Greenhalgh v National Australia Bank Ltd [1997] HREOCA 2 (23 January 1997)

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

SEX DISCRIMINATION ACT 1984 (CTH)

No. H95/29

Between:

Karen Greenhalgh

Complainant

And:

National Australia Bank Ltd

Respondent

REASONS FOR DECISION

of

Marion Brown

Inquiry Commissioner

Location of Hearing: Sydney

Hearing Dates: 23 & 24 August 1995

Date of Decision: 23 January 1997

Appearances: Roslyn Cruse, instructed by Golsby Whiteley, Solicitors for the complainant.

Michael Harmer of Freehill, Hollingdale and Page, Solicitors appeared for the respondent.

1. INTRODUCTION

On 29 October 1993 Ms Karen Greenhalgh ("the complainant") lodged a complaint under the Sex Discrimination Act 1984 (Cth) ("the Act") alleging that she was sexually harassed in the course of employment with the National Australia Bank Ltd ("the respondent" or "the Bank") by a fellow employee, whom I will refer to as "Mr A" as he was not a party to the proceedings and did not have an opportunity to respond to the allegations. On 17 February 1995 the Sex Discrimination Commissioner referred the matter to the Commission for inquiry pursuant to s.57(1)(b) of the Act as endeavours to conciliate the complaint were unsuccessful. The matter was originally listed before Commissioner Rayner, who granted leave for both parties to be represented. Commissioner Rayner was not able to continue to hear the matter and it was then relisted before me. Pursuant to s.59 of the Act I conducted a public hearing into the complaint on 23 and 24 August 1995.

1.1 The Complaint

The complaint before me involved: (i) an allegation of unlawful sexual harassment on the part of the complainant's supervisor, Mr A; (ii) an allegation that the respondent was vicariously liable under s.106 of the Act for the alleged unlawful conduct of its employee, Mr A, as it had failed to take all reasonable steps to prevent such conduct; and (iii) an allegation that the complainant has been the subject of ongoing harassment or victimisation on the part of the respondent and its employees.

1.2 Parties to the complaint

The complainant named the National Australia Bank Ltd as the respondent to her complaint as being vicariously liable under s.106 of the Act for the alleged unlawful conduct of its employee, Mr A. The complainant did not name Mr A as a respondent to her complaint.

1.3 Suppression

At the outset of the hearing I made an order under s.67 of the Act prohibiting the publication of any information that will identify any of the parties to these proceedings, any of the individuals who give evidence or are named in any documents in the proceedings, the identity of the bank involved in these proceedings and any branch names referred to in these proceedings. In addition I extended the suppression order to material relating to an overseas transaction in which the respondent was involved. I ordered that the suppression order stay on foot until the conclusion of the proceedings at which point it would be reviewed.

The respondent subsequently made written submissions seeking the maintenance of the suppression orders in this matter. The complainant made no written submissions in relation to the lifting of the suppression orders, although she had sought the lifting of such orders as far as they affected the identity of the Bank during the course of the hearing of this matter. I do not consider this case to be exceptional in any significant regard that would justify departing from the Commission's usual course of lifting suppression orders once the issues between the parties have been heard and determined. Accordingly, I order the that the suppression orders in this matter be lifted.

1.4 Conciliation and negotiation

After the complaint was filed with the Commission, the complainant and officers of the respondent entered into conciliation conducted by staff of the Commission. The conciliation conducted by the Commission was unsuccessful. The matter was then referred for hearing. Prior to the commencement of the hearing the parties embarked on a series of private negotiations. At the hearing both parties advised they agreed to waive their "without prejudice" privilege in relation to the documents exchanged in the course of their negotiations.

The conduct of the parties in the course of the attempted settlement negotiations is relevant to the issues in dispute in this matter. The complainant sought an award of aggravated damages, claiming the conduct of the respondent in this matter, was of an order requiring compensation over and above that considered adequate to address her loss or damage. The respondent, in turn, claimed that the complainant had not negotiated in good faith.

During the course of the conciliation and subsequent negotiations, the respondent agreed to many of the complainant's requests arising in the conciliation and negotiation process. These included establishing a sexual harassment contact point in each State to act as a confidential service to employees and to provide advice on how to handle incidents of sexual harassment, appointing a contact officer for the complainant to assist her on an ongoing basis and an agreement to pay all the costs the complainant had incurred in relation to psychological counselling and reasonable ongoing costs of necessary counselling.

It is clear from these negotiations that the complainant considered many of the respondent's practices had not operated to support victims of sexual harassment and I accept she was genuine in her endeavours to improve the prospects for other staff who might find themselves the subject of similar, unwanted attention.

The Commission was advised that the parties had managed to come closer to a settlement when the respondent increased its offer to a payment of $20,000 plus the complainant's expenses (up to $8000) of moving back to Sydney, a move she requested. Subsequently by letter dated 3rd March 1995 the complainant indicated that she would accept the respondent's offer of $20,000 plus other expenses, including legal costs to the date of settlement and her reasonable costs of counselling. However, the complainant indicated her agreement was subject to an additional proviso, that the respondent also provide a `Bank initiated' transfer to Sydney, which would entitle her husband, (who is also employed by the respondent), to a payment of $17,000 to cover their moving costs.

The respondent withdrew from negotiations on or about 13th April 1995. When the hearing commenced the respondent advised it had withdrawn from the negotiation process because it considered the complainant's behaviour unreasonable. It stated it withdrew from the negotiations after the complainant wrote to it, threatening to expose the poor response of the respondent's staff and indicating that a failure to settle the matter on her terms could lead her to attempt to undermine one of the respondent's overseas commercial acquisitions. It was during the direct negotiations, whilst the complainant was represented by her former legal advisers, that she wrote directly to the Managing Director of the respondent, by letter dated 8 February 1995, enclosing copies of correspondence she indicated that she would send to overseas companies involved in transactions with therespondent. At the time this correspondence was sent the complainant was seeking damages of $250,000. At the hearing the complainant advised she believed she had received poor legal advice in pressing this claim. The complainant did not press a claim of this magnitude during the hearing of her complaint.

The respondent maintained that the complainant was unreasonable and had failed to negotiate in good faith. The respondent maintained that the complainant had responded to its increased offers with increased demands. The respondent submitted it was appropriate for an independent third party, (i.e. the Commission), to act as umpire to determine what is a reasonable sum by way of compensation to the complainant.

2. THE LAW

The relevant sections of the Act are as follows:

14.(1) . . .

(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.

...

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

(a) an employee of that person;

(b) an employee of a person by whom the first-mentioned person is employed; or

(c) a person who is seeking employment by the first-mentioned person or by an employer of the first-mentioned person.

(2) . . .

(3) A person shall for the purposes of this section, be taken to harass sexually another person if the first-mentioned person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the other person, or engages in other unwelcome conduct of a sexual nature in relation to the other person, and:

(a) the other person has reasonable grounds for believing that a rejection of the advance, a refusal of the request or the taking of objection to the conduct would disadvantage the other person in any way in connection with the other person's employment or work or possible employment or possible work; or

(b) as a result of the other person's rejection of the advance, refusal of the request or taking of objection to the conduct, the other person is disadvantaged in any way in connection with the other person's employment or work or possible employment or possible work.

(4) A reference in subsection (3) to conduct of a sexual nature in relation to a person includes a reference to the making, to, or in the presence of, a person, of a statement of a sexual nature concerning that person, whether the statement is made orally or in writing.

47A In this Part, a reference to an act that is unlawful under a provision of Part II includes a reference to an that is an offence under section 94.

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 allegation of sexual harassment

The complainant was employed as an Operations Officer in a suburban branch of the respondent from July 1990 to October 1992. Mr A commenced work at the same branch in July 1991 as Customer Service Supervisor. He was the complainant's direct supervisor and responsible for assessing her work performance. The complainant alleges that between July 1991 and August 1992 she was subjected to sexual harassment by Mr A.

The complainant alleges that soon after Mr A commenced work at her branch in July 1991, he engaged in behaviour which she considered harassment. She alleges that he would stand in her personal space and lean against her, at the same time he would "stroke, pat and play with his genitals."

In her affidavit sworn 17 August 1995 the complainant alleges that Mr A would often look at her breasts when he spoke to her. This made her uncomfortable and she began to wear a coat or jumper so that her breasts "would not be so obvious."

The complainant says that she did not speak to Mr A to tell him she found his behaviour offensive because she felt intimidated by him. She says in her statement of 2 November 1993, "His manner was aggressive, arrogant and very rude. He was completely unapproachable. His behaviour at the time caused me great stress and I left work in tears on many occasions."

The complainant alleges that on several occasions whilst she was filing documents, Mr A leaned over her and stroked his hand across her bottom.

She cites another incident when she witnessed Mr A "fondle another female employee's breast on the pretext of straightening her name badge."

She cites a further incident when she witnessed Mr A rub his crotch in the face of another female employee when the other employee was working at her computer in August 1992.

The complainant alleges that on a daily basis, Mr A would rub and arrange his genitals while she was sitting down and likely to see what he was doing. She believed his behaviour to be intentional.

3.2 The allegation that the respondent failed to take reasonable steps to prevent sexual harassment both prior to and after the Branch Manager was notified of the complainant's allegations.

The complainant alleges that prior to Mr A's arrival at the complainant's branch he had a reputation for sexualised behaviour such that should have put the respondent on notice. The Branch Manager, Mr Delander testified that Mr A had a reputation that preceded him but it was limited and not such that would put him on notice in relation to allegations of the type made by the complainant.

The complainant alleges that the respondent had no proper procedure in place to respond to complaints of sexual harassment and if it did it was not properly implemented.

The complainant alleges that she complained of Mr A's behaviour to the Branch Manager in November 1991. She believes no action was taken in response to her complaint.

The complainant alleges that she again made complaints about Mr A's behaviour to Mr Delander in early 1992, after some other staff had made similar complaints. She says that soon after she was advised by Mr Delander that if she wanted to receive a promotion, she would have to "learn to get on with" Mr A.

In August, 1992 the complainant joined with other female staff members to make a written complaint to the District Office of the Bank when Mr A and Mr Delander were absent. The matter was referred to the Human Resources Department. Mr A was transferred from the branch where the complainant was employed that day.

The evidence of Mr Delander is that he did not understand the complaint made to him to be allegations of sexual harassment and that whilst he may have said "you will have to learn to get on with" Mr A that would have been said in a general context and not related to the complainant's prospect of promotion.

The respondent admitted the allegations that the complainant had been sexually harassed in breach of the Act by Mr A, further, the respondent admitted that it was vicariously liable for the acts of its employees and that more could have been done to stop Mr A's offensive behaviour.

3.3 The allegation that the respondent failed to properly investigate the complaint.

The complainant alleges the complaints she made to the Branch Manager prior to August 1992 were not properly investigated.

After August 1992 the complaints of the complainant and other female staff were investigated by Ms Vaneris a Human Resources Manager from the Human Resources Department of the respondent. The complainant alleges that Ms Vaneris failed to treat her complaints seriously, sympathetically or objectively and that she trivialised the matters complained of. The complainant and other staff then contacted the Financial Services Union.

The complainant contends that she was not dealt with according to the respondent's own policy. She felt disbelieved, considered the respondent was more concerned for the welfare of the alleged perpetrator, and suffered unnecessary damage because of the respondent's failure to act promptly to stop the harassment when complaints were first made.

The respondent had a sexual harassment policy since 1984. In 1992 a revised policy was introduced which stated that sexual harassment will not be tolerated or condoned. It stated that it was the responsibility of managers and supervisors "to ensure that all staff are aware of the bank's policy on sexual harassment and that behaviour at work is of an acceptable, professional and appropriate standard." The policy also required managers and supervisors to "Take accurate file notes, using the complainant's own words where possible". The policy also advised, "In conjunction with the District Manager/ Department Head, a month after the complaint has been resolved, check that the behaviour complained about has in fact stopped and that the resolution is working satisfactorily. Regular ongoing monitoring should be undertaken where necessary".

The respondent submits that once the allegations were brought to the attention of the district office in August 1992 it undertook an investigation in a prompt and appropriate fashion. It states that shortly after 18 August 1992 Mark Patterson (the Human Resources Manager at the Parramatta District branch) visited the complainant's branch with his assistant, Pip Vaness, that he spoke to a number of staff and received complaints in relation to the behaviour of Mr A; that he asked the staff to put their concerns in writing and that on about 21 August he received brief written statements from the complainant and two other female staff members; that he and Ms Vaness visited the branch on that date; spoke to the staff about the complaints and immediately informed Bessie Vaneris (State Human Resources Manager) and Alistair Jamieson (Area Manager) of the sexual harassment allegations against Mr A. The respondent states that Ms Vaneris, Mr Patterson and Mr Jamieson held a meeting with Mr A on about 24 August 1992 to discuss the allegations made in the statements; that for the purposes of fact finding Ms Vaneris and Mr Jamieson held a second meeting with Mr A, who was accompanied by his union representative, on 26 August 1992; that on 27 August 1992 Ms Vaneris and Mr Jamieson visited the branch to talk to staff about the allegations; that on 11 September 1992 Ms Vaneris and Mr Jamieson held a third meeting with Mr A, who was again accompanied by his union representative; that on 16 September 1992 Ms Vaneris informed staff at the branch that the process was delayed as Mr A wished to furnish a further statement; that on 13 October 1992 the respondent held a final meeting with Mr A at which Ms Vaneris informed him that it considered the allegations of sexual harassment to be substantiated.

3.4 The allegation that the respondent failed to respond appropriately.

It was the complainant's evidence that the response of the Branch Manager, the Area Manager and staff of the Human Resources Department fell short of that required by the respondent's own policy.

In particular, the Branch Manager continued to leave the alleged harasser with the responsibility of disseminating information on the respondent's policies, including the sexual harassment policy, to junior staff after complaints had been made about his behaviour. There was evidence before the Commission that female staff at the branch where the complainant was employed were not made aware of the respondent's sexual harassment policy until information was found in the desk of Mr A, after he had been transferred from the branch.

After a meeting between the complainant, other Bank staff, senior Bank staff and a Union representative, the Bank arranged psychiatric counselling for aggrieved staff members. The complainant declined this counselling after one interview as she thought it might affect her prospects of promotion.

Discussions between the bank management and the complainant continued and the bank agreed to meet the expenses of the complainant's counselling, to provide special leave to enable her to attend counselling without loss of pay, and to adopt some of the policy suggestions of the complainant.

The respondent maintains that while no action was taken in response to complaints made before August 1992, it did respond promptly once the complaint was notified to the Human Resources Department of the respondent in August 1992. At that time Mr A was transferred out of the branch in which the complainant was employed and he was subsequently demoted, removed from all supervisory functions and required to undergo interpersonal skills training prior to his further progression within the Bank.

The respondent maintains that it complied with all the demands of the complainant that were made known to it in the course of the investigation of the complainant's complaint in 1992.

3.5 The allegation that the respondent failed to prevent further harassment or victimisation.

The complainant accepted a promotion and moved to a rural branch. The complainant alleges that she has continued to be harassed or treated unfairly in her position at this branch. There was evidence to suggest other employees resent the complainant's ready access to special leave and the complainant considers she is not well treated by her current manager.

Further, the complainant alleges she has been denied promotion opportunities as a result of moving to the country to take up a promotion position and 'start afresh' after her experiences. She maintains that she is over-due for promotion. The respondent contends that promotion positions tend to become available less frequently in smaller, country branches, and that it was the complainant's wish to transfer to a rural district.

4. FINDINGS

4.1 Sexual harassment

Whilst there is some dispute as to the details of some of the alleged incidents I find the complainant was subjected to unwelcome conduct of a sexual nature between July 1991 and August 1992 and that she had reasonable grounds for believing that taking objection to this unwelcome conduct would disadvantage her in connection with her employment.

4.2 Liability of the respondent

I find the respondent did not take all reasonable steps to prevent its employee from sexually harassing the complainant during the time of Mr A's employment at the complainant's branch. As a result the complainant was subjected to humiliating and distressing behaviour for some 12 months.

I find the respondent did attend promptly to the allegations of the complainant once they were made known to the District Office in August 1992, however, the investigation of the complaints was not strictly in accord with the respondent's own policy and did thereby somewhat compromise the position of the complainant. The evidence indicates Ms Vaneris did investigate the complaints originating from the complainant's branch, but in doing so she failed to interview each of the complainants separately, failed to establish if there were other staff who could verify the accounts of the complainant, and failed to obtain a sufficiently detailed account from the complainant in her own words. While these matters have caused some hardship to the complainant, the facts remain that complaints against Mr A were upheld and acted on by the respondent.

Whilst the conduct of certain senior officers of the respondent was not strictly in accord with the respondent's sexual harassment policy, I do not find their actions have significantly impacted on the damage suffered by the complainant.

4.3 Further harassment or victimisation

Whilst the complainant considers she is not well treated by her current manager and there was evidence to suggest other employees resent the complainant's ready access to special leave, I am not satisfied that the continuing problems experienced by the complainant in her current workplace constitute harassment or victimisation or an attempt to treat her less favourably than other employees.

The respondent has instituted certain procedures to support the complainant and ensure her privacy in this matter is maintained as far as possible. As such, the reasons for the complainant's absences are not known to staff at her current branch and this might give rise to some misguided resentment in relation to the apparent privileges enjoyed by the complainant.

5. RELIEF

5.1 The Effect on the Complainant

The complainant alleges that during the period in which she was subjected to Mr A's unwanted behaviour, she was under constant stress and hated going to work. She suffered cold sores and nightmares, cried a lot and was regularly unwell. The complainant relied on psychological reports indicating that she continues to suffer from a post traumatic stress disorder as a result of the behaviour she was subjected to.

The respondent submitted the assessments should be treated with caution as information on which the assessments were based was limited to the complainant's own account, which was disputed in some respects.

During the course of the hearing, the complainant alleged that she continues to be treated in an unfair manner by her supervisor and some other staff at the rural branch where she was employed at the time of the hearing.

The complainant contends that prior to the arrival of Mr A at the suburban branch where she was previously employed, she enjoyed her work and was acknowledged to be a competent employee, likely to be promoted over time. She gave evidence that following her treatment by Mr A and the respondent's apparent failure to address her complaints, she felt powerless and ill and developed a range of symptoms which have been diagnosed as a post traumatic stress disorder. She is said to be, "affected by symptoms which result from the sexual harassment in all significant areas of her life, and her enjoyment of life is severely constrained as a result."

I accept the complainant has suffered humiliation and discomfort as a result of the harassment she was subjected to. I also accept that these incidents have impacted on her quality of life outside her workplace. However, it is also true the complainant has been able to continue to work, albeit with less enjoyment, and she was promoted to her current position after Mr A left the suburban branch where she was harassed. The complainant's medical evidence contends that her current condition may resolve with the finalisation of these proceedings.

5.2 Damages

In this matter the complainant seeks general damages and aggravated damages. The complainant alleges that the respondent has failed to negotiate a fair and reasonable settlement, has failed to discipline staff who have not followed the respondent's sexual harassment policy, has failed to treat the complainant with respect and by its conduct has exacerbated the complainant's emotional distress and anger.

The complainant claims special damages in that she was unable to perform "Flexi-teller duty" whilst she was on stress leave and that she has lost opportunities for promotion by transferring to a rural branch, to make a fresh start after these events. The amount claimed by way of special damages was not specified by the complainant.

The respondent claims the complainant is limited to fair and reasonable compensation for the loss she has suffered as a result of the respondent's conduct. It maintains the complainant should not be able to profit from the unfortunate situation she finds herself in by using it to leverage damages over and above fair and reasonable compensation.

The law relating to the assessment of damages under the Sex Discrimination Act is addressed in the cases of Hall & Ors v. Sheiban Pty Ltd & Ors (1989)EOC 92-250

and Haines v Bendall (1991) 172 C.L.R.60.

In Haines v Bendall (supra) at p.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) 151 C.L.R. 17 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 [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."

Lockhart J. said in Hall v Sheiban (supra) at p.526:

"Once the applicant's account of her reaction is accepted, if it 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."

In this matter I accept the evidence of the complainant (which is not contested by the respondent) that she did suffer humiliation and discomfort when she was sexually harassed by her supervisor, Mr A. I accept the complainant has experienced anxiety and sleep disturbances and a general loss of enjoyment of work and life as a result of Mr A's behaviour.

Whilst I am satisfied the complainant perceives she continues to be treated unfairly by the respondent, I do not accept that she has in fact continued to be treated unfairly since being promoted in October 1992 and transferred to a country branch.

5.2.1 Aggravated damages

In this matter the complainant sought an award of aggravated damages in addition to an award of general damages. The complainant claims the failure of senior bank staff to give credence to her complaints, properly investigate her complaints, strictly comply with the bank's own policy on sexual harassment and discipline staff who failed to strictly enforce the bank's policy on sexual harassment, have aggravated the damage caused to her.

However, in the face of the complainant's allegations, the facts remain that senior staff of the respondent did eventually investigate her claims, did stand-down, transfer, demote and discipline Mr A, did offer and pay for the complainant to attend counselling to address her distress arising from the actions of Mr A, did provide for the complainant to take special leave to attend counselling sessions during work hours and did meet some of the complainant's suggestions to improve the respondent's policy and response to sexual harassment.

This is not a matter in which the respondent has refused to sit down and negotiate with the complainant. The respondent did make several offers of settlement to the complainant, some which included the payment of her costs to the date of the proposed settlement. Neither is this a matter where the complainant has been put to the expense and stress of having to establish the facts of her sexual harassment, nor the respondent's vicarious liability.

While I accept the response of the respondent's senior staff was lacking in some regards, I consider that adequate compensation can be provided by way of an award of general damages. I do not consider the conduct of the respondent in this matter is such that it should attract an award of aggravated damages.

5.2.2 Special Damages

While I accept the complainant chose to move to an area where her promotional prospects may fairly be expected to be somewhat reduced, it is reasonable for someone in her position to seek a change of scene and a fresh start. I accept that the complainant was likely to have less opportunities to apply for and obtain a promotion position in a rural branch, as opposed to one in the greater metropolitan area.

It is appropriate to provide some measure of compensation to restore the complainant to the position she would have been in had she remained in a suburban Sydney branch and not been subjected to the unwanted attention of Mr A.

The complainant claims special damages arising from the lost opportunity to perform flexi-teller duties however this claim was not quantified during the course of the hearing.

5.2.3 General damages

In this matter, having considered previous awards of the Commission and bearing in mind the extended duration of the complained of behaviour prior to the respondent investigating and acting on the complaint, I am satisfied the complainant has suffered significant distress. I assess the complainant's damages to be $14,000.00. This amount comprises compensation for the non-economic loss suffered by the complainant of loss of enjoyment of life, humiliation and distress and for the economic loss suffered by the complainant of lost wages and lost promotional opportunities.

In making this award, I take note of the fact that the general damages are compensation for loss of enjoyment of life, humiliation and distress. While I accept that the physical assaults on the complainant were of a relatively minor nature, the fact that they were allowed to persist for over a year before action was taken increased the damage to the complainant. I note also that the complainant had been attending psychological counselling for over a year at the time of the hearing, and at that stage, there had been "little appreciable change in her situation or symptoms." However, Bruce Schubert, in his report of 20 July 1995 goes on to say:

"In my view [the complainant's] prognosis is quite good as she is highly articulate and committed to resolving her past difficulties. Once this matter has reached some conclusion I am hopeful of a positive prognosis.."

I have made allowance for the fact the respondent has so far met the complainant's expenses of attending counselling and provided her with special leave to attend her counselling appointments. I consider it appropriate for this arrangement to continue in the terms outlined below.

In assessing general damages, I have also taken into account the complainant's perception that she has not been treated fairly by her employer. While I do not accept that the evidence supports this perception, I make allowance for the complainant's distress in this regard.

5.3 Legal costs

In this matter the complainant sought an award for her legal costs citing the respondent's failure to act in a fair a reasonable manner. She claims the respondent has perpetuated an informal policy of ignoring sexual harassment and 'blaming the victim'. The complainant claims the respondent's failure to provide her husband with a bank initiated transfer and the respondent's subsequent withdrawal from negotiations are evidence of 'bad faith' worthy of a costs award against the respondent.

The complainant maintains that she attempted to proceed with her claim before the Commission unrepresented, and was forced to obtain representation when the respondent was granted leave to be represented. She argues that the respondent has thereby, significantly increased the costs she has now incurred.

There is no general power to award costs under the Act, however, in some exceptional cases, allowances for a complainant's costs have been provided for in an award of general damages. The issue of the Commission's power to order the payment of legal expenses has recently been considered by the Federal Court in the matter of Australian Medical Council -v- Wilson (1996) 137 ALR 653. Heerey J. said at page 657:

Section 25Z(1)(b) of the RDA [Race Discrimination Act 1975] confers powers on the Commission, after holding an enquiry, to make 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". In its ordinary meaning that power would not support the order which the Commission purported to make requiring payment of $25000 for "legal expenses". In modern usage the expression "damages by way of compensation for loss and damage suffered by reason of the conduct of the respondent" would not extend to legal costs incurred by a complainant. This reading is confirmed by the existence of s.25ZB which gives an express power to the Commission to recommend to the Attorney-General that assistance be given to persons concerned with enquiries "in respect of expenses incurred by the person in connection with the inquiry".

The Sex Discrimination Act contains provisions equivalent to the provisions referred to by Heerey J. (sections 81(1)(b)(iv) and 83 respectively).

The cost of representation is a decision for each party, and one that is often anticipated when litigation proceeds to a defended hearing.In the circumstances, I do not propose to make any allowance for the legal costs incurred by the complainant as a result of this matter being heard before the Commission.

5.4 Other relief

The complainant sought a number of declarations. In relation to these I find as follows:

1. The complainant seeks a declaration that the respondent be restrained from any further victimisation of the complainant or her husband. I decline to make such a declaration as I am not satisfied such victimisation has in fact occurred.

2. The complainant seeks a declaration that the respondent continue to employ the complainant and her husband. I decline to make such a declaration noting the remedies for unfair dismissal would be available to the complainant and her husband should the circumstances arise.

3. The complainant seeks a declaration that the respondent should provide the complainant with a bank initiated transfer. I decline to make such a declaration and note the allowance made for the complainant to seek a transfer at no cost to herself, as provided below.

4. The complainant seeks a declaration that the respondent should make the necessary arrangements to promote the complainant to Level K. I decline to make such a declaration.

5. The complainant seeks a declaration that the respondent should make the necessary arrangement to reinstate her annual leave for the day spent with her barrister in Sydney on 1 August 1995. I decline to make such a declaration as such a cost is a usual adjunct to pursuing a claim before a tribunal.

6. The complainant seeks a declaration that the respondent provides the complainant with a written apology and publishes that apology in the respondent's newsletter. I decline to make such a declaration as I do not consider the conduct of the respondent in this matter, warrants such action.

6. CONCLUSION

For the reasons set out above I find the complaint substantiated. I declare that Mr A engaged in conduct rendered unlawful under the Sex Discrimination Act 1984 and that the respondent, having failed to take all reasonable steps to prevent such conduct, is liable for such action.

Accordingly, I make the following declarations:

1. Pursuant to section 81(1)(b)(iv) of the Act I declare the respondent is to pay to the complainant damages in the sum of $14,000.00 by way of compensation for the loss and damage suffered by her by reason of the conduct of the respondent.

2. I further declare the respondent is to continue to meet the reasonable costs of the complainant incurred by way of medical or counselling fees genuinely arising from the complainant's experiences at the suburban branch where she was employed in 1991 and 1992.

3. I declare the respondent is to continue to provide "special leave" for the complainant when she is absent from work due to stress or has an appointment with her counsellor where such circumstances genuinely arise from the complainant's experiences at the suburban branch where she was employed in 1991 and 1992. The complainant is to furnish psychological assessments to the respondent on request with the costs of such assessments to be met by the respondent.

4. I declare that should the complainant request it, the respondent is to make the necessary arrangements for the complainant to be transferred to another branch, and to meet the complainant's reasonable costs of such transfer.

Dated this 23rd day of January 1997.

Marion Brown

Hearing Commissioner