Judge v Cripps & Cripps Pty Limited [1999] NSWADT 11 (4 March 1999)

Last Updated: 28 April 1999

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL

CITATION: Judge v Cripps & Cripps Pty Limited [1999] NSWADT 11

REVISION DATE:

DIVISION: Equal Opportunity

APPLICANT:

Robyn Judge

RESPONDENT:

Cripps & Cripps Pty Limited

FILE NUMBERS: 47 of 1998

HEARING DATES: 25/02/99, 26/02/99, 04/03/99

SUBMISSIONS CLOSED: 26/02/1999

DECISION DATE: 04/03/1999

JUDICIAL MEMBER: Graham Ireland Judicial Member

LAY MEMBER: S Clayton Member

LAY MEMBER: A Silva Member

APPLICANT KEYWORDS: Sex Discrimination - Employment; Victimisation

MATTER FOR DECISION: Primary matter

PRIMARY LEGISLATION CITED: Anti Discrimination Act 1977

APPLICANT REPRESENTATIVE: P Sekhon, NSW Clerical & Administrative Branch, Australian Services Union

RESPONDENT REPRESENTATIVE: J Needham instructed by Sanders Simpson & Freed Solicitors

ORDERS: (1) That the claim of sex discrimination against the respondent has not been substantiated and is dismissed.

(2) That the claim of victimisation against the respondent has not been substantiated and is dismissed.

(3) That there be no order as to costs.

DECISION:

CHAIRMAN: General Background

1 I can state that the Tribunal has reached a decision. At this stage the terms of that decision have not been reduced to writing, so I will need to read the decision from my notes, and the transcript will record those details. The parties will have access to that transcript when it is available.

2 This is an inquiry that results from a reference to the Tribunal by the President of the Anti-Discrimination Board under section 94(1) of the Anti-Discrimination Act 1977 N S W, "the Act". That reference was made to the Tribunal on 22 April 1998 on the ground of sex in employment and victimisation.

3 The complainant is Ms Judge, who was employed by the respondent, Cripps & Cripps Pty Limited, as a receptionist from 1 July 1995 to 22 April 1996 at its Cronulla office. Mr Joel Wright commenced employment with the respondent on 15 January 1996 as a full-time grade 1 property manager.

Allegations of Discrimination

4 The Tribunal has considered the allegations of discrimination under two temporal periods. The first is the allegations of direct discrimination under section 24(1)(a) of the Act, which occurred, according to Ms Judge, during the first week of Mr Wright's employment, from 15 January 1996 to 19 January 1996. Ms Judge describes in that period the instances of discriminatory acts against her: firstly, on the first day she stated that Mr Wright was "leering" at her, although the evidence showed that there was only one occasion that Ms Judge could describe; secondly, that Mr Wright would touch her on her hand when he lent across the desk to pick up a pen; thirdly, that there were occasions when Mr Wright leant against Ms Judge when he pulled up the chair that was adjacent to Ms Judge's chair, a chair that was normally occupied by a fellow employee, Ms Normand, and on those occasions Mr Wright would sit next to Ms Judge at her chair and Mr Wright's leg would touch her leg and his arm would touch her arm. Fourthly, Ms Judge further described that Mr Wright, when having access to the computer which stood in front of Ms Judge on her desk, would place his right hand on her right shoulder, on occasions when he would peer at the screen of the computer or on occasions when he used the keyboard attached to the computer. Ms Judge stated that Mr Wright would use the computer in front of her on her desk about two or three times each day during that period. Ms Judge also complained that Mr Wright would on occasions call her "babe" and on other occasions would call her "Rob" and that she did tell Mr Wright during that period on at least one occasion that her proper name was Robyn.

5 Then after 19 January 1996 Ms Judge complained that generally Mr Wright adopted a domineering attitude to her after he was appointed a property manager of the respondent, some time about mid-February 1996. Later the Tribunal will describe in more detail the specific allegations of Ms Judge about Mr Wright's behaviour in that period.

6 Mr Wright in his evidence denied each of these allegations. It is necessary for the Tribunal to make findings in relation to those allegations.

7 As to Mr Wright calling Ms Judge "Rob", all the other employees in the office, according to evidence of some of those employees, called Ms Judge "Rob" without any objections from her. It seems to the Tribunal that in that situation it would be most unlikely that Mr Wright did not also adopt a similar shortening of her name, and in relation to Mr Wright's absolute denial, the Tribunal does not accept that denial from Mr Wright.

8 As to the allegation that Mr Wright called Ms Judge "babe", there is evidence of other employees that Mr Wright used the term "babe" to them, although they stated they did not take offence at the use of that name. The Tribunal has taken the view that the denial by Mr Wright of the use of that name to Ms Judge cannot be accepted.

9 As to the allegations of touching and leaning against, the evidence showed that Mr Wright was required to use the computer in front of the position where Ms Judge sat at her desk in order to have access to rental information and to use the printer that was connected to that computer in order to print out receipts for rent. On balance, the Tribunal is of the view that it is more probable that Mr Wright was invasive towards Ms Judge and that he did touch her in the manner that she describes. Mr Wright denies that he had any intention to harass her. The degree to which Mr Wright subjected Ms Judge to the acts about which she complained is not possible, in the view of the Tribunal, to determine with any certainty.

10 There is always a risk in accepting the uncorroborated testimony of a complainant of allegations of sexual harassment. Having regard to the specific denials by Mr Wright of each of the separate allegations of harassment, and the support for Ms Judge's allegations of the use by Mr Wright of the terms of address to her "Rob" and "babe", the Tribunal has decided to accept the version of Ms Judge as to the allegations of harassment during the first week of Mr Wright's employment at the Cronulla office of the respondent.

11 If the issue was to stop at that point, the Tribunal would find that in the terms of section 24(1)(a) of the Act Mr Wright discriminated against Ms Judge on the grounds of her sex during that period. Mr Wright, however, is not the respondent to Ms Judge's complaint. The respondent to this inquiry is Cripps & Cripps Pty Limited, the employer of Mr Wright.

12 At the end of the week on the morning of Friday, 19 January 1996, Ms Judge went to Mr David Cripps, the manager and shareholder in the respondent, and told him that she was upset with Mr Wright's actions towards her and described his actions as "invading her space" and that he was "creepy". Mr Cripps said he would look into it. Ms Judge did not give any more details of her allegations against Mr Wright, nor did Mr Cripps seek any more information. It should also be noted that there is some conflict between Ms Judge and Mr Cripps as to what was said. The Tribunal is satisfied that Ms Judge did not give Mr Cripps details of the allegations of the instances of harassment which she gave in evidence to the Tribunal.

13 Mr Cripps then called Mr Wright into his office. He described to Mr Wright what Ms Judge had said to him and asked Mr Wright if the allegations were true. Mr Wright expressed surprise and said he was offended. He said in future he would keep his distance from Ms Judge and give her more breathing space. Mr Cripps said he was satisfied with Mr Wright's response. Mr Cripps then spoke to Ms Judge and told her that he had spoken to Mr Wright who said he did not understand that Ms Judge was offended by his actions and that Mr Wright would keep away from her as much as possible. Mr Cripps told Ms Judge that if she had any further complaints to come back to him.

14 Ms Judge agreed that during the week ended 19 January 1996 that she had not complained to Mr Wright about his conduct other than on an occasion when he called her "Rob" and she had said, "My name is Robyn". Mr Cripps stated that he asked Ms Judge later in the afternoon of 19 January 1996, and again on 29 January 1996, if everything was alright and she said, "Yes". Ms Judge on those occasions made no mention of any further concern about Mr Wright's conduct.

15 Ms Judge further complained that after mid-February 1996 when Mr Wright succeeded to the position of property manager upon the then property manager, Ms Buck, taking maternity leave, that Mr Wright's attitude towards her became domineering and, although the physical acts of harassment were not repeated after 19 January 1996, his attitude towards her and her work performance was both discriminatory and detrimental to her. She described his actions as more subtle. Ms Judge also complained about the attitude of Mr Wright by reference to an instance where he pointed to her job description and said, "I manage you. You work for me." She stated that on occasions Mr Wright would stand uncomfortably close to her when handing her papers to type. He continued to call her "Rob" and "babe".

16 Ms Judge became upset on one occasion when at 5.25 pm Mr Wright insisted that she not go home and complete the typing of a termination notice of a tenancy. It was necessary for the notice to be posted that night. Ms Judge refused this request and left the office without concluding the typing. She stated that that was an example of the type of pressure and domineering attitude of Mr Wright.

17 Ms Judge also complained that Mr Wright insisted she type his commission statements and that she input into the computer details of rentals, and that it was not her job to do these tasks, especially as she did not have sufficient time to do her other work, which required her to operate a busy telephone and reception area. Ms Judge also stated that she was not required by Ms Buck to do these tasks. The Tribunal notes that Ms Judge's job description includes these tasks but it is not clear when Ms Judge became aware of this written job description.

18 Ms Judge also complained that Mr Wright constantly reprimanded her for coming back late from lunch or taking too long at the post office. Mr Wright denied that he deliberately harassed Ms Judge in these matters. He stated that as he was a property manager Ms Judge was under his supervision and one of her tasks was to do his typing. He stated that he only reprimanded her when her performance was not adequate.

19 Mr Wright's position was supported by Mr Cripps who confirmed that he had first become concerned about Ms Judge's performance after he returned to the office early in January 1996 from his holidays. He stated that he noticed on ringing into the office that on occasions there were unacceptable delays in answering the phone. He said there were a number of complaints from other staff about phone delays and calls into the office dropping out unanswered. He did not speak to Ms Judge at that time.

20 Ms Judge also points to the failure to appoint her as the assistant property officer in March 1996, following the resignation of the incumbent, as a further illustration of discrimination and victimisation, especially as Mr Cripps said her appointment was not appropriate because of her conflict with Mr Wright. She stated that she considered she should have been promoted and that she was able to perform the role. Mr Cripps stated that the position required personal experience in property management and one who held a real estate agent's licence and that Ms Judge did not meet this criteria. He stated that when Ms Judge spoke to him about her appointment to the position he explained to her that she did not have the necessary qualifications and he also stated that the person appointed to the position did in fact hold those qualifications.

21 On 4 April 1996 Mr Cripps spoke to Ms Judge about his concern about the deterioration in her attitude to her work and to her work performance and he told her that she did not seem interested in her job. Ms Judge stated she did not consider her attitude had deteriorated although her attitude had been affected by Mr Wright's conduct towards her. She described the meeting with Mr Cripps as not a discussion with him as she was not given a chance to respond.

22 On 15 April 1996 Ms Judge resigned from her position with the respondent effective on 22 April 1996.

23 The Tribunal has found that discrimination by Mr Wright on the ground of sex did occur in the period from 15 January 1996 to 19 January 1996. The allegations of discrimination by Mr Wright on the ground of sex during the period after 19 January 1996 to 15 April 1996 are of a more general nature and according to Ms Judge comprised more subtle forms of unfair treatment. The Tribunal is not satisfied either that the conduct of Mr Wright towards Ms Judge after mid-February 1996 can be classified as less fair treatment when compared, as is required under section 24(1)(a) of the Act, to a male who notionally was in the same or similar position to Ms Judge or that the offending conduct of Mr Wright towards her as alleged during that period occurred on the ground of her sex.

24 The evidence does not support a finding by the Tribunal that the actions of Mr Wright towards Ms Judge after 19 January 1996, considered singly or cumulatively, and having regard to the conduct of Mr Wright towards her prior to 19 January 1996, would not have occurred in the same or similar circumstances as the circumstances applying to Ms Judge, if a male was in the same situation. Ms Judge acknowledged that she developed an adverse attitude towards Mr Wright and on his elevation to the position of property manager, Ms Judge forsook any likelihood that she would be able to work with Mr Wright or he with her. It is likely that their working relationship would deteriorate without a special effort by each party. This did not happen and on the contrary the relationship continued to deteriorate.

25 In this situation, the Tribunal finds that the acts complained about by Ms Judge after 19 January 1996 were not discriminatory within the provisions of section 24(1)(a) of the Act, and, further, that those acts were not based on the ground of sex, but were directly related to the attitude of Ms Judge to her work performance, which deteriorated after Mr Wright was appointed property manager by the respondent.

Unlawful Discrimination

26 It is necessary to advert to the finding by the Tribunal that the acts complained of between 15 January 1996 and 19 January 1996 were discrimination on the grounds of sex within the provisions of section 24(1)(a). That discriminatory conduct to be unlawful must fall within one of the areas of discrimination covered by Division 2 or Division 3, Part 3 of the Act. In this complaint the complainant relies on section 25(2)(a) in Division 2 to render the discrimination unlawful. Section 25(2)(a) renders unlawful a discrimination "on the ground of sex (a) in the terms of and conditions of employment which the employer affords the employee".

27 For the sexual conduct to be unlawful under this provision there must be either an act or acts of sexual aggression such that the conduct is unequivocal in its sexual nature or "the conduct of the employer must create an unwelcome feature of the employment in a continuing rather than an isolated sense". Matthews J in the case of O'Callaghan v Loder & Anor (1984) EOC 92-023 at 75505. In that decision at page 75,506 under the subheading "Intention of Employer", her Honour said:

"The employer must either know that his conduct is unwelcome or the circumstances must be such that he should know. In other words, conduct which is persisted with in the face of rejection from the employee is capable of being unlawful under this head. Conduct which is continued in the face of an equivocal response may or may not be so. In all cases it is a precondition of liability that the complainant show both that the conduct was unwelcome in fact and the employer either knew or ought to have known of this."

28 In this complaint Ms Judge did not, except the use of the name "Rob", expressly state to Mr Wright that she objected to his conduct or indicate in an explicit manner that she considered his conduct to be unwelcome. Ms Judge did not encourage Mr Wright's behaviour and stated that she moved away from him when he lent or brushed against her. The Tribunal is not satisfied that Mr Wright could be expected, without a more emphatic response from Ms Judge, to appreciate that Ms Judge found his conduct so objectionable.

29 As her Honour Justice Matthews observed at page 75,498 in O'Callaghan's case:

"The essence of sexual harassment is that the sexual conduct was neither solicited nor incited and was regarded by the complainant as undesirable or offensive. It goes without saying that the anti-discrimination legislation was never intended to proscribe sexual relationships, whether inside or outside the work place, which are or have the potentiality of being consensual."

30 It should be interposed there that there is no suggestion in this case that the conduct was consensual. Her Honour then quotes from Circuit Court Judge Robinson in the case of Barnes v Costle 46 ALR Fed 198 (1977) at page 223:

"Sexual advances may not be intrinsically offensive and no policy can be derived from the equal opportunity laws to discourage them. We are not here concerned with racial ethics or confusing authorisation cards which serve no-one's interest, but with social patterns which to some extent are normal and expectable. It is the abuse of the practice, rather than the practice itself, which arouses alarm."

31 On 19 January 1996 Ms Judge complained to Mr Cripps. In the view of the Tribunal Mr Cripps responded in an appropriate manner by immediately confronting Mr Wright with the allegations in the broad form that had been made to him by Ms Judge. Mr Wright undertook to Mr Cripps to avoid as much as possible situations which would lead him into close proximity with Ms Judge in future.

32 The evidence of the events after 19 January 1996 is not sufficient to sustain a finding by the Tribunal that Mr Wright persisted in the conduct about which Ms Judge complained had occurred prior to her complaint to Mr Cripps. Indeed, the evidence shows that after 19 January 1996 Ms Judge had several opportunities at meetings with Mr Cripps to raise any concerns she may have had about continuation of the conduct. She did not raise any issue of continuing conduct on those occasions. The evidence of the events after 19 January 1996 complained of by Ms Judge relate to other types of conduct of Mr Wright towards her which she describes as of a more subtle nature.

33 The Tribunal concludes in relation to the conduct complained about between 15 January 1996 and 19 January 1996, that although that conduct was discriminatory under section 24(1)(a) of the Act, the discriminatory conduct was not unlawful under section 25(2)(a) of the Act as the conduct did not continue after it was first brought to the notice of Mr Wright and Mr Cripps on 19 January 1996. It was not conduct which the respondent afforded Ms Judge in the terms and conditions of her employment.

Vicarious Liability

34 In view of the findings by the Tribunal that the conduct complained of by Ms Judge was not unlawful in relation to the conduct in the week of 19 January 1996 and was not discriminatory on the ground of sex in relation to conduct between 19 January 1996 and 15 April 1996, it is not necessary for the Tribunal to consider whether the respondent was vicariously liable for the actions of Mr Wright which were the subject of the complaint.

35 As the issue was the subject of submissions by both parties, the Tribunal would add that by taking the actions which he did on 19 January 1996 immediately on learning of Ms Judge's concerns as to the conduct of Mr Wright, within section 53(1) of the Act Mr Cripps had acted clearly on the basis that he did not authorise the conduct alleged by Ms Judge and accordingly he and his company were not vicariously liable for that conduct under that section.

36 I should add that the position of the liability of Mr Cripps for conduct under the general law was referred to but was not argued before the Tribunal and the question was not considered by the Tribunal.

37 However, it was submitted on behalf of the complainant that as the respondent did not have a policy, either verbal or written, which was available to its employees and no induction or training programs on the subject, that the respondent could not be said not to have authorised the act related to sexual discrimination. The failure of an employer to have such policies and programs in place may be evidence that supports a proposition that the employer had paid no heed to the prevention of the discrimination and as a consequence is deemed to have condoned or authorised the discrimination, but in cases such as the present where there is evidence of the employer acting to prevent a continuation of discriminatory conduct, it is not sufficient to show that a lack of such a policy and programs overrides the express non-authorisation of the discriminatory conduct.

Victimisation

38 The complainant alleges that the detrimental conduct of Mr Wright towards Ms Judge after he was appointed property manager in mid-February 1996 as described earlier, was unlawful under section 50 of the Act as Mr Wright subjected Ms Judge to that detriment,

"On the ground", namely that Ms Judge, "alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act."

39 We have already described the details of the allegations of that conduct. The detriment which is alleged that Ms Judge suffered relates to her loss of enjoyment in her role in the employment of the respondent leading to her decision to resign and to her feeling of intimidation during that period.

40 In the view of the Tribunal this claim fails. The section requires a causal link between the subjection to detriment of the complainant and the allegation of the commission by the discriminator of an act in contravention of the legislation. The Tribunal has determined in relation to the acts of subjection, which were the same acts of the discrimination which allegedly occurred after mid-February 1996, that those acts directly related to the deterioration in Ms Judge's performance in that period. In the view of the Tribunal the evidence does not support a finding that such conduct and the alleged subjection of Ms Judge to the detriment that she alleges flows from that conduct was causally connected to her earlier allegations of sexual harassment. The reason for Mr Wright reacting in the manner to which Ms Judge takes exception, was not to get back at her for complaining to Mr Cripps about his harassment of her, but was in response to her unresponsive attitude to his requirements as her boss to perform properly and promptly the work he allocated to her.

41 In summary, therefore, the Tribunal makes the following findings and directions:

(1) That the claim of sex discrimination against the respondent has not been substantiated and is dismissed.

(2) That the claim of victimisation against the respondent has not been substantiated and is dismissed.

(3) That there be no order as to costs.

I HEREBY CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF THE ADMINISTRATIVE DECISIONS TRIBUNAL.

REGISTRAR / ASSOCIATE