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Human Rights and Equal Opportunity Commission |
Sex Discrimination Act 1984 (Cth)
No.H97/9
BETWEEN:
Neena Adams
Complainant
AND:
Anthony Phillips
First Respondent
Robert Phillips
Second Respondent
Illawarra Tile & Slate Centre Pty Ltd
Third Respondent
Reasons for Decision of Michael Dodson
Inquiry Commissioner
Place of Hearing: Wollongong
Dates of Hearing: 10, 11 and 12 September 1997 and 8 and 9 December 1997
Date of Decision: 22 January 1998
Appearances: Mr Ray Moore of Counsel instructed by Maguire & McInerney for the Complainant
Mrs Susan Phillips for the First and Second Respondent
Mr Bruno Komel and Ms Karen Komel for the Third Respondent
Ms Susan Roberts as Counsel Assisting the Commission
1. INTRODUCTION
This is an inquiry by the Human Rights and Equal Opportunity Commission ("the Commission") pursuant to s.59(1) of the Sex Discrimination Act 1984 (Cth) ("the SDA").
The complainant, Ms Neena Adams, lodged a complaint with the Commission on 3 March 1996 alleging that Mr Anthony (Tony) Phillips (the first respondent) and his son, Mr Robert (Bobby) Phillips (the second respondent) had sexually harassed her whilst she was in the employment of the third respondent, Illawarra Tile & Slate Centre Pty Ltd ("ITS"). The complaint was referred pursuant to s.57(1) of the SDA on 12 December 1996 by the Sex Discrimination Commissioner to the Commission for inquiry.
The complaint was heard by the Commission on 10, 11 and 12 September 1997 and 8 and 9 December 1997 in Wollongong. At the conclusion of the evidence, the parties were directed to provide submissions in writing to the Commission. The submissions for the complainant were received by the Commission on 23 December 1997, the submissions for the first and second respondent were received on 23 December 1997 and submissions for the third respondent were received on 24 December 1997. Submissions-in-reply were received from the third respondent on 5 January 1998 and from the complainant on 9 January 1998. The first and second respondents did not provide any submissions-in-reply.
Mr Tony Phillips and Mr Bobby Phillips were represented pursuant to s.65(1)(b) of the SDA by Mrs Susan Phillips, who is the wife of Mr Tony Phillips and mother of Mr Bobby Phillips. ITS was owned by Mr Bruno Komel and Mrs Karen Komel at the time of the alleged unlawful conduct and was sold to Mr Mario Corda in July 1997. Mr and Mrs Komel appeared as agents for ITS pursuant to s.65(1)(a) of the SDA. Ms Susan Roberts, a Senior Legal Officer with the Commission, was appointed Counsel Assisting the Commission pursuant to s.68 of the SDA.
2. RELEVANT PROVISIONS OF THE SDA
The relevant provisions of the SDA are as follows:
"s.4(1). `contract worker' means a person who does work for another person pursuant to
a contract between the employer of the first-mentioned person and that other
person;
`employment' includes:
(a) part-time and temporary employment;
(b) work under a contract for services; and
(c) work as a Commonwealth employee;
...
s.14. (1) It is unlawful for an employer to discriminate against a person on the
ground of the person's sex, marital status, pregnancy or potential 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, pregnancy or potential 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.
...
s. 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.
...
s.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.
(3) It is unlawful for a person to sexually harass:
(a) a commission agent or contract worker of the person; or
(b) a person who is seeking to become a commission agent or contract worker of
the person.
(4) It is unlawful for a commission agent or contract worker to sexually
harass a fellow commission agent or fellow contract worker.
(5) It is unlawful for a partner in a partnership to sexually harass another
partner, or a person who is seeking to become a partner, in the same
partnership.
(6) It is unlawful for a workplace participant to sexually harass another
workplace participant at a place that is a workplace of both of those persons.
(7) In this section:
"place" includes a ship, aircraft or vehicle;
"workplace" means a place at which a workplace participant works or otherwise
carries out functions in connection with being a workplace participant;
"workplace participant" means any of the following:
(a) an employer or employee;
(b) a commission agent or contract worker;
(c) a partner in a partnership.
...
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."
3. THE COMPLAINT
Ms Adams is 26 years old. Ms Adams gave oral evidence at the inquiry and provided the inquiry with two statements.[1]
I propose to consider the allegations and evidence of Ms Adams and her witnesses chronologically and to include, where appropriate, the evidence given by the respondents and their witnesses. As a time frame was not given in relation to some of the allegations against Mr Komel and Mr Corda, I have included a list of those allegations and Messrs Komel and Corda's responses at the conclusion of the evidence that was given chronologically. I will then consider any additional relevant evidence given by the parties and their witnesses.
I received detailed evidence, documentation and submissions from the parties relating to the damage Ms Adams alleges she has suffered as a result of the alleged unlawful conduct. I will deal with these issues below.
3.1 Commencement of Ms Adams' employment at ITS
Ms Adams gave evidence that she commenced work at ITS in January 1995. Immediately prior to this, Ms Adams was working for BHP. Ms Adams said that her sister, Mrs Komel, and brother-in-law, Mr Komel, owned the business when she commenced work there. Her duties included liaison duties with Beechwood Homes ("Beechwood"), a client of ITS, sales and bookkeeping and answering the telephone. In cross-examination, Ms Adams was asked if she had a certificate in bookkeeping. She replied that she went to work for BHP prior to finishing a course of TAFE but had completed the bookkeeping module of the course.
Ms Adams stated that when she started working at ITS, Mr Corda and Mr Peter Wira were the other employees of ITS. Evidence was given by Ms Adams that Ms Adams and Mr Komel shared an office space and Mr Corda sat on the other side of a partition from them.
Ms Adams stated that there were a number of tiling sub-contractors who would frequently visit the premises of ITS. They included Mr Bobby Phillips, Mr Tony Phillips and Mr Matt Council. Ms Adams said in her first statement:
"At first I was aware of the fact that I was being noticed by the men in the place. They would stare a bit and then they started coming in my office and having their lunch breaks in there and spending a lot of time in there. I spoke to Bruno Komel because it was starting to irritate me. It was difficult to get on with my work when I was being interrupted all the time and also sometimes they were making so much noise in there I had difficulty hearing people on the telephone. Bruno was also getting annoyed about the fact that they were in my office all the time. I said words to the effect of, "I don't want them in there. Tell them to keep out and they will stay out". Bruno did speak to them but he did not seem to be able to speak to them in a forceful way."
Mr Komel gave evidence [2] that the sub-contractor tilers did not "hang around" the ITS premises but rather came in from time to time to purchase materials, pay accounts and receive job sheets. He denied being asked by Ms Adams to ask them to stay out of the office space.
3.2 The incident with Mr Matt Council
3.2.1 The evidence of Ms Adams
Ms Adams stated that in February 1995, she was walking to the front of the shop to deal with a customer. She said that Mr Council, a sub-contractor for ITS who was in the shop at the time, came up behind her and grabbed her bottom with both hands and lifted her up. She stated that she was "very angry and surprised...I turned around and said, 'What do you think you are doing Matt?' He just laughed. I was upset by the fact that he grabbed me and then didn't seem to think it was of any consequence and I went to see Bruno Komel". Ms Adams gave evidence that she complained to Mr Komel and apparently Mr Komel spoke to Mr Council the next day as Mr Council apologised to her and told her that it would not happen again. Ms Adams stated that she had nothing further to complain about in relation to the incident with Mr Council and it did not form one of the matters that Ms Adams claimed ITS was vicariously liable for.
Mr Selmo was a witness for Ms Adams and gave evidence orally and in two written statements.[3] that he was told by Ms Adams of the incident with Mr Council. Ms Serene Kent, also a witness for Ms Adams, gave evidence [4] that Ms Adams came home from work in February 1995 and told her that Mr Council had grabbed Ms Adams' bottom whilst she was serving a customer and "she seemed to be in a state of shock as she had never experienced this kind of behaviour in the work place before".
3.2.2 The evidence of Mr Council
Mr Council appeared as a witness for ITS and gave oral evidence only. Mr Council was a sub-contractor tiler for ITS at the relevant time. Mr Council gave evidence that in September or October 1995, he "pinched [Ms Adams] on the bottom with both hands". He denied that it was February 1995 when this incident occurred. He also denied that he lifted Ms Adams up in the air. Mr Council said that he did this when he was leaving the store and that "she just had a little scream and then I laughed and she laughed and that was it. I walked out the door". He said that there were no customers present at the time. Mr Council said that he did not believe Ms Adams was offended by the act and that he had seen her at ITS afterwards and interacted with her as they normally did.
Mr Council said that he was contacted about one month after the incident by Mr Komel who indicated that he had heard about the incident from Mr Corda and asked him what had happened and that Mr Council gave evidence that he never apologised to Ms Adams about the incident.
In cross-examination, it was put to Mr Council that he had made comments in relation to the incident during a telephone call to an investigator for QBE Insurance ("QBE") (the insurance company that is the respondent in a workers compensation claim Ms Adams has against ITS). It was put to Mr Council that he had admitted in a telephone conversation with the investigator that he had pinched Ms Adams on the bottom and "lifted her up" and that he had apologised to her. It was also put to Mr Council that he said to the investigator that Ms Adams used bad language in the workplace and that "she dressed too up-market". Mr Council denied speaking to anyone from QBE about the incident and furthermore denied having spoken to anyone about the incident other than Mr Komel.
3.2.3 The evidence of Mr Corda
Mr Corda gave evidence that he was at the ITS premises on the day of the alleged incident with Mr Council but went to the toilet. He saw Mr Council on his way out as he returned to his desk. He denied that there were any customers present at the time Mr Council was there. Mr Corda gave evidence that Ms Adams told him of the incident with Mr Council approximately four weeks after it allegedly occurred and that he then told Mr Komel of the alleged incident.
3.2.4 The evidence of Mr Komel
Mr Komel gave evidence that he spoke to Mr Council in October 1995 after he had been told about the incident by Mr Corda. Mr Komel said that he said to Mr Council that "it'd better not happen again". Mr Komel denied that Ms Adams had ever raised the matter with him directly.
3.3 The first incident with Mr Bobby Phillips
3.3.1 The evidence of Ms Adams
Ms Adams gave evidence that in June 1995 over a period of approximately three weeks she went out on a number of occasions with Mr Bobby Phillips and they had a sexual relationship. It was put to Ms Adams that the relationship actually started on 8 July 1995 and concluded on 29 September 1995. Ms Adams accepted that the relationship may have commenced in early July but denied that it concluded in late September 1995. Ms Adams said that after she terminated the relationship, Mr Bobby Phillips would ring ITS and be rude to her on the phone. She said that in August 1995, Mr Bobby Phillips rang up ITS and asked to speak to Mr Komel. When Ms Adams said that Mr Komel was not available, she alleged that Mr Bobby Phillips yelled at her to get Mr Komel;
"I said `Bobby, if Bruno was here I would tell you that he was here. He's not here'. And Bobby called me a `stuck up bitch' and he said `Look slug-holder just get him' and I said `Bobby he's not here' and then he said `Look you stuck up bitch' and then I hung up on him".
Ms Adams said that the term "slug-holder" was a term that Mr Bobby Phillips used from the start of her employment at ITS and he used it as a term in general speech to refer to women. Ms Adams also gave evidence that the term "slug-holder" was an expression used by the other people who worked with Mr Bobby Phillips as well. Ms Adams agreed in cross-examination that Mr Komel spoke to her and Mr Bobby Phillips about their conduct and that they had to get on in the workplace. Ms Adams agreed that Mr Bobby Phillips' conduct in this regard ceased.
Ms Kent gave evidence that Ms Adams told her of Mr Bobby Phillips calling her a "stupid bitch" and a "slug-holder" on the telephone when he would not believe that Mr Komel was not available.
3.3.2 The evidence of Mr Bobby Phillips
Mr Bobby Phillips gave evidence orally and in two written statements.[5] He stated that the relationship with Ms Adams commenced in early July 1995. He gave evidence that he terminated the relationship. Mr Bobby Phillips stated that after the relationship ended when he rang ITS to speak to Mr Komel:
"... she would say `Who is it?' and then make some smart remark or other. I became increasingly exasperated at this behaviour and on one occasion when I asked to speak to Bruno, she said `Who is it?' I became exasperated and said, 'You know who it is. It's Bobby.' She said, 'Why don't you just say who it is?' I said 'You know who it is. Just put me through to Bruno you stupid bitch'. Neena then hung up the receiver. I know that I lost my temper but I was exasperated. I tried to ring back and each time Neena answered the telephone she hung up. On the fourth time I telephoned I said `Hello. Is Bruno there?' and she put me through. I said to Bruno `Look Bruno, I've had enough of this. I'll take my business elsewhere.' The next day Bruno came to see me and said, `You can't talk to Neena like that on the phone. It doesn't matter what happens.' I said, `Fair enough'. "
Mr Bobby Phillips denied that he called Ms Adams a "slug holder" during this exchange on the telephone. Mr Bobby Phillips did give evidence that he "called [Ms Adams] a slug-holder when I went out with her". He stated that it was "just like a little nick name" for her. Mr Bobby Phillips gave evidence that it was an "affectionate thing towards" Ms Adams when they went out together and that that was the way in which Ms Adams took the comment. Mr Bobby Phillips denied that he ever called Ms Adams "a slug-holder" in her workplace of ITS. Mr Bobby Phillips said that after Mr Komel spoke to him and Ms Adams about their conduct there was not any further problem in relation to telephoning ITS.
3.3.3 The evidence of Mr Komel
Mr Komel gave evidence that he "was very annoyed that Neena and Bobby had bought their personal problems into the workplace". He gave evidence that he told Mr Bobby Phillips and Ms Adams that it had to stop and that it was not very professional. He gave evidence that once he had spoken to them individually, matters seemed to "calm down" between them.
Mr Komel also gave evidence in cross-examination that he spoke to Mr Tony Phillips about Mr Bobby Phillips' conduct over the telephone as he was worried about the effect that it was going to have on his business.
3.4 The first incident with Mr Tony Phillips
3.4.1 The evidence of Ms Adams
Ms Adams gave evidence that in August 1995, Mr Tony Phillips asked her to make some coffee for him whilst he was there with several other sub-contractors and a sales representative, Mr Paul McFadden. Ms Adams gave evidence that:
"When I turned to go and make the coffee, Tony Phillips patted me on the bottom and said 'There's a good girl'. I turned around and said 'Don't ever touch me again'. He laughed and said 'You like it' and when he said that he patted me on the bottom again. I got really angry and said 'Make it yourself' and left the area where they were and went and sat at my desk".
Ms Adams said that after Mr Tony Phillips had left the room, Mr McFadden said to her that she should not put up with that sort of behaviour and that she should talk to Mr Komel. Ms Adams said to Mr McFadden that she had spoken to Mr Komel about it. Ms Adams said that when Mr Komel came in she spoke to him about what had happened and she assumed that he spoke to Mr Tony Phillips because when Mr Tony Phillips came in a couple of days later he apologised to her but in what she described as being "a sarcastic tone of voice and I was certain that the apology was not sincere".
Mr Selmo and Ms Kent gave evidence that Ms Adams had told them of the incident when Mr Tony Phillips had touched her on the bottom.
3.4.2 The evidence of Mr Tony Phillips and other witnesses for the respondents
Mr Tony Phillips gave evidence orally and in two written statements.[6] In his first statement
he denies that this incident ever occurred and states that:
"I have never patted her on the bottom or touched her intentionally. The opening between the showroom and the office area is small and there may have been occasions when we have brushed each other in passing but I have never touched her intentionally."
Mr Tony Phillips was asked in cross-examination questions about the use of the word "intentionally" in the above statement. He confirmed that he never consciously touched Ms Adams on the bottom. A statement by the investigator from QBE was also put to Mr Tony Phillips where it is stated that he allegedly said, "that he could not recall ever having patted her on the backside but if he had it would have been in a friendly manner as he had known her since she was a child". Mr Tony Phillips gave evidence that much of what was contained in the investigator's report were things that he did not say to the investigator.
Furthermore Mr McFadden, a witness for the first, second and third respondents, gave oral evidence that he never witnessed an incident of this nature between Ms Adams and Mr Tony Phillips. Mr Komel also gave evidence that Ms Adams never reported this incident to him nor did he ever speak to Mr Tony Phillips in relation to it.
3.5 The incident with Mr Alan Boxall
3.5.1 The evidence of Ms Adams
Ms Adams stated that in September 1995, Mr Alan Boxall (a plumber who did work for ITS) whistled at her from his car when she was walking up the street in Wollongong. She stated that she turned around and glared at him and did not realise at first that it was Mr Boxall. Ms Adams said that the next day in the office, Mr Boxall apologised for what he did and said to Mr Komel "I wolf-whistled this girl yesterday and if looks could kill I'd be dead". Ms Adams said that Mr Komel said that Ms Adams did not like that sort of attention and "she is a feminist".
3.5.2 The evidence of Mr Boxall
Mr Boxall was a witness for the third respondent and gave oral evidence only. He gave evidence of wolf-whistling at Ms Adams in circumstances that generally accord with Ms Adams' evidence except that he stated that Ms Adams waved to him after first not appearing to recognise him. Mr Boxall states that it was not the next day but some time later that he went into ITS premises. Mr Boxall agreed that he made a comment as to "if looks could kill, I'd be dead" but denies apologising to Ms Adams. Mr Boxall could not recall Mr Komel being present at this time but does recall Mr Corda being there.
3.5.3 The evidence of Mr Komel and Mr Corda
Mr Komel gave evidence that he was never present when the conversation between Ms Adams and Mr Boxall took place and did not make the statements attributed to him by Ms Adams. Mr Corda gave evidence that he was present at the conversation between Mr Boxall and Ms Adams but that Mr Boxall did not apologise to Ms Adams and that Mr Komel was not present at that time.
3.6 The second incident with Mr Tony Phillips
3.6.1 The evidence of Ms Adams
Ms Adams gave evidence that in October 1995, at a time when the tilers where in her office, Mr Tony Phillips said to her "Neena what where you doing up Crown Street yesterday", Ms Adams stated that she was going up the automatic teller machine to get some money out. Ms Adams alleged that Mr Tony Phillips said "You are single and you were standing on the corner and I thought you were trying to make some extra money". When Ms Adams asked Mr Tony Phillips what he was insinuating, he laughed and replied that it was fairly obvious. Ms Adams gave evidence that Mr Komel entered the office and she said to him that he was going to have to get some control over the way that people spoke to her. Mr Komel replied "Well you were standing on the corner and you are single". Ms Adams asked Mr Komel if he was calling her a prostitute and he said that is not what he said. Ms Adams alleges that she said:
'Don't treat me as if I'm stupid Bruno that is exactly what they meant'. I said 'Would you allow them to speak to Karen or your daughters like that'. He said 'What do you mean?' I said, 'Would you let them call them a prostitute and slug-holder and other things'. He said, 'I don't think Karen would take offence like you'. I said, 'Bruno if you don't fix this I will fix it myself'. He said, 'What do you mean?'. I said 'I will fix it outside of here'. He said 'You are over reacting. You should calm down. They are just joking.' I said, 'I don't think their jokes are funny'. Bruno said 'I will go out and say something to them'.
Ms Adams gave evidence that shortly thereafter Mr Tony Phillips came back into her office and with a tile that had a drawing of a half naked mermaid on it and asked her whether she had been doing any modelling lately. Ms Adams said that she told Mr Tony Phillips to get out of her office.
Both Ms Kent and Mr Selmo gave evidence of Ms Adams telling them of this incident.
3.6.2 The evidence of Mr Tony Phillips
Mr Tony Phillips gave evidence that he said to Ms Adams that "I saw you in town last night all dressed up. Where were you off to?". He gave evidence that Ms Adams replied that she going to get some money from the "redi-teller" and that was the end of the conversation. He denied that he in anyway suggested that Ms Adams was a prostitute and said that she did not react adversely in front of him to their conversation. Mr Tony Phillips also denies that he made a comment to Ms Adams in relation to the tile with a drawing of a mermaid on it.
3.6.3 The evidence of Mr Komel
Mr Komel gave evidence that he recalled a conversation in which Mr Tony Phillips commented that he saw Ms Adams walking down the street one night. He stated that he was at the counter serving the tilers when the conversation occurred and that he did not arrive after the comment had been made as Ms Adams stated. Mr Komel stated that Ms Adams appeared to take offence from the comment and:
"...reacted virtually straight away as if, you know, they were implying something and then she just seemed to go sort of hysterical. I walked around into the office and said to Neena just to calm down, etc, etc and she said `You know what they're calling me' - blah, blah, blah - and I said, `No-one is calling you anything'. That's when she used the work "prostitute" and she made references to our children...and I said to Neena, `No-one was referring to anything'".
3.6.4 The evidence of Mr Bobby Phillips
Despite Ms Adams, Mr Tony Phillips and Mr Komel not giving evidence that he was present at this incident, Mr Bobby Phillips gave oral evidence that he was present at the time of the alleged incident. He stated that he heard his father say to Ms Adams "`Where were you off to?' and the next thing I know Neena is going off her brain". He stated that he did not hear his father say to Ms Adams, "You are single and you were standing on the corner and I thought you were trying to make some extra money".
It was put to Mr Bobby Phillips that as he had not mentioned his presence at this alleged incident between Mr Tony Phillips and Ms Adams in either of his statements and that no other witness placed him as being present then it was reasonable to assume that his evidence was a recent invention. Mr Bobby Phillips denied that this was the case.
3.7 The discussion about strippers
3.7.1 The evidence of Ms Adams
Ms Adams gave evidence that Mr Bobby Phillips discussed with the other tilers in her office going to the Shell Harbour Workers Club to watch strippers. She said that they were talking about the strippers bodies' and commenting on how the strippers were wearing G-strings. Ms Adams said that she did not want to hear about their night out and Mr Bobby Phillips replied "Oh, you are just cranky because you can't dance like that". Ms Adams stated that Mr Komel was present at the conversation and that Ms Adams told him that she wanted the men to hold the discussion somewhere else.
3.7.2 The evidence of the respondents
Mr Bobby Phillips denied having this discussion with Ms Adams and stated that he had never been to Shell Harbour Workers' Club to watch strippers. Mr Komel also denied being present at such a conversation. Mr Corda gave evidence that he was not present at any such conversation but remembers hearing some mention that some of the tilers had been to see some strippers at a builder's Christmas party but this had not been held at the Shell Harbour Worker's Club. He gave evidence in cross-examination that he does not remember who it was who said they had been to see the strippers and agreed that it could have been Mr Bobby Phillips and Mr Tony Phillips but said he did not recall.
3.8 The second incident with Mr Bobby Phillips
3.8.1 The evidence of Ms Adams
Ms Adams stated that she took some holidays over Christmas 1995 and returned to work on 2 January 1996. She stated that on the morning of 2 January 1996, Mr Bobby Phillips and Mr Shaun Williams were looking through a calender and that Bobby said something to the effect of "Where are all the slug-holders?". Ms Adams said that she told Mr Bobby Phillips that she could not stand the way he referred to women all the time. He replied "I wasn't calling you a slug-holder, slug-holder". She told Mr Bobby Phillips that she had spoken to Mr Komel about the way in which he spoke to her and that if Mr Komel was not going to do something about it then she was. Ms Adams alleges that Mr Bobby Phillips then said "Neena, women are second class citizens. The sooner you realise that the better. We will all be here longer than you". Ms Adams said that she told Mr Bobby Phillips and Mr Williams to get out and the two of them got up and left.
Ms Adams gave evidence that Mr Komel then came into the office at about 9.30am. She stated that Mr Komel spoke to her in relation to some "really minor things" that he alleged she had done incorrectly and that he had discovered while she was on holidays. After Mr Komel had made a telephone call, Ms Adams asked whether she could speak with him. She alleges that she said to Mr Komel "`I want to talk to you about Bobby again' and he rolled his eyes and went `Uh, what?' and I told him the conversation that had happened". Ms Adams alleges that she said:
" `I have spoken to you about this on a number of occasions and you keep saying you are going to fix it but you don't'. He said, `What do you want me to do? I have spoken to them'. I said, `Other people get sacked for this sort of thing'. He said, `I need the tilers. I will speak to them again.' I said `Bruno you have spoken to them already. Whatever it is you are doing you are not doing it right. I will have to fix it myself.' He said, `What do you mean. You will take legal action?' I said, `I will have to fix it'. He said, `If you aren't happy here you should just leave. I don't care'. I mentioned legal action again and he said, `Calm down Neena. I will go and talk to Bobby again'. I said, `None of them take you seriously. Whenever you talk to them nothing happens' ".
Ms Adams gave evidence that Mr Komel then left the office and she remained there for a couple of hours. She gave evidence that she went out for lunch and went to the City Pacific Hotel and spoke to her then boyfriend, Mr Selmo. She also spoke to Ms Val Miller who also worked at the Hotel. Ms Adams said that it was Mrs Miller who advised her that she should make a complaint of sexual harassment.
Ms Adams said that she then rang ITS and spoke to Mr Komel and said that she was not able to come back to work because she did not feel well. Mr Komel asked her if it had anything to do with what happened that morning with Mr Bobby Phillips and she said that she replied that she was very upset and would not be coming back on that day. Ms Adams alleges that Mr Komel then hung up on her. Ms Adams also gave evidence that in her last conversation with Mr Komel she asked Mr Komel whether she deserved what was happening to her and whether it was the way she was acting or something that she was saying. Ms Adams gave evidence that Mr Komel replied that it was not her fault and agreed with Ms Adams when she stated that she had only ever acted professionally especially with Mr Bobby Phillips.
Ms Adams gave evidence that the next day, 3 January 1996, she saw a Dr A. Rajapaksa who gave her a medical certificate (that was Exhibit C4 in these proceedings) and advised her to go and see a counsellor.
Ms Adams also lodged a claim pursuant to worker's compensation legislation against ITS on 6 January 1996 and alleged that Mr Komel had been obstructionist in its processing, an allegation that Mr Komel denied.
Ms Adams gave extensive evidence that following her ceasing employment at ITS on 2 January 1996, she suffered from anxiety attacks, found it difficult to sleep and cried continuously. Ms Adams also gave evidence that she lost weight and developed allergies. Ms Adams stated that she also had to cease her part-time work at a nightclub known as the Cotton Club because of the way she was feeling and that she was unable to recommence any form of employment until June or July 1996 and until then she was in receipt of sickness benefits.
Ms Adams gave detailed evidence in relation to her lack of employment opportunities after the alleged incident on 2 January 1996 and her physical and emotional reaction to that incident. These matters go to the question of damages which I deal with later in these reasons.
3.8.2 Evidence of Mr Selmo
Mr Selmo gave evidence that Ms Adams visited him at his office on 2 January 1996 and burst into tears and told him that:
"Bobby Phillips and another tiler was sitting in Neena's office reading a magazine and referred to women as `slug holders'. When Neena told them that she was uncomfortable with what they had said they replied by calling Neena a 'slug holder'. Neena was also referred to as a second class citizen. Neena approached Bruno but he told her that if she wasn't happy that she should leave".
Mr Selmo stated that he asked a colleague of his, Ms Miller, to come into his office and speak with Ms Adams.
Mr Selmo stated that after Ms Adams had rung Mr Komel from his office and gone home, he went to the ITS premises. Mr Selmo gave evidence that he and Mr Komel had the following conversation:
"I went in and spoke to Bruno and I asked him what was going on and he said he didn't know what I was talking about. I said, `I'm talking about Neena and sexual harassment,' and he said, `I don't know what you're talking about,' and I said, `Well, I've got a very distressed person in my office that is claiming that she's been sexually harassed. What are we going to do about it?' and he said, `I don't know what you're talking about.' So I said, `Basically, you know, it's a responsibility as an employer to address situations that arise in terms of sexual harassment,' and I'm aware of those because I was working in the business where I was sort of open to management - so basically I just said, `Mate, you know, you're going to have to do something otherwise we'll have to get the Sexual and Discrimination Board involved,' and he said, `I don't know what you're talking about,' and I left."
Mr Selmo agreed that he was upset at the time and that this was due to hearing over time from Ms Adams of the various incidents that had been occurring at work and he was angry because he cared for her.
In Exhibit C10(1), Mr Selmo refers to visiting Mr Komel again in May 1996 "to try and encourage him to try to and resolve the situation". Mr Selmo agreed in his oral evidence that he was accompanied by someone on this occasion but denies that he threatened Mr Komel.
3.8.3 Evidence of Ms Miller
Ms Miller gave evidence orally and in the form of a written statement.[7] Ms Miller gave evidence that in or about early January 1996, Ms Adams arrived at the City Pacific Hotel "extremely upset. She was very very emotional and very very distraught". Ms Miller gave evidence that Ms Adams told her that people in the office were saying things to her "that she was a slug-holder, a pistol holder". Ms Miller stated that several people in the office used those terms and quite often it was her boss, the person who employed her. She said that Ms Adams identified this person as being her brother-in-law. Ms Miller said that she suggested to Ms Adams that she seeks some professional advice in relation to her concerns and that she go to the Anti-Discrimination Board or somebody that would be able to help her.
Ms Miller was certain that one of the words that Ms Adams complained of being used in the workplace was "pistol holder". Ms Adams denied in re-examination by Counsel Assisting that she had told Ms Miller that the word "pistol holder" was used in the work place.
3.8.4 The evidence of Mr Bobby Phillips
Mr Bobby Phillips gave evidence that on the morning of 2 January 1996, he and Mr Williams were sitting in the ITS premises having visited there to pick up some tiles that Mr Tony Phillips had asked Mr Bobby Phillips to lay whilst he was on holidays. Mr Bobby Phillips stated that they were looking through a calender produced by the local service station. Mr Bobby Phillips gave evidence that:
"Shaun was flicking through it and said to me `Where's all the slug-holders Bob?', Neena Adams apparently overheard this and said to Shaun `What did you say?'. I said, `We weren't talking to you'. Shaun then repeated what he had said. Neena said `You can't talk like that'. Both Shaun and I said `What do you mean'. She said, `I will make sure you can't come into this office'. Mr Bruno Komel then came in. We had been waiting for him to provide us with some documentation. He said, `Here's the job address. Off you go'. Shaun and I then left and that's the last time I've spoken to Neena Adams. I deny the remainder of the conversation as related by Neena. I never said to her, `Women are second class citizens' etc".
Mr Bobby Phillips gave evidence that on that same day Mr Komel came out to the job site where Mr Bobby Phillips and Mr Williams were working. Mr Bobby Phillips stated that Mr Komel asked him if he called Ms Adams a "slug-holder". Mr Bobby Phillips said that he denied doing so and that Mr Williams stated that "there was nothing in it" and that they had been looking at a calender. Mr Bobby Phillips states that Mr Komel said "It doesn't matter. You can't talk like that or we will get sued one day" Mr Bobby Phillips gave evidence that both he and Mr Williams said "Fair enough".
I will consider the evidence relating to why Mr Bobby Phillips was at ITS that day in more detail below.
3.8.5 The evidence of Mr Williams
In an undated statement to the Commission,[8] Mr Williams stated that it was he and not Mr Bobby Phillips who said in a "joking manner" the comment in front of Ms Adams in relation to "slug-holders". Mr Williams did not give oral evidence and was not required by the complainant for cross-examination at the Inquiry.
3.8.6 The evidence of Mr Komel
Mr Komel's evidence in relation to the incident on 2 January 1996 is that during Ms Adams' Christmas break he had discovered numerous mistakes that Ms Adams had made in relation to her work. He stated that he saw Mr Bobby Phillips and Mr Williams arriving and told them to make themselves some coffee whilst he opened up the ITS premises. He stated that he saw Mr Bobby Phillips and Mr Williams with Ms Adams and there did not appear to be a problem between them. Mr Komel gave evidence that after Mr Bobby Phillips and Mr Williams left he spoke to Ms Adams at length about his displeasure with her work performance. He believed that he spoke to her for about an hour. Mr Komel said that after two hours had elapsed (Mr Komel agreed in cross-examination that it could have been shorter than this) Ms Adams approached him and said that she wanted to talk to him about Bobby:
"I said, `What about Bobby?'. She said, `Bobby called me a slug-holder'. I said, `A what?'. Neena then looked at me and pulled a face. I said, `So he called you this did he?'. Neena said, `No. He implied it.' I said, `Did Bobby say you were a slug-holder or did he not?'. She said, `He implied it but anyway he said all women were second class citizens'. Neena then said, 'You don't do anything about the sub-contractors. They are always giving me a hard time'. I said, `It's not true. I've always investigated any references you have made and most of the problems have been brought about by your own problems especially your relationship with Bobby'. She said, `Well if you don't do something about it I'm going to take matters into my own hands'. I said, `Well what? Are you going to ring the Police are you?'. She then just laughed and I said, `Well I want to see Bobby and I'm going to sort this out'."
Mr Komel said that he then left the ITS premises and drove to where Mr Bobby Phillips and Mr Williams were working. He states that Mr Bobby Phillips and Mr Williams informed him that the use of the word "slug-holder" had not been directed at Ms Adams. Mr Komel said that he told them that "it doesn't matter and that they can't say those sorts of things".
Mr Komel gave evidence that when he returned to ITS premises, Ms Adams was not present and that Mr Corda advised him that she had gone for lunch. Mr Komel gave evidence that after approximately two hours Ms Adams had not returned and he received a telephone call from her and she said that she was too ill to return to work. Mr Komel said that he asked Ms Adams what was wrong and said to her that if it was to do with Mr Bobby Phillips then he had already been up to see him and spoken to him about it. Mr Komel stated that Ms Adams did not reply. He asked her if she was going to be a work the next day. Again there was no reply and Mr Komel said that he hung up.
Mr Komel stated that approximately ten minutes after the phone call, Mr Selmo arrived at the ITS premises. Mr Komel explained to Mr Selmo the reason for reprimanding Ms Adams earlier that morning. Mr Komel stated that he also told Mr Selmo of the problems Neena had experienced that morning with Mr Bobby Phillips. He stated that Mr Selmo would not let him explain what had happened but rather said the following words:
'Have you ever heard of the words sexual harassment?' I said 'Yes'. He said 'Well your gone pal'. I said 'You've got to be joking'. He said `I employ three hundred people and I know what's required by the law. She is now on stress leave as of now'.
Mr Komel stated that Mr Selmo then said:
'We've got you. We are going to sue you for everything you've got. You had better get yourself a good lawyer. We've got evidence written down for the last six months and tape recordings of you harassing her and demonstrating the way you speak to her. The only thing is you can't do anything about it and I'm going to make sure that your business goes under'.
Mr Komel gave evidence that he never said to Ms Adams, as she alleges, that the situation between her and Mr Bobby Phillips was not her fault. Mr Komel agreed that she had previously said to him that she had acted professionally with Mr Phillips and that he had agreed with her that this was the case after he had spoken to her and Mr Bobby Phillips about their behaviour on the telephone.
Mr Komel gave evidence that on 16 May 1996, Ms Adams telephoned him and said to him "You are basing everything on a lie. If you don't change your statement I am going to tell everybody about what you've been doing".
Mr Komel also gave evidence that the following day on 17 May 1996, Mr Selmo and another male came to ITS premises and, in front of customers, Mr Selmo said to him "if you don't change your story we'll take you all the way and you will regret it. You have to see Neena and she has some terms and conditions for you to agree to or else".
3.8.7 Evidence of Mr Corda
Mr Corda gave evidence that he was outside the office for part of the time that Mr Bobby Phillips and Mr Williams were in the premises on 2 January 1996. He gave evidence that when he came into the office on the morning of 2 January 1996, he overheard Mr Bobby Phillips, Mr Williams and Ms Adams speaking about their Christmas break. He gave evidence that after Mr Komel spoke to Ms Adams about some errors in her work, Ms Adams complained to Mr Komel about Mr Bobby Phillips and Mr Williams calling her a "slug-holder" and that Mr Komel left the ITS premises to speak to them.
Mr Corda gave evidence that after Mr Komel left, he and Ms Adams did some displays together and "she was fine". Mr Corda stated that at between 11.00 am and 12.00 noon, Ms Adams said she was going to do the banking and left the premises. Mr Corda stated in cross-examination that he was not aware if Ms Adams took the banking bag with her nor did he subsequently check if the bag was gone.
Mr Corda also gave evidence that he was present when Ms Adams rang Mr Komel that afternoon and that he was present when Mr Selmo visited the premises and supported the account of the visit given by Mr Komel.
3.9 Allegations against Mr Komel
In addition to the allegations above, Ms Adams made several allegations in relation to the conduct of Mr Komel during her employment at ITS. The majority of these allegations were given without a particular time-frame for their alleged occurrence. For convenience, I have set out below, each allegation and the response of Mr Komel in relation to those allegations. Ms Adams alleges that Mr Komel:
(a) Ms Adams gave evidence that when she once asked Mr Komel to explain something to her, she alleged that Mr Komel replied "Are you stupid? Can't you work it out for yourself... do you have a learning disorder what's it called dyslexia... well do you... do you have dyslexia".
Ms Adams alleges that she said to Mr Komel "What do you think Bruno, you know that I don't have a learning disorder, I do have a problem with you throwing me work and expecting me to just know how to do it when I've never do it before. It takes two minutes to show and I resent you speaking to me the way your are". Ms Adams gave evidence that Mr Komel then said to Mr Corda that she was a "drama queen".
Ms Adams gave evidence that the next morning she said to Mr Komel that she did not want him to speak to her like that again and that Mr Komel subsequently said he was sorry that he had upset her.
Mr Komel denies that he ever called Ms Adams "stupid". Mr Komel gave evidence in relation to the allegations that he called Ms Adams "dyslexic" and "suffered from a learning disorder" that during Ms Adams' employment, he "sort of thought maybe she had problem with a learning disorder of some description" given that he was finding during Ms Adams' term of employment that there were continuous mistakes in her work such as "bank entries that were sort of doubled up, adding up that didn't quite work out... it was like a continuation of the same mistake over and over again and I couldn't understand why that was the case. that might understand (sic) why this was so". He gave evidence that he did ask her "Are you having trouble?". Mr Komel gave evidence that Ms Adams became upset at his comment and he stated that he "felt pretty bad about that because she really - she got very upset and I realise that she'd taken offence to it... I apologised to her the next day if I'd sort of said anything that was not - you know, because she was very upset, yes, about that particular counselling session that we'd had."
(b) made the comment to Ms Adams "oh, you only just passed your HSC didn't you?";
Mr Komel denies ever making this statement to Ms Adams.
(c) said that Ms Adams was engaged in a lesbian relationship with her flatmate, Ms Serene Kent, and at other times implied that Ms Adams was gay;
Mr Komel denies every having made such a statement or implying that Ms Adams was gay.
(d) that Mr Komel said to Ms Kent that she had a sexy voice and asked her personal and inappropriate questions:
Mr Komel denies ever making this statement to Ms Kent.
(e) asked Ms Kent if she was a feminist as much as Ms Adams and said that she and Ms Adams should be in a sexual relationship with each other because no men could put up with them;
Mr Komel denies ever making this statement to Ms Kent.
(f) said that Ms Adams "would get a fat bum like her sister if she kept eating";
Mr Komel denies ever making this statement to Ms Adams.
(g) participated in the drawing of an elephant on wall of the ITS premises with an arrow pointing to the rear of the animal above which the words were written, "Neena's custard arse". Ms Adams' evidence in relation to this drawing is slightly confusing. In her written statement that is Exhibit C12, she states that at a time when Mr Bobby Phillips was in her office with Mr Komel and "some kids he had working for him", "they" drew a picture of an elephant on the wall at the back of the premises where the customers walked in with an arrow pointing to its backside and the above caption.
In cross-examination, Ms Adams stated that she did not know who drew the drawing and stated that "I have no idea who it was. I still don't know who it was but it was drawn and it was left up there for several weeks".
Mr Komel denies participating in the drawing of the elephant and further denies ever having seen the drawing at the ITS premises. I refer to Mr Corda's evidence in relation to this matter below.
(h) frequently called her "a bludger" for taking her lunch break;
Mr Komel denies every calling Ms Adams "a bludger".
(i) forced her to stay back without pay;
The only evidence Mr Komel gave in this regard was that all the staff had to stay back one night to complete the stock take. He gave evidence that the stock take was finished at 7.30pm.
(j) accused her of trying to "seduce the tilers";
Mr Komel denies every accusing Ms Adams of seducing the tilers.
(k) implied that she was "overdressed" for her job;
Mr Komel denied that he implied that Ms Adams was overdressed and gave evidence that at one stage he tried to get Ms Adams and Mr Corda to wear a uniform "because I thought the clothes that she wore might get, you know, damaged or get dirty or whatever, because it just seemed too good clothing to wear in our workplace."
(l) stated that her job "could be better done by a man";
Mr Komel denied that he said this to Ms Adams. He stated that there was an incident when had told Ms Adams not to pick up heavy bags of grout as he was concerned that she might injure herself.
(m) stated that "if she did not like it here (at ITS) she could leave;
Mr Komel denied that he ever made this statement to Ms Adams.
(n) told members of Ms Adams' family she tried to seduce him and others;
Mr Komel denies that he ever made this statement or statements to members of Ms Adams family.
(o) permitted discussions within her hearing between himself and other men as to the sex lives of their wives and girlfriends;
That Mr Komel denies this allegation.
(p) told her that she was "enticing the men" and;
Mr Komel denies this allegation.
(q) told her that she had an "attitude problem".
Mr Komel denies this allegation.
(r) once said to Ms Adams when she arrived at work in a good mood that "he didn't see what I had to be so happy about and he didn't know why I was so confident about myself".
Mr Komel denies this allegation.
(s) engaged in discussions in front of Ms Adams with Mr Bobby Phillips about strippers, their breasts and that they wore G-strings.
Mr Komel denies this allegation.
3.10 Allegations against Mr Corda
Ms Adams made several allegations in relation to the conduct of Mr Corda. Ms Adams said that Mr Corda sat in the front area of the shop approximately three to three and a half metres from Ms Adams with a divider or counter between them. I have provided below a list of Ms Adams' allegation in relation to Mr Corda and the response given by Mr Corda in relation to those allegations. Ms Adams alleges that Mr Corda:
(a) asked her on numerous occasions when she came into work in a good mood "Oh, did you get a bit last night?";
Mr Corda denies ever making this comment to Ms Adams.
(b) would say to customers in relation to Ms Adams, "Oh, you mean the girl in the skirt? Don't worry about her, she just answers the phone" and "Neena! She is just the girl in the office" and yell across the room in front of customers that Ms Adams was "a woman and just bear with her";
Mr Corda denies this allegation by Ms Adams.
(c) would refer to her as being the "office witch" or "office dragon";
Mr Corda gave evidence that he once made a comment to Ms Adams when she was pretending to "ride a broom" as she swept the floor of the ITS premises that "you've got a lift home tonight". He stated that it was a joke and Neena "giggled" at his comment. Furthermore Mr Corda gave evidence that he once called Ms Adams a "dragon" after he heard her pursuing a customer who had not paid their account with ITS.
(d) once commented "Oh, you don't wear a G-string" when Ms Adams' wore pants that showed the line of her underwear;
Mr Corda denies ever making this comment to Ms Adams.
(e) early in Ms Adams' employment with ITS, Mr Corda was once talking to Mr Komel about women in the Navy and said that "All Navy women should be raped and left bleeding in the gutter". Ms Adams stated that she objected to him speaking this way and Mr Komel asked him to stop talking like that and Mr Corda apologised and said to her "I will have to be careful about how I speak";
Mr Corda denied saying the words attributed to him by Ms Adams in relation to the above incident. He gave evidence that he was once dealing with a customer on the telephone who was unhappy with her selection of tiles from ITS. Mr Corda gave evidence that after he hung up the telephone, he said words to the effect of "fucking bitch". Mr Corda gave evidence that Ms Adams said to him "You should stop swearing" and that Mr Komel spoke to him about his bad language and he apologised to Ms Adams.
Mr Corda gave evidence in cross-examination that he "had a little problem with [the Navy] when I had a business to do with the Navy". A paragraph of Mr Komel's statement (the one that is undated) where Mr Komel states that "I do recall Mario making some comment about Naval women which I objected to" was put to Mr Corda and he said that he recalls Mr Komel speaking to him about his comment but denied he said what was alleged by Ms Adams.
Mr Komel gave evidence that it was his belief that the woman Mr Corda had been speaking to on the telephone was in the Navy and that he did mention the word "Navy" and that Mr Komel objected to his swearing. Mr Komel denied he heard the comment about Navy women being raped and left in the gutter.
(f) would say that she was stupid;
Mr Corda denies this allegations.
(g) made false comments about Ms Kent, being gay and being in relationship with Ms Adams and asked Mr Kent if she and Ms Adams were lesbians;
Mr Corda gave evidence that he once commented to Ms Adams that Ms Kent's voice was "husky and quite sexy". He stated that Ms Adams said, "No good to you, she's gay" and that both Ms Adams and Ms Kent led him along in believing this until they told him it was joke. Mr Corda denies that he ever asked Ms Adams if she and Ms Kent were in a lesbian relationship.
(h) once said to Mr Komel in relation to Ms Adams that "You should not have a woman doing a man's job".
Mr Corda conceded in cross-examination that he said words to the effect of certain work being "a man's job". He did give evidence that it was in relation to an incident when Ms Adams complained of a sore neck and mentioned that she hurt it picking up a bag of grout. Ms Adams "got stroppy" when she was told not to lift heavy bags that were over 15 kilograms.
(i) made comments that Ms Adams was a bludger;
Mr Corda denies this allegation.
(j) that Mr Corda participated in the making of "extremely off-colour" jokes and would then say "Watch Neena react" or if Ms Adams did not react, he would say "Are you awake in there Neena" and make constant derogatory remarks about women.
In Ms Adams first witness statement, she stated that is was "they" who participated in the above conduct. In her cross-examination, she identified these people as being Mr Tony Phillips, Mr Bobby Phillips and Mr Corda.
Mr Corda denied these allegations.
(k) drew an elephant on the wall of the showroom with caption, "Neena's custard arse".
Mr Corda agrees that he drew a "picture of an elephant with...a Taj Mahal type of thing" on a display wall in the storeroom at ITS premises. He said that he drew it when he and an Indian customer were talking about the Taj Mahal. Mr Corda denied that it had such a caption on it.
Mr Corda gave evidence in response to questions in cross-examination that he and Ms Adams "never got along...we always fought". He stated that "we argued a lot but not actually fought to the point of calling each other names and throwing things at each other, but we did argue a lot".
Mr Komel gave evidence that he was never aware of "a lot of friction with Mario and Neena...they used to joke and laugh".
3.11 Evidence of Ms Adams' work performance at ITS
3.11.1 The evidence of Ms Adams
Ms Adams gave evidence that she was not given any training for her position at ITS and that she had never worked in the tiling business before. She gave evidence that she had not been told how to do the tax and superannuation for sub-contractors and that she did not find Mr Komel very easy to approach for assistance. She gave evidence of one incident where Mr Komel reprimanded her in front of customers for advising them to select tiles that were too large for the intended purpose. Ms Adams said that Mr Komel later yelled at her and said "You should know that" and that Ms Adams replied, "...I've never been trained for anything".
Ms Adams agreed in cross-examination that this statement was not entirely accurate in that "I had to instigate it [the training] and then it was... it wasn't really training. I suppose [Mr Komel] showed me a few things when I asked". Ms Adams also agree that she had received some training as to how ITS did their books.
3.11.2 The evidence of Mr Komel
Mr Komel gave evidence that Ms Adams had worked for ITS on Saturdays casually prior to commencing work at ITS in January 1995. He stated that she received training in sales and tiling and that she was taken to an on-site tiling job so she could have an understanding of what happened. He denies that the above incident occurred.
Mr Komel gave evidence that he gradually introduced Ms Adams to things she had not done before, such as the debtors and creditors but Ms Adams appeared to have difficulty with the accounting aspect of her job. In addition to his evidence given as shown in para. 3.9(a) above, he stated that whilst she had a very good telephone manner and the customers liked her, "she had a lot of difficulty with mathematics, numerals and putting things together...even the banking seemed to be quite a problem". Mr Komel stated that he kept on thinking that she would improve but she did not. He gave evidence that he had to repeatedly tell her how to do things. He also gave evidence that she began to spend more time on the telephone and Mr Corda had complained to him that he was doing the job of two people and implied that Ms Adams was getting way with things because "she was family".
Mr Corda also gave evidence that Ms Adams did not assist him in some of his tasks and that when he asked for help to keep clean up the showroom, she would not respond.
3.12 Ms Adams' change in demeanour and appearance
3.12.1 The evidence of Ms Adams and her witnesses
Ms Adams gave evidence that she became increasingly depressed about her job and did not want to come out of her office to do sales or any other task. She gave evidence that she had eating problems whilst she was at ITS and at night time would get stressed and not want to eat. She gave evidence that when there was an incident at work she would not want to eat and could not sleep. Ms Adams and her witnesses also gave considerable evidence in relation to her state of physical and emotional health after she left ITS. As I stated above, I will deal with the issue of damages later in this decision.
Mr Selmo gave evidence that he became concerned as to Ms Adams' state of health at the end of December 1995 as she was more reluctant to go to work. He said that she stopped wearing makeup and "instead of her conservative jackets and formal type attire that she has, she started to wear more sort of like baggier clothing, jumpers and things like that".
Ms Kent gave evidence that in the months after June 1995, she noticed a change in Ms Adams:
"...she no longer made an effort with her appearance - often opting to wear much more casual clothes than she normally wore.. she paid little attention to her hair and makeup. Neena would often come home from work complaining that she felt emotionally exhausted and would often show signs of exhaustion and anxiety"
There was also conflicting evidence as to Ms Adams' appearance on her last day at work at ITS on 2 January 1996. Mr Selmo and Ms Miller gave evidence that Ms Adams was wearing pants, a top and a jacket and Ms Miller gave evidence that she was not wearing any make up. Mr Komel gave evidence that Ms Adams was wearing a skirt and jacket and had make up on when she was at ITS premises on 2 January 1996.
As I noted at the hearing, however, this conflicting evidence could be explained by the fact that Ms Adams could have changed between leaving ITS and going to the City Pacific Hotel but I note that Ms Adams did not give evidence to this effect. Regardless, I do not find this matter to be particularly critical in terms of any of the witnesses' credibility.
3.12.2 The evidence of the respondents and their witnesses
Mr Bobby Phillips, Mr Tony Phillips and Mr Komel gave evidence that they did not notice any change in Ms Adams' appearance during her employment at ITS.
There was a slight conflict of evidence, however, in relation the views of Mr Tony Phillips and Mr Bobby Phillips in relation to style of Ms Adams's dressing: Mr Bobby Phillips gave evidence that she wore "daggy clothes" whereas Mr Tony Phillips stated that she always wore "night club clothes" and that she was "overdressed...skimpy dresses, skimpy tops".
Mr Komel gave evidence that there was no change in Ms Adams' appearance and she "was always well-dressed, always groomed her hair, always had make-up, always looked well presented" and Mr Corda described her appearance as "perfect".
3.13 Ms Adams' behaviour at work
In response to the evidence of Ms Adams that there were off-colour jokes made in the workplace and language used that offended her, the respondents and their witnesses gave evidence as to Ms Adams' behaviour in the workplace. They allege that this included:
(a) swearing;
(b) using the expression "eat me" which she then changed to "eat my shorts" when Mr Komel complained about the use of the expression;
(c) that she commented to Mr Bobby Phillips that she was "sliding off her chair" when Mr McFadden walked past her.
Ms Adams denied all these allegations. I do not consider it necessary to make a finding in relation to Ms Adams' behaviour in the workplace as I am of the view that other than in extreme cases where sexual harassment is allegedly entirely and unequivocally "invited" by the complainant, the behaviour of the complainant is not relevant to determining if specific incidents of sexual harassment occurred or not.[9]
3.14 Evidence of Ms Linda Bott
Ms Bott was a witness for the respondents. She gave evidence relating to matters that she believed indicated that Ms Adams' complaint was motivated by Ms Adams and Mr Selmo seeking a large damages payment from ITS and Mr Bobby Phillips and Mr Tony Phillips. Most of Ms Bott's evidence relates to events after 2 January 1996 and as I have stated above, I am not minded to consider those issues until I have considered the respondents' liability.
I should add though that evidence was given by Mr Selmo as to Ms Bott's motivation for seeking to be a witness for the respondent. I am of the view that any motivation aside, Ms Bott's evidence is of little or no use in assisting me to determine if Ms Adams' complaint is substantiated.
4. THE SUBMISSIONS OF THE PARTIES
The representatives for the parties in this matter provided me with very thorough, comprehensive and helpful submissions and I appreciate the assistance that they have given me. I also appreciate the assistance that all the parties' representatives have provided to me in the presentation of the parties' cases.
By way of summary, the submissions for the complainant state that:
(a) the allegations against Mr Tony Phillips, Mr Bobby Phillips, Mr Komel and Mr Corda amount to sex discrimination pursuant to s.28A of the SDA;
(b) that the evidential onus of proving that Mr Tony Phillips and Mr Bobby Phillips were not workplace participants of ITS fell upon those respondents as the contention was raised by way of a defence to the complaint;
(c) that insufficient documentary evidence was produced by Mr Tony Phillips and Mr Bobby Phillips and ITS to discharge the onus of proof and to support the proposition that they were not workplace participants of ITS;
(d) that Mr Tony Phillips and Mr Bobby Phillips were within the jurisdiction of the SDA when they allegedly sexually harassed Ms Adams and that ITS maybe liable for the sexual harassment pursuant to s.105 or s.106 of the SDA;
(e) Mr Komel and Mr Corda sexually harassed Ms Adams in the course of her employment with ITS;
(f) ITS is vicariously liable for this sexual harassment; and
(g) that the conduct of the respondents also amounts to discrimination against Ms Adams on the grounds of her sex (as in the imputation that she was a lesbian) and marital status (in the suggestion that as a single woman she was allegedly engaged in prostitution).
Counsel for Ms Adams indicated many instances where the evidence of Ms Adams was different from the evidence of the respondents and their witnesses. Counsel for Ms Adams accepted that this matter is one to be determined upon findings as to credit: that is given that the evidence given by each parties witnesses differ so significantly it is a question for me to determine whose version of the events that I believe.
The submissions of the first and second respondents and the third respondent are, in summary, that:
(a) Mr Tony Phillips and Mr Bobby Phillips deny that they ever sexually harassed Ms Adams;
(b) Mr Tony Phillips and Mr Bobby Phillips were not in a contractual relationship with ITS as required by s.28B of the SDA but rather at the times of the alleged incidents Mr Tony Phillips and Mr Bobby Phillips were customers of ITS rather than sub-contractors or work place participants;
(c) it follows that ITS is not liable for any actions of Mr Tony Phillips and Mr Bobby Phillips;
(d) Mr Komel and Mr Corda deny the allegations made by Ms Adams in relation to them and submit that there was no conduct by them that comes within s.28A of the SDA; and
(e) it follows that ITS is not vicariously liable for any conduct.
The submissions for the third respondent indicate differences between Ms Adams' evidence and the evidence of the respondents' witnesses and indicate where the respondents' witnesses have given consistent evidence in relation to particular matters.
5. FINDINGS
As all the parties appear to have accepted, this matter is very dependent on the credibility of the parties and their witnesses.
As a general comment, I can say that I found Ms Adams a more credible witness than either Mr Tony Phillips or Mr Bobby Phillips. I found Mr Tony Phillips to be vague and evasive in some of his evidence. I found Mr Bobby Phillips to be an singularly unimpressive witness who appeared slovenly in the witness box, contemptuous of the Commission, its processes and the Counsel for Ms Adams, and seriously lacking in credibility (particularly in his claims to have been present at the incident where his father allegedly insinuated that Ms Adams was a prostitute).
As will be seen below, in relation to the allegations against Mr Komel, I preferred Mr Komel's evidence or his explanation of events to that of Ms Adams. I was of the view that Ms Adams was mistaken or incorrect in some of the allegations that she made against Mr Komel and that there may have been some confusion as to whether Mr Komel was present at particular incidents or whether it was Mr Corda or Mr Komel who had said certain things.
With regard to Ms Adams' allegations against Mr Corda and my findings below, I have accepted some of Ms Adams' evidence in preference to that of Mr Corda but in other cases, particularly where there was evidence of Mr Komel that I have accepted, I have preferred Mr Corda's version of events.
I am required to make findings in relation to Ms Adams' allegations which can be divided into the following categories:
(a) allegations against Mr Tony Phillips relating to incidents where it is alleged that he sexually harassed Ms Adams;
(b) allegations against Mr Bobby Phillips relating to incidents where it is alleged that he sexually harassed Ms Adams;
(c) allegations that ITS is vicariously liable for the actions of Mr Tony Phillips and Mr Bobby Phillips;
(d) allegations against Mr Komel relating to incidents where it is alleged that he sexually harassed Ms Adams;
(e) allegations against Mr Corda relating to incidents where it is alleged that he sexually harassed Ms Adams;
(f) allegations that ITS is vicariously liable for the actions of Mr Komel and Mr Corda in sexually harassing Ms Adams and discriminating against her on the ground of her sex or marital status; and
(g) allegations that ITS is primarily liable for sex discrimination in subjecting Ms Adams to a detriment in her employment: namely, exposing her to a hostile working environment.
Before I can consider the allegations raised in (a) and (b), I must determine if Mr Tony Phillips and Mr Bobby Phillips come within one of the categories of persons whose alleged unlawful conduct is subject to the jurisdiction of the SDA. Furthermore, it is only if they are within the jurisdiction of the SDA that the question of ITS' liability for their alleged behaviour arises.
5.1 Are Mr Tony Phillips and Mr Bobby Phillips within the jurisdiction of the SDA?
I disagree with the submission by Counsel for the complainant that the onus is on the first and second respondents to prove that they were not workplace participants as defined by s.28B of the SDA. It is well accepted that the onus is on the complainant in complaints of sexual harassment to prove on the balance of probabilities that the alleged harassment occurred.[10]
This requires not only establishing that the harassment is within the definition of s.28A of the SDA but that the alleged act or acts were performed by persons who are within the jurisdiction of the SDA. In order for Ms Adams to establish her complaint against Mr Tony Phillips and Mr Bobby Phillips, she must prove that they are persons who are covered by the provisions of s.28B of the SDA.
Therefore, the onus is on Ms Adams to establish that Mr Tony Phillips and Mr Bobby Phillips were workplace participants or contract workers in order to establish her complaint rather than the onus being on them to establish that they were not.
In order for either or both Mr Tony Phillips and Mr Bobby Phillips to be within the jurisdiction of the SDA in relation to the alleged harassment of Ms Adams, they must fall within either s.28B(2) or s.28B(6) of the SDA: that is they are either employees of ITS allegedly sexually harassing a fellow employee or they are workplace participants sexually harassing another workplace participant.
Whilst the term "employee" is not defined in the SDA, the term employment is defined in s.4 as including "work under a contract for services". Furthermore, "workplace participant" is defined in s.28B(7) of the SDA as meaning "an employer or employee" and "a contract worker". A "contract worker" is defined in s.4 as being as "a person who does work for another person pursuant to a contract between the employer of the first-mentioned person and that other person".
It is accepted by both parties that Ms Adams is an employee of ITS. It follows that either or both Mr Tony Phillips and Mr Bobby Phillips must be an employee of ITS or a contract worker to be within the SDA so that it can be alleged that they sexually harassed a fellow employee or workplace participant, being Ms Adams.
Considerable evidence was given as to the nature of the relationship between Mr Tony Phillips and Mr Bobby Phillips on ITS from January 1995 to January 1996. The following issues appear to be accepted by both parties:
(a) Mr Tony Phillips and Mr Bobby Phillips trade under the business name, B & T Tiling;
(b) B & T Tiling were on occasions sub-contractors with Beechwood to fix tiles for their new project homes. This relationship does not involve ITS;
(c) on occasions, when a customer wished to have extra tiling work for their project home (referred to in the proceedings as "Beechwood extras"), the customer selected their tiles from ITS and B & T Tiling fixed the tiles. Both ITS and B & T would be paid directly by the customer. On these occasions there was no contractual relationship between ITS and B & T.
(d) on occasions, when a customer wished to have Beechwood extras, ITS would pay B & T direct for their labour particularly if the customer was outside Wollongong and wanted to ITS to co-ordinate the fixing of the tiles. On these occasions there is a contractual relationship between ITS and B & T.
(e) on occasions, ITS supplied tiles to a customer and arranged for B & T to fix the tiles pursuant to a contract for services (referred to in the proceedings as a "supply and fix"). One written contract for service dated 2 November 1994 was provided to the Commission with the submissions made on behalf of Mr Tony Phillips and Mr Bobby Phillips[11] and evidence was given that any other supply and fix jobs were performed pursuant to an oral agreement between ITS and B & T. On these occasions there was a contractual relationship between ITS and B & T.
(f) on occasions, Mr Tony Phillips and Mr Bobby Phillips were in ITS premises as customers purchasing supplies. On these occasions, there was no contractual relationship between them and ITS.
It is the case that in the circumstances described in (d) and (e) above, Mr Tony Phillips and Mr Bobby Phillips (as B & T) were engaged by ITS pursuant to a contract for services. It would follow that at these times, Mr Tony Phillips and Mr Bobby Phillips would be employees or contract workers of ITS as defined by s.4 of the SDA. Furthermore, at these times, the alleged conduct of Mr Tony Phillips and Mr Bobby Phillips could be considered within the purview of s.28B(2) and s.28B(6).
The next step in determining if Mr Tony Phillips and Mr Bobby Phillips are within the jurisdiction of the SDA, is in determining in what capacity they were in the ITS premises on the occasions that it is alleged that Ms Adams was sexually harassed.
The respondents provided material[12] which show a series of payments from ITS to B & T in 1995 and 1996. The relevant payments are as follows:
(a) $1,248.75 in July 1995;
(b) $1,250.00 in August 1995;
(c) $1,110.00 in December 1995;
(d) $2,753.00 in January 1996; and
(e) $2,818.29 in February 1996.
It appears that these payments were either in relation to supply and fixes or Beechwood extras.
There were also ITS cheque butts tendered by Ms Adams' representative that show payments of $1,125.00 to B & T on 7 July 1995 (the butt records it being for "wages") and $1,000.00 to B & T on 25 August 1995 (the butt records it being for "sub-contract").[13] Evidence was given by Mr Tony Phillips, Mr Bobby Phillips and Mr Komel that B & T did much less work for ITS in 1995 than it had historically given that much of B & T's business was taken up that year with several large Beechwood contracts.
Evidence was given by Mr Tony Phillips that these payments were usually up to a month or five weeks in arrears so that, for example, the above payment in February 1996 could have been for work completed in January 1996 or possible late December 1995. Furthermore, evidence was given by Mr Komel, Mr Tony Phillips and Mr Bobby Phillips that each of these jobs would most probably have taken a day to complete and would not have required Mr Tony Phillips or Mr Bobby Phillips to come into ITS premises as ITS would have delivered the tiles to the relevant site. Furthermore, when ITS paid B & T for these jobs, evidence was given that it was Mrs Susan Phillips and not Mr Tony Phillips or Mr Bobby Phillips who would collect the payment from ITS premises.
Documents were also produced by the respondents (but not taken into evidence) that were a sample of invoices for the times when Mr Tony Phillips and Mr Bobby Phillips had purchased supplies from ITS though it was not clear from them whether they had come into the store to collect the goods or if persons they worked with (such as their apprentices) had done so. The scenario of a customer sexually harassing an employee of the business that the customer is patronising is not within the jurisdiction of s.28B of the SDA.
The onus is on the complainant to establish that at the times of the alleged sexual harassment by Mr Tony Phillips and Mr Bobby Phillips, they were workplace participants of ITS (in that they were acting pursuant to a contract for service or contract workers) rather than customers. The onus is not on Mr Tony Phillips and Mr Bobby Phillips to disprove that they were workplace participants. I will consider the status of Mr Tony Phillips and Mr Bobby Phillips in relation to ITS at the time of each of the incidents alleged.
5.1.1 Incidents in August and October 1995
Ms Adams is unable to give specific dates in relation to three of the incidents allegedly involving Mr Tony Phillips and Mr Bobby Phillips other than to identify that, the first incident with Mr Bobby Phillips on the telephone occurred in August [14] as did the alleged incident of Mr Tony Phillips patting Ms Adams on the bottom and the second incident where Mr Tony Phillips allegedly insinuated that Ms Adams was a prostitute occurred in October 1995.
If it is accepted that the payments made by ITS to B & T from July 1995 to February 1996 were in arrears then it appears that it is only possible to conclude that in both August and October 1995, B & T were in a contractual relationship with ITS if it is assumed that the payment of $1,250.00 in August 1995 or the cheque made payable to B & T for $1,000.00 on 25 August 1995 was for work in August (rather than July) and that the payment of $1,110.00 in December 1995 was for work performed in October 1995.
My difficulty with these incidents is that Ms Adams has the onus of establishing, on the balance of probabilities, that on the three occasions when either Mr Tony Phillips or Mr Bobby Phillips allegedly sexually harassed Ms Adams, they were in the ITS premises as a result of a contract for service between B & T and ITS rather than as mere customer buying supplies. I am not satisfied that Ms Adams has discharged this onus given that to find that the incidents are within the jurisdiction of the SDA would require me to find not only that the above payments relate to jobs performed in those months but also to find that Mr Tony Phillips and Mr Bobby Phillips were in ITS for reasons connected to those jobs. I am of the view that there is too little evidence to make such a finding as it is just as likely that Mr Tony Phillips and Mr Bobby Phillips were present as customers on those days as it is that they were there pursuant to a contract for service. In such circumstances, Ms Adams has not been able to prove her case on the balance of probabilities.
I find, therefore, that in relation to the alleged incidents in August 1995 concerning Mr Tony Phillips allegedly patting Ms Adams on the bottom and Mr Bobby Phillips allegedly calling her a "stupid bitch" and a "slug holder" on the telephone, these incidents are not matters that are within the jurisdiction of the SDA and I must, therefore, dismiss the complaints made in relation to those incidents.
5.1.2 Incident on 2 January 1996
The only incident that can be linked to a particular date is the second incident with Mr Bobby Phillips on 2 January 1996.
Mr Corda gave evidence that at the ITS Christmas party in 1995, he asked Mr Bobby Phillips to do a job for ITS at Bulli. Mr Bobby Phillips gave evidence that Mr Corda gave him the address for the job at Bulli at the same time.
Mr Tony Phillips gave evidence that at Christmas time, he had gone on holidays and left for Mr Bobby Phillips a list of "fix ups" that had to be done in relation to completed jobs. This included a repair that needed to be done on a Beechwood home at in Dapto: a job that did not in any way concern ITS other than the tiles needed to do the repair were to be supplied by ITS.
Mr Bobby Phillips gave evidence that on his way to the ITS job at Bulli, he visited ITS premises to collect some tiles for the job at Dapto he was to do for his father. He gave evidence that Mr Komel gave him the tiles and the address for the Dapto job which Mr Tony Phillips had arranged with Mr Komel prior to his holiday. Mr Bobby Phillips said during his examination-in-chief by Mr Komel:
"... I got a note, 'See Bruno. He's got the tiles for the job in Dapto.' I've called in. We've done hundreds of houses in Dapto; it could've been any one of them. So I've called in. Apparently dad has already organised with you - picked up a box of tiles with some paperwork. You told me exactly what house to go to so I could go and fix it."
It was Mr Bobby Phillips' evidence that he then went on and did the job at Bulli for ITS but that his only reason for visiting the ITS premises on that day was in relation to the Dapto job and that he had no reason to visit the premises for the Bulli job. It was at the site at Bulli that Mr Komel later visited Mr Bobby Phillips and Mr Williams to question them as to Ms Adams' allegation that they had called her a "slug-holder".
Mr Bobby Phillips stated in his written statement that prior to his departure from the ITS premises, "[w]e had been waiting for [Mr Komel] to provide us with some documentation. He said, `Here's the address. Off you go'". It was put by me to Mr Bobby Phillips that this could be read as suggesting that Mr Komel was giving him the address for the Bulli job. Mr Bobby Phillips denied this interpretation and stated that he already had the address for the Bulli job and that what Mr Komel gave him was the address for the Dapto job which his father had arranged for him to collect from Mr Komel together with the tiles.
Mr Komel's evidence in his statement that is Exhibit (R9) was that Mr Bobby Phillips and Mr Williams "who were doing some sub-contract work for me" pulled up outside the premises of ITS on the morning of 2 January 1996. He also states that "I gave Bobby and Shaun their worksheets and they left". In his oral evidence, Mr Komel said that:
"Bobby called in that morning to pick up some tiles... because Tony had arranged for me to give him the address for a job where a client's patio had - something had happened to it and he had to go and repair it..."
Mr Komel gave evidence that it was not a repair job for ITS but rather one of B & T's own repairs and that at the time that Mr Bobby Phillips visited the store on 2 January 1996, he had not commenced work on the ITS contract at Bulli.
The two scenarios for Mr Bobby Phillips' presence at ITS on 2 January 1996 is that he, as he and Mr Komel claim, was there for a purpose that was unrelated to the performance of the job at Bulli that day for ITS or that Mr Bobby Phillips and Mr Komel are either incorrect or misleading in their evidence and that his presence was connected to the Bulli job. It is only if I accept the second scenario that the alleged actions of Mr Bobby Phillips and Mr Williams would be within the jurisdiction of the SDA, as in the first scenario, Mr Bobby Phillips would be at ITS in the capacity of a someone picking up an order for a job that did not concern any contractual relationship between ITS and B & T. Ms Adams did not give evidence as to why she believed Mr Bobby Phillips and Mr Williams were at ITS on 2 January 1996 nor did she produce any independent evidence (nor is it likely that it ever existed) as to why Mr Bobby Phillips was there.
In weighing up the evidence in relation to this, I am unable to find that Ms Adams has proved on the balance of probabilities that Mr Bobby Phillips was at ITS on 2 January 1996 pursuant to the contract for B & T to perform services at Bulli. Despite the fact that, as stated above, I found Mr Bobby Phillips to be a witness that lacked credibility, I have formed a view (as I state below) as to Mr Komel's credibility and I believe Mr Komel's evidence as to Mr Bobby Phillips' purpose for being at ITS on that day. That being so, I am unable to find that Ms Adams has established on the balance of probabilities that Mr Bobby Phillips was at ITS premises in connection with the job at Bulli.
I find, therefore, in relation to his presence at ITS premises on the morning of 2 January 1996, that Mr Bobby Phillips was not in the employment (as defined by the SDA) of ITS and therefore the alleged incident between him and Ms Adams in not within the jurisdiction of the SDA.
It follows that given that I have found that the incidents in August 1995, October 1995 and January 1996 allegedly involving Mr Tony Phillips and Mr Bobby Phillips are not within the SDA, it is not necessary to consider the question of ITS' liability in relation to their alleged actions.
5.2 Findings in relation to the allegations against Mr Komel and Mr Corda
It is left for me to consider the allegations against Mr Komel and Mr Corda. Given that Mr Komel was the employer of Ms Adams and Mr Corda the fellow employee of Ms Adams, there is no issue of the allegations against them not being within s.28B(1)(a) and s.28B(2) of the SDA.
5.2.1 Findings in relation to Mr Komel
Ms Adams made allegations of sexual harassment against Mr Komel in the context of him being a person for whom ITS was vicariously liable. Mr Komel was not named personally as a respondent.
I found Mr Komel's evidence to be given in a truthful and honest manner and his general demeanour to be that of someone telling the truth. Every witness for the respondents gave evidence of Mr Komel not being in the habit swearing, yelling or shouting in anger in the workplace as had been alleged by Ms Adams. To the degree that I am able, I find that Mr Komel's demeanour in the witness box supports this evidence.
In relation to the specific allegations made by Ms Adams against Mr Komel, I am of the view that in some situations Ms Adams was mistaken in her evidence or confused as to whether it was Mr Komel or Mr Corda who had been present or had said certain things. I did not find many of Ms Adams' allegations to be consistent with Mr Komel's evidence nor for the conduct she attributed to Mr Komel to be consistent with his demeanour as a witness. With reference to the allegations of Ms Adams contained in paragraph 3.9 above, I make the following findings of fact.
(a) I prefer Mr Komel's evidence in relation to the statements attributed to him by Ms Adams in sub-paragraphs (b) to (f), (h), (j), (n), (p), (q), (r) and (s) of paragraph 3.9 above.
(b) I accept that there was an incident between Ms Adams and Mr Komel as described in sub-paragraph (b) where Mr Komel suggested to Ms Adams that she had a learning disorder and subsequently apologised.
(c) I prefer Mr Komel's evidence that he did not participate in the drawing of an elephant with the caption "Neena's custard arse" as alleged in sub-paragraph (g) of paragraph 3.9.
(d) I accept that Ms Adams did stay back late on night to participate in a stock take but I question if this amounts to being forced to work without pay as alleged in sub-paragraph (i).
(e) I accept that Mr Komel did not expressly say to Ms Adams that she was overdressing for the job as alleged in sub-paragraph (k) but may have implied this by suggesting that she wear a uniform.
(f) I accept that there was an incident where Ms Adams was told not to lift heavy bags of grout but Mr Komel did not say that a man was needed for the job as alleged in sub-paragraph (l).
(g) I accept that Mr Komel did not permit the tilers who came into the office to speak about their sex lives in front of Ms Adams.
Taken at its highest, I find that it may be the case that Mr Komel suggested to Ms Adams that she had a learning disorder, that Ms Adams stayed back one night to do stock take and may have been asked to wear a uniform in a manner that suggested that she was overdressing. Taken at its highest these incidents may be unpleasant [15] but they do not, taken separately or collectively in the circumstances of this matter, in my opinion constitute "unwelcome conduct of a sexual nature" as defined by s.28A(1).
I am of the view, therefore, that Mr Komel did not sexually harass Ms Adams whilst she was in the employment of ITS. It follows that the question of ITS' liability in relation to these allegations is not relevant.
5.2.2 Findings in relation to Mr Corda
I did not find Mr Corda to be a particularly impressive witness in the proceedings as I was of the opinion that he was frequently being vague and evasive in his answers to some of the questions put to him in cross-examination, in particular those questions that related to comments he allegedly made in relation to Ms Adams' attitude or aptitude in the workplace.
I am also of the view that given Mr Corda's evidence in relation to him and Ms Adams not getting on very well and his evidence (corroborated by Mr Komel) that he felt at times that Ms Adams was not assisting him in his job, Mr Corda may at times have made disparaging comments to Ms Adams particularly in reference to her work performance. Furthermore, given that Mr Komel was often out of the ITS premises, it is possible that this interaction occurred between Ms Adams and Mr Corda without Mr Komel being aware of it. Mr Komel's own evidence is that he was never aware "friction" between Ms Adams and Mr Corda.
In relation to Ms Adams' allegations in relation to Mr Corda, I find the following.
(a) I prefer Ms Adams' evidence and find that Mr Corda did:
(i) refer to Ms Adams as "just the girl in the office" or "the girl in the skirt";
(ii) called Ms Adams "a bludger" and "stupid";
(iii) make comments in a disparaging fashion in relation to women in Navy after he got off the phone from a disgruntled customer.
(iv) asked Ms Adams on occasions whether "she got a bit last night".
(v) made comments as alleged in paragraph 3.10(j) above.
(b) I do not accept that Mr Corda made comments to Ms Adams relating to her "panty line" or that she did not wear "G-strings" as I am of the view that this comment has been confused with the alleged comments made as to strippers that some of the tilers had recently seen and had discussed (though not in front of Mr Komel: see my finding in 4.2.1 (a) above).
(c) I am of the view that there was some discussion in the office as to whether Ms Kent and/or Ms Adams were lesbians or that Mr Corda may have suggested that Ms Kent and Ms Adams should be in a relationship together because "no men would put up with them". I am also of the view that this may have come about from Ms Adams telling Mr Corda that Ms Kent was a lesbian but doing so for the purposes of a joke.
(d) I accept that Mr Corda did refer to Ms Adams as the "office witch" or "office dragon" but I find that the comments were made in a context that does not amount to sexual harassment as the first comment was made when Ms Adams was playing with a broom in the showroom and the second comment was made in relation to Ms Adams pursuing a debt to a customer.
(e) Concerning the allegation that Mr Corda once said to Mr Komel in relation to Ms Adams that "You should not have a woman doing a man's job", I accept (as discussed above in relation to my findings as to Mr Komel's conduct) that this is how Ms Adams construed a comment made in relation to her lifting heavy bags of grout but that the comment was never expressly said to her.
(f) I find that Mr Corda did draw a elephant on the display wall of the storeroom but find that there is insufficient evidence to find that he also wrote a caption of "Neena's custard arse" on it.
It follows from the above findings that in relation to the allegations against Mr Corda that I am of the view that Mr Corda did refer to Ms Adams as "just the girl in the office" or "the girl in the skirt" and call her "a bludger" and "stupid". I also find that Mr Corda did ask Ms Adams on occasions whether "she got a bit last night" and make comments in a disparaging fashion in relation to women in Navy after he got off the phone from a disgruntled customer and did make some comments as to Ms Adams and Ms Kent's sexuality.
I am of the view that the allegations in relation to asking Ms Adams if "she got a bit last night" and Mr Corda stating that "all Navy women should be raped" is unwelcome conduct of a sexual nature as they are statements of a "sexual nature..made orally" (see s.28A(1)(b) and s.28A(2)). The other comments made to Ms Adams may be better classified as sex discrimination as Ms Adams is being treated less favourably than it would appear that Mr Corda would treat Mr Komel or his fellow employee Mr Wira because of Ms Adams' sex or a characteristic that is generally imputed to her sex (see s.5(1) (a) of the SDA).
Mr Corda was not named as an individual respondent in these proceedings so his individual liability is not a question that I have to determine. It was alleged, however, that ITS is vicariously liable for Mr Corda's conduct.
5.3 Is ITS vicariously liable for Mr Corda's conduct?
Section 105 provides that a person (such as ITS) who causes, instructs, induces, aids or permits another person (such as Mr Corda) to do an unlawful act under Division 1 or 2 of Part II of the SDA shall be taken to also have done the unlawful act. The provisions relating to sexual harassment are in Division 3 of Part II of the SDA. However, given that it has been accepted that sexual harassment in the course of employment may also be sex discrimination in employment[16] (which is dealt with in Division 1 of Part II of the SDA), s.105 can be applicable to conduct that is found to be sexual harassment.
The relevant part of s.106(1) of the SDA provides that where an employee (such as Mr Corda) of a person (such as ITS) does an act in connection with the employee's employment that would be unlawful under Division 2 of Part II then the SDA applies to the employer as if the employer had also done the unlawful act. Section 106(2) provides that s.106(1) does not apply if it is established that the employer took all reasonable steps to prevent the employee from doing the acts of the kind referred to.
It follows that for ITS to be liable for the conduct that I have found was engaged in by Mr Corda, it must be shown that ITS either permitted or caused his conduct or did not take all reasonable steps to prevent it from occurring. In this situation, in order to consider the action, or lack thereof, of ITS it is necessary to consider the actions or lack thereof of Mr Komel as he acted on behalf of ITS (see s.107(1) of the SDA).
Ms Adams and Mr Komel agreed in their evidence that Ms Adams complained to Mr Komel in relation to the following matters during her employment:
(a) Mr Bobby Phillips' alleged comments on the telephone to Ms Adams in August 1995;
(b) Mr Corda's comments in relation to Navy women (though Mr Komel stated that he heard Mr Corda swear and did not hear any comments about "all Navy women being raped and left bleeding in the gutter");
(c) Mr Tony Phillips' alleged reference to Ms Adams being a prostitute; and
(d) Mr Bobby Phillips or Mr Williams allegedly calling Ms Adams a "slug holder" on 2 January 1996.
In all instances other than (c), both agreed (and this was supported by the alleged perpetrator of the incident) that Mr Komel had spoken to the person that Ms Adams had complained of shortly after Ms Adams made the complaint and that he asked them to refrain from their behaviour.
Ms Adams and Mr Komel differ in relation to their evidence as to the incident with Mr Council. Ms Adams gave evidence that she complained to Mr Komel whereas Mr Komel (and Mr Corda) allege that Mr Corda told him of the incident. Mr Komel and Mr Council agreed in their evidence that Mr Komel spoke to Mr Council about the incident.
Another area of disagreement is in relation to the first incident with Mr Tony Phillips where Ms Adams alleges that Mr Tony Phillips touched her on the bottom. Ms Adams alleges that she complained to Mr Komel and that Mr Tony Phillips subsequently apologised to her. Mr Komel denies that he was ever told of the alleged incident.
Ms Adams gave evidence that in relation to the comments that I have found that Mr Corda did make to Ms Adams, in some cases he was making them in front of customers (such as "she's the girl in the skirt") "but there was only ever Mario and I working. So any other comments that he made, nine times out of 10 it was between Mario and myself as with most of the incidences". Ms Adams agreed that she did not complain specifically[17] to Mr Komel about the incidences (other than the incident concerning Navy women) but "I said I didn't like how he [Mr Corda] spoke to me and I didn't like how he belittled me in front of customers". Mr Komel gave evidence that other than the comment relating to Navy women, Ms Adams never complained to him about Mr Corda's comments nor did he ever overhear them in the workplace.
Furthermore, when it was put to Ms Adams in cross-examination by Mr Komel that he would never have tolerated the behaviour specified in paragraph 3.10 (j) above occurring in front of Ms Adams, Ms Adams answered "[n]ot in front of me, nine times out of ten, no".
Whilst the above incidencts where Ms Adams complained to Mr Komel about Mr Tony Phillips and Mr Bobby Phillips are not directly relevant to the finding of ITS being vicariously liable as no finding has been made in relation to the primary liability of Mr Tony Phillips and Mr Bobby Phillips, it does assist to establish a pattern whereby if Mr Komel was told of a matter he took prompt action in reprimanding the alleged perpetrator of the conduct.[18]
In accordance with the findings that I have made in relation to my opinion of Mr Komel's credibility, I prefer his evidence to that of Ms Adams in relation to Ms Adams making complaints to Mr Komel in relation to Mr Corda and find that Ms Adams made one complaint to Mr Komel in relation to the comment made by Mr Corda as to Navy women but did not make any further complaints to him.
Section 105 requires some positive action or omission on the part of the employer. The only appropriate ground that could be alleged against ITS in relation to s.105 in my opinion would be that Mr Komel "permitted" Mr Corda to sexually harass Ms Adams. I find this difficult to conclude given that Mr Komel did not tolerate Mr Corda swearing in front of him and Ms Adams and that Ms Adams agreed that Mr Komel would not tolerate similar behaviour occurring in front of her if he was present.
Section 106(1) of the SDA does not require that the person who is alleged to be vicariously liable to have been aware of the alleged unlawful conduct.[19] It was held in Boyle v Ishan Ozden & Ors that an employer could be vicariously liable for the actions of an employee even if the employer had been on holidays overseas when the alleged unlawful conduct occurred. As Dame Roma Mitchell stated:
"There was no evidence that any steps had been taken by the second or third respondents to prevent the commission of acts such as those complained of by the complainant. In saying that I do not criticise them. It would be difficult to envisage a situation in which they would have such instructions. But the fact is that s.106 attaches vicarious liability to them unless they have done something active to prevent the acts complained of." [20]
It has also been stated that where possible, particularly in large organisations, procedures and policies should be put in place to discourage sexual harassment and if these procedures and practices are not sufficient and sexual harassment occurs then the employer may be vicariously liable.[21]
In relation to s.106(2) it is necessary to decide if Mr Komel did take "all reasonable steps" to prevent the alleged sexual harassment by Mr Corda. It is certain that Mr Komel would not be found to have taken "all reasonable steps" if Ms Adams had complained to him about Mr Corda and no action or very limited action had been taken or a long delay had occurred before action was taken.[22] Given that Mr Komel did reprimand Mr Corda on the one occasion that I find that Ms Adams complained about Mr Corda and otherwise was of the view that Mr Corda and Ms Adams got along well, it is difficult to find that Mr Komel could have taken any further action than he did. [23] I accept the evidence of Mr Komel and Ms Adams that Mr Komel was often not present when the incidents between Ms Adams and Mr Komel occurred, but I am of the view that Mr Komel took all reasonable steps given his awareness of the situation.
Furthermore, given my findings in relation to Mr Komel's credibility, I am of the view that if Ms Adams had generally complained to Mr Komel as to Mr Corda's conduct then Mr Komel would have taken some action in relation to it. Given that Ms Adams did complain to Mr Komel about other incidents, I think it was reasonable for Mr Komel to believe that if there was any incidents between Ms Adams and Mr Corda then Ms Adams would report them to him. I appreciate that Ms Adams did give evidence that she did so but, as stated above, I prefer Mr Komel's evidence that he was not aware of Mr Corda's comments other than the swearing in relation to the Navy women.
It follows that I am of the view that Mr Komel on behalf of ITS did not permit Mr Corda's sexual harassment or sex discrimination of Ms Adams and that he took all reasonable steps to prevent such unlawful conduct from occurring.
I therefore, dismiss the complaint in relation to ITS being vicariously liable for the actions of Mr Corda.
5.4 Is ITS primarily liable for discriminating against Ms Adams?
Even though I have held that ITS is not vicariously liable for the actions of Mr Corda, s.14(2)(d) of the SDA provides that it is unlawful for an employer to discriminate against an employee on the ground of the employee's sex by subjecting the employee to "any other detriment". It has been held that subjecting an employee to a working environment (such as one where there is sexual harassment) that is hostile towards the employee because of the employee's sex can be a detriment of the kind referred to in s.14(2)(d).[24]
It is possible to ensure that a working environment is not hostile by putting in place (and make known to all employees) effective policies or guidelines (such as putting up posters that state that sexual harassment is unlawful) so that persons are aware that particular behaviour is not acceptable in the work environment. Whether such a practice is sufficient to prevent the environment being hostile will be matter to be determined on the facts,[25] but such practices are encouraged and the Commission assists employers by issuing guidelines in relation to such practices.[26]
It possible that Mr Komel could have done more to make his employees and visitors to the ITS premises more aware of the types of behaviour that are not permissible in the workplace. This could easily have been achieved by putting up posters or a simple statement of a policy against sexual harassment. I would encourage Mr Komel and all employers to take such action.
I find in this instance, however, that by taking action each time a complaint was made to him, Mr Komel (on behalf of ITS) did not create or tolerate an environment that was hostile to Ms Adams. This may have achieved on a piecemeal basis and there may have been more effective and wholistic ways to achieve this end, but I still believe that the environment was so contained by the actions that Mr Komel did take.
I find, therefore, that ITS is not primarily liable for discriminating against Ms Adams pursuant to s.14(2)(d).
6. CONCLUSION
Having dismissed the complaint made by Ms Adams in relation to Mr Tony Phillips, Mr Bobby Phillips and ITS, there is no need for me to consider the evidence given by the parties as to the damage suffered by Ms Adams.
By way of summary, I make the following findings that:
(a) the alleged unlawful conduct of Mr Tony Phillips and Mr Bobby Phillips is not within the jurisdiction of the SDA;
(b) that Mr Komel did not act unlawfully towards Ms Adams;
(c) that Mr Corda did act unlawfully towards Ms Adams but is not personally liable under the SDA for such conduct;
(d) ITS is not vicariously liable for the conduct of Mr Corda; and
(e) that ITS is not primarily liable for discriminating against Ms Adams.
It follows that pursuant to s.81(1)(a) of the SDA that I dismiss the complaint as not being substantiated against any of the respondents.
Dated this 22nd day of January 1998 in Sydney
............................................
Michael Dodson
Hearing Commissioner [1] The first statement is dated on or about 3 January 1996 and the second dated on or before 7 November 1996. Both statements are Exhibit C1 in these proceedings.
[2] Mr Komel gave evidence orally and by way of two statements, one being undated (Exhibit R9) and one titled "Response by Bruno Komel" (Exhibit R10).
[3] One Statement dated 5 June 1996 to QBE (Exhibit C10(1)) and the other dated 30 October 1996 (Exhibit C10(2)).
[4] Ms Kent's written statement was Exhibit C3.
[5] A statement dated 28 May 1996 (Exhibit R13) and an amended statement dated 14 February 1997.
[6] A statement dated 30 May 1996 and an amended statement dated 14 February 1997.
[7] Statement dated on or about June 1996 (Exhibit C2).
[8] Exhibit R5 in the proceedings.
[9] Aldridge v Booth [1988] FCA 170; (1988) 80 ALR 1 where Spender J held that there was some doubt as to whether the conduct of a respondent was entirely unwelcome but that the conduct engaged in still constituted sexual harassment.
[10] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 as applied by Sir Ronald Wilson in Djokic v Sinclair & Central Queensland Meat Export Company, Australia Pty Ltd [1994] HREOCA 16; (1994) EOC 92-643.
[11] Exhibit R6
[12] Being Prescribed Payments System forms (Exhibit C12 and Exhibit C13).
[13] Exhibit C14 in the proceedings.
[14] Ms Adams' initial evidence in relation to this incident was she and Mr Bobby Phillips went out in June 1995. It was later conceded by Ms Adams that this could have been July 1995 and subsequently conceded by Mr Moore for Ms Adams that the alleged incident, if their relationship lasted approximately three weeks, would have been August 1995.
[15] See also Malone v Pike & Anor (1997) EOC 92-868.
[16] Aldridge v Booth [1988] FCA 170; (1988) 80 ALR 1; Hall v Sheiban [1989] FCA 72; (1989) EOC 92-250; (1989) 85 ALR 503.
[17] It should be noted that a failure to complain to an employer about an incident of sexual harassment may not be fatal to the complaint of sexual harassment especially where there is a fear that a complaint may result in the complainant losing their job: see Dolphin v Longa & Anor (1994) EOC 92-641.
[18] Other than the allegation that Mr Tony Phillips alleged Ms Adams was a prostitute where Mr Komel took action to try to calm Ms Adams rather than reprimand Mr Tony Phillips.
[19] Boyle v Ishan Ozden & Ors (1986) EOC 92-165.
[20] Ibid at p.76,614.
[21] Evans v Lee & Anor (1996) EOC 92-822.
[22] Hill v Water Resources Commission (1985) EOC 92-127.
[23] See also T -v- Nissan Motor Company (Australia) Ltd H.R.E.O.C., Commissioner Kathleen McEvoy, 18 December 1997.
[24] Smith v Anor v Sandalwood Motel Pty Ltd (1994) EOC 92-577.
[25] Evans v Lee & Anor (1996) EOC 92-822.
[26] See the Sexual Harassment Code of Practice and Sexual Harassment in the Workplace, publications that are published by and available from the Commission.
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