour and personality changed considerably. She would withdraw into her own world and wouldn't let anybody else into her world. She always looked depressed and sad. She rarely smiled and when she did it was a false smile. She stopped seeing Mr Hill and spending time with him. She lost interest in running and spending time with people. She would often sit and not say a word, just watch people and listen.

Mr Hill says it was hard to get a conversation from her. She began to spend a lot of time by herself. She would just lie around and read and make excuses for why she couldn't go out and she lost contact with her friends. Nobody knew how to reach her. He said that when he was with her she often just sat there and stared into space. Mr Hill said she seemed to become more depressed and stop smiling for months and he didn't hear her laugh until a few months later. He says that she often had bags under eyes. She had transformed from being a bright, cheery, friendly girl into a stranger who never talked and never smiled.

Ms Tenuyl's school reports which were tendered in evidence show that she was very active in sports. In 1990 and 1991 she represented her school in North Queensland Cross Country and Athletics. She was awarded medals for North Queensland representation in cross country, North Queensland representation in athletics, cross country age champion and athletics age champion. In 1992, she won school sports awards as a Townsville representative in athletics and best and fairest in junior vigoro. She achieved a high achievement in health and physical education in her Junior Certificate. In 1993 she received a school sports award as a Townsville representative in cross country and was a member of the school athletics team.

At the end of 1993, however, she received only a sound achievement in health and physical education. By the end of 1994 in her senior exit statement she received only a limited achievement in the subject.

Her evidence was that she represented North Queensland between the ages of 10 and 15 but had not participated in athletics since she was 16 because after the incidents with Mr Delaney she did not feel comfortable wearing "bum shorts or bike pants".

Ms Tenuyl gave evidence that her experience has left her with social difficulties. As she said:

"I'm not really that comfortable about - when - when you go out with - because I'm getting older now, sex is a big interest in relationships and I've recently just split up with my boyfriend because I wouldn't sleep with him because I don't feel comfortable around men and I don't feel comfortable with him touching me so we broke up and - that's it."

It would seem reasonable to deduce that the cause of her lack of comfort with men has been caused by the serious sexual harassment she endured.

Ms Amma Buckley, Research Officer, gave evidence of the counselling which she provided to Ms Tenuyl. She is a very experienced councillor and has many years' experience counselling female victims of sexual assault. She counselled Ms Tenuyl in a number of face to face sessions between August and December 1993. She maintained intermittent phone contact with Ms Tenuyl in 1994 and 1995 and again saw her twice in September 1995.

Ms Tenuyl described to Ms Buckley that she felt humiliated, cheap and dirty and guilty that she has been powerless to stop the sexual harassment. She described having difficulty getting the incidents with Mr Delaney out of her mind. She told Ms Buckley that she thought about him often and she would get angry and upset. At other times she was depressed and moody.

Ms Buckley's notes record that on 14 August 1993, Ms Tenuyl said to her that she wanted some sort of public acknowledgment or apology for what Mr Delaney had done to her stating that "I want to humiliate him like he has humiliated me". At the time of the trial Ms Tenuyl had forgotten she said that and said that she did not want to humiliate him. Her forgetting that she had said that is consistent with the passage of time and the fact that she no longer wants to humiliate Mr Delaney is also consistent with her feelings of anger and hurt towards him having lessened over the period of time since the sexual harassment. Mr Donnelly on behalf of the respondent made much of the fact that she had read the notes written by Ms Buckley about a month before trial. However, we can draw nothing from this evidence other than the fact that over the period of time she had forgotten that remark that she had made to Ms Buckley, that she did not attach a lot of significance to it and that whatever her feelings immediately after the period of sexual harassment, her feelings of hurt and anger and a desire to humiliate Mr Delaney had diminished with the passage of time. Her demeanour during this part of cross examination was of a young woman anxious to give truthful answers even when at times the questions asked of her were quite ambiguous and delivered in a very hectoring manner.

One of the matters that has continued to concern Ms Tenuyl was the attitude of her peers and friends once they knew what had happened. When matters concerning her complaint, such as the conciliation conference occurred, Ms Tenuyl felt sick and found it difficult to eat or sleep. She was depressed and wanted to spend time alone. This created some conflict with her parents which exacerbated her anxiety levels. For a number of months following the conciliation session, Ms Tenuyl cried whenever she thought of the events of that day. Ms Tenuyl indicated to Ms Buckley that this had added to the negative emotional spiral she had experienced for almost two years.

On the last session which occurred on 14 September 1994, Ms Buckley asked Ms Tenuyl to identify the changes that had occurred since the onset of the incidents of sexual harassment. There were five raised as follows:

1. Ms Tenuyl indicated that at the time she was sexually inexperienced. The extent of her sexual contact had been limited to kissing. She felt that Mr Delaney had stolen her innocence by engaging with her in sexual behaviour without her consent. He took advantage of their working relationship and her naivety. Ms Tenuyl said that what he did was without thought for how it would affect her. She concluded the incidents had forced her to grow up in a painful way.

2. Ms Tenuyl stated that she did not think or feel the same way about herself. She felt damaged, dirty and lacking in confidence. Due to the incidents she had noted a change in the way she interacted with people altering from open, friendly and outgoing to closed and reserved. She stated that she found it increasingly difficult to trust people and felt more and more isolated.

3. Ms Tenuyl indicated to Ms Buckley that she was having difficulty in maintaining relationships with young men. She had been involved in three relationships in the preceding 18 months but she considered that they didn't work out because of her inability to form intimate emotional and physical relationships. Ms Tenuyl told Ms Buckley that in particular her ability to become involved sexually had been the major factor. She attributed her inability to develop an intimate relationship to her feelings of guilt and pain which surrounded her concept of her sexual self.

4. Ms Tenuyl identified another major change to Ms Buckley in the way she perceived her physical self. Since the onset to the incidents she had told Ms Buckley that she had changed the way she dressed, preferring baggy clothes that hid her body. She acknowledged that they were a means of protection. She told Ms Buckley that the only place that she was uninhibited in what she wore was at home, but only with her immediate family.

5. Ms Tenuyl discussed with Ms Buckley in how difficult it was to get on with her life. She wanted to put these events behind her and get on with living but she kept thinking about the events in particular at night before going to sleep. Occasionally, out of the blue, she would remember incidents.

Ms Buckley's assessment of the emotional impact on Ms Tenuyl was that her emotional recovery had been in a state of flux. In many ways her despair had impacted on her perception of her self and her world. In Ms Buckley's professional opinion, the incidents of sexual harassment had a marked affect on Ms Tenuyl, resulting in an emotionally, vulnerable and damaged young woman. Her inability to heal emotionally was influenced by many factors including her feelings of violation and betrayal, the questioning of her integrity, her powerlessness, her feelings of injustice and the lengthy period of waiting for an outcome.

Ms Buckley was of the opinion that Ms Tenuyl's recollections and feelings were consistent and congruent and also consistent with literature dealing with sexual assault.

5. FINDINGS

As a result of this inquiry, the Hearing Commissioners are satisfied that the complaint has been substantiated. We are satisfied that the complainant has proved her case on the balance of probabilities. In making this finding we have had regard to the seriousness of the allegations and the principles relating to the standard of proof enunciated in Briginshaw v. Briginshaw [1938] HCA 34; (1938) 60 C.L.R. 336 particularly at 362 - 363 per Dixon J. and Djokic v. Sinclair and Central Queensland Meat Export Company (Aust) Pty Limited [1994] EOC |P 92 - 643 at p 77, 419 per Sir Ronald Wilson.

Accordingly the Commission makes a declaration, under s.81(1)(b)(iv) of the Act that the respondents should pay to the complainant damages by way of compensation for the loss or damage suffered by reason of the conduct of the respondents. The damage includes the injury to the complainant's feelings and the humiliation suffered by the complainant. The second respondent is vicariously liable for the acts of the first respondent pursuant to s.106 of the Act.

6. ASSESSMENT OF DAMAGES

Measure of Damages

In Haines v. Bendall [1991] HCA 15; (1991) 172 C.L.R. 60 at 63, the High Court held:-

"The settled principle governing the assessment of compensatory damages, whether in actions of tort or contract, is that the injured party should receive compensation in the sum which, so far as money can do, will put that party in the same position as he or she would have been in if the contract had been performed or the tort had not been committed: Butler v. Egg & Egg Pulp Marketing Board [1966] HCA 38; (1966) 114 C.L.R. 185 at 191; Todorovic v. Waller [1981] HCA 72; (1981) 150 C.L.R. 402 at 412; Redding v. Lee [1983] HCA 16; (1983) 151 C.L.R. 117 at 133; Johnson v. Perez [1988] HCA 64; (1988) 166 C.L.R. 351 at 355, 386; M.P.B.(S.A.) Pty Ltd v. Gogic [1991] HCA 3; (1991) 171 C.L.R. 657; Livingstone v. Rawyards Coal Co. (1880) 5 App.Cas. 25 at 39; British Transport Commission v. Gourley [1955] UKHL 4; [1956] A.C. 185 at 197, 212. Compensation is the cardinal concept. It is the `one principle' that is absolutely firm, and which must control all else: Skelton v. Collins [1966] HCA 14; (1966) 115 C.L.R. 94 at 128, per Windeyer J."

The compensatory damages referred to in s.81(1)(b)(iv) of the Act should be decided according to the principles laid down by the High Court in Haines v. Bendall.

Special damages

Loss of earnings: At Delaney's Cafe, Ms Tenuyl received $25 per week. She was not able to obtain alternative work for 4 - 5 months and she is entitled to be awarded that as a loss incurred as a result of having to give up her job because of the sexual harassment she suffered. The total wages lost by Ms Tenuyl as a result of the respondents' actions was an amount of approximately $500.00.

Future Treatment: In Ms Buckley's opinion, Ms Tenuyl requires sustained medium to long term counselling as the result of the damage caused to her by the sexual harassment. This may require a minimum of 18 months regular counselling on a fortnightly basis. Her estimate of the costs for this intervention was a minimum of $2730.00 (being $70.00 - $80.00 per hourly session for 39 sessions). It would seem that this counselling is necessary and therefore this item of special damages should be allowed.

Interest: An award of interest up to the date of judgment is an award of interest in the nature of damages: Fire & All Risks Insurance Co. Ltd. v. Callinan [1978] HCA 31; (1978) 140 C.L.R. 427 at 433. This statement acknowledges that the award of interest is an integral element in the attainment of the object of damages, namely to compensate the complainant for the injuries suffered. Hence the award of interest is compensatory in character. While "interest should not be awarded as compensation for the damage done" (Jefford v. Gee [1970] 2 Q.B. 130 at 146), the award of interest is nevertheless an essential element in the achievement of true compensation for that damage. In Thompson v. Faraonio (1979) 54 A.L.J.R. 231 at 233, the Privy Council stated that "the reason for awarding interest is to compensate the Plaintiff for having been kept out of money which theoretically was due to him [or her] at the date of his [or her][injury]": see also Batchelor v. Burke [1981] HCA 30; (1981) 148 C.L.R. 448 at 455 per Gibbs C.J.; M.P.B.(S.A.) Pty Ltd v. Gogic [1991] HCA 3; (1991) 171 C.L.R. 657 at 663-665.

The award of interest for the period of delay in payment between the date of accrual of a cause of action and the judgment affords a fair legal measure of compensation: Pheeney v. Doolan [1977] 1 N.S.W.L.R. 601 at 613 per Reynolds J.A. Thus, it is the award of damages and, where appropriate, interest awarded on damages for the period up until the decision takes effect which allows the complainant to be placed in or restored to the situation, as far as money can do, in which she would have been but for the respondents' acts of sexual harassment.

We therefore award 4% interest on the amount of pre-trial loss of earnings: see M.P.B.(S.A.) Pty Ltd v. Gogic [1991] HCA 3; (1991) 171 C.L.R. 657, from the date of her resignation to the date of this decision. This amount is $55.00.

General damages

As is recognised by s.81(1)(b)(iv) of the Act, the complainant is also entitled to general damages for the humiliation and injury to her feelings. This is a most serious case of sexual harassment. The youth of the complainant, the maturity of the respondent, the relationship of trust between employer and employee and the serious nature of the assault perpetrated by Mr Delaney on Ms Tenuyl puts it into the higher category of damages that can be awarded: see for example Lin v. Kirlappos (1995) EOC |P92 - 711 where an amount of $20,000 as general damages was awarded. We are of the view that a similar award is warranted in this case.

7. PROCEDURAL MATTERS

Leave was granted by the Commission under s.65(1)(d)(ii) of the Sex Discrimination Act ("the Act") for the parties to be represented by solicitor and counsel of their choice.

The inquiry was held in public pursuant to s.66(1) of the Act and the Hearing Commissioners directed pursuant to s.67(1)(c) that any information which might enable the person who has appeared before the Commission to be identified should not be published. That order was made until a decision was handed down in this matter and so that order is now lifted. The identity of the parties in this inquiry may now be published together with the names of any witnesses who have appeared. However, we order that the transcript of evidence and the contents of any of the exhibits before the inquiry not be published except as they appear in these reasons for decision.

8. CONCLUSION

We find that the damages that ought to be paid by the respondents to the complainant pursuant to s.81(1)(b)(iv) of the Act is $23,285.00 being $20,000.00 general damages, $2,730.00 for future treatment, $500.00 loss of wages and $55.00 interest on loss of wages. Further we declare pursuant to s.81(1)(b)(ii) that the first respondent should provide the complainant with a written work reference.

Dated this 13th day of May 1996

Roslyn Atkinson Mary Kalantzis

Hearing Commissioner Hearing Commissioner