Tabbouch v Noyeaux [2003] NSWADT 6 (14 January 2003)

Last Updated: 3 March 2003

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL EQUAL OPPORTUNITIES DIVISION

CITATION: Tabbouch -v- Noyeaux [2003] NSWADT 6

PARTIES: APPLICANT

Sawrah Tabbouch

RESPONDENT

Karl Noyeaux

FILE NUMBERS: 021115

HEARING DATES: 02/12/2002

SUBMISSIONS CLOSED: 02-12-2002

DECISION DATE: 14-01-2003

BEFORE: Connelly J - Judicial Member Taksa L - MemberWeule B - Member

LEGISLATION CITED: Anti-Discrimination Act 1977

CASES CITED: Hall v A & A Sheiban Pty Ltd (1989) 85 ALR 503

Spencer v Dowling (1996) EOC 92-851

Briginshaw v Briginshaw (1938) 60 CLR 361

O'Callaghan v Loder (1984) EOC 92-024

APPLICATION: Sexual Harassment - In workplace

MATTER FOR DECISION: Principal matter

APPLICANT REPRESENTATIVE: APPLICANT

G Vardis, solicitor

RESPONDENT REPRESENTATIVE: RESPONDENT

No appearance

ORDERS: 1. The Tribunal finds the complaint substantiated

2. The respondent Karl Noyeaux is ordered to pay the applicant Sawrah Tabbouch the sum of $5709.83 by 25 February 2003

3. No order as to costs.

Reasons for Decision:

Background

1 On 12/4/01 the Anti-Discrimination Board received a complaint from Ms Sawrah Tabbouch alleging discrimination on the ground of sexual harassment in employment.

2 Ms Tabbouch named Mr Karl Noyeaux as the person who had sexually harassed her.

3 On 13/8/02 the complaint was referred to the Equal Opportunity Division of the Administrative Decisions Tribunal (ADT) under section 94(1) of the Anti-Discrimination Act.

4 The matter was listed for a case conference on 12/11/02 at which the respondent did not attend.

5 The respondent was advised of the hearing date by the ADT by letter dated 14/11/02. The Registry phoned the respondent's solicitor on 28/11/02 and the solicitor advised that he was aware of the hearing date.

6 At the hearing of the matter on 2/12/02 the applicant's solicitor advised that he had spoken to the respondent's solicitor who was aware of the hearing date.

Applicant's evidence

7 The applicant gave evidence in conformity with her statement dated 27/3/02 which was tendered as exhibit A.

8 The applicant commenced employment with the respondent as an apprentice hairdresser on 30/11/00 and left on 12/3/01.

9 The applicant signed her indenture of apprenticeship on 29/12/00 for a period of 4 years. This was backdated to 30/11/00.

10 The applicant gave evidence that the day she signed the indenture agreement the respondent started saying inappropriate things of a sexual nature in her presence.

11 The comments increased as time went on despite requests to the respondent and his wife that the respondent desist from making such comments.

12 Whenever the nail artist Sandy came to work the comments would increase. The respondent talked about his own sex life and asked Sandy about hers.

13 On one occasion when Sandy was late for work the respondent said to her: "Are you late because you were having sex?" On another occasion he said to her: "Why aren't you making babies?"

14 Additionally the respondent would have conversations of a sexual nature with customers. On one occasion the applicant was shampooing the hair of a customer called Rodney and the respondent said to Rodney: "Have you got a girl? Are you fucking her?"

15 When the applicant heard conversations such as the ones referred to above she would say things like: "Don't talk dirty near me. I don't like to hear those things. I'm not that kind of girl".

16 The respondent would merely laugh and remind the applicant that she was under contract to him and could do nothing about it.

17 The applicant became very upset and distressed as a result of the comments and the respondent's reply to her request to desist from making such comments.

18 On 1/3/01 when the applicant arrived at work the respondent produced a picture of a woman in a sexual act with a horse and showed it to the applicant saying: "Hey Sawrah, have a look at this. It's a girl fucking a horse. I got it off the internet."

19 The applicant was repulsed by this and walked away. She said: "that's disgusting. I don't want to see it. Don't show me these things." The respondent laughed. The applicant was very offended and distressed by this incident.

20 On one occasion during the week after this incident the applicant was having a lunch break when the respondent told her to do some work. The applicant responded by saying that she was on her lunch break and would mop the floor after lunch. The respondent called her "a fucking idiot" and told her to leave. The applicant replied: "I want you to treat me with respect. I'm not an idiot." She then started to cry and left the salon. She returned to work the next day as she did not want to break her contract.

21 On 12/3/01 the respondent terminated the applicant's employment by informing her sister that the applicant was sacked.

22 The applicant gave evidence that the incidences have resulted in her feeling very irritable, upset and distressed. She has difficulty sleeping and has nightmares of being attacked by the respondent.

23 The applicant did not consult a doctor or psychologist as she was unable to afford to do so.

Relevant provisions of the Act

24 Section 22A of the Anti-Discrimination Act 1977 (the "Act") defines sexual harassment as follows:

For the purposes of this Part, a person sexually harasses another person if:

(a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the other person, or

(b) the person engages in other unwelcome conduct of a sexual nature in relation to the other person,

in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated....

25 Section 22B of the Act says as follows:

(1) It is unlawful for an employer to sexually harass:

(a) an employee...

(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.

26 In Hall v A & A Sheiban Pty Ltd (1989) 85 ALR 503 at 531 the Federal Court said: "Unwelcome sexual conduct may be insensitive, even offensive, but it does not necessarily constitute sexual harassment. The word "harass" implies the instillation of fear or the infliction of damage, as is indicated by the definition of the term in the Macquarie Dictionary:

1. To trouble by repeated attacks, incursions etc as in war

or hostilities; harry; raid;

2. To disturb persistently; torment, as with troubles, cares

etc.

27 In Spencer v Dowling (1996) EOC [92-851 at 79-325] the Commission commented on the legislative formula for proscribing sexual harassment as: "Only striking at conduct that is an abuse of power or influence which an employer has over the career prospects or working conditions of an employee. The section does not make unlawful, per se, sexual advances made by an employer to an employee, nor does it seek to proscribe the acceptance of such advances by the employee. In other words the sub-section is not intended to change the tide of human affairs. It is the demonstration of the preparedness to use the position of power and influence over the employee which is at the core of the conduct rendered unlawful."

Standard of proof

28 In determining whether or not the applicant has established her case, we have applied the civil standard of proof. However, in doing so, we have taken into account the gravity of the allegations and the serious consequences of any adverse findings to the respondent. (Briginshaw v Briginshaw (1938) 60 CLR at pp 361 -362; O'Callaghan v Loder (1984) EOC 92-024 at pp 75, 511-75, 512.)

Finding of sexual harassment

29 The Tribunal finds on the balance of probabilities that the applicant was subjected to acts of sexual harassment in employment and in the workplace, within the meaning of the Act. The conduct was unwelcome, it was of a sexual nature and it was such that a reasonable person would have anticipated that she would have been offended, humiliated and intimidated. The Tribunal finds the applicant to be an honest and credible witness and accepts her evidence in relation to the acts of sexual harassment by the respondent.

Relief

30 The applicant seeks damages for economic and non-economic loss. Pursuant to section 113(1) (b) (i) the Tribunal may award damages up to $40,000.00.

Non-economic loss

31 Damages for non-economic loss cover such things as hurt, distress, humiliation and injury to feelings.

32 The applicant's evidence is that she was deeply distressed and upset by the respondent's conduct. She suffered feelings of hurt, humiliation, low self esteem and low self confidence.

33 No medical evidence was tendered to support the applicant's evidence. The applicant said that she was unable to afford to see a doctor or a psychologist.

34 Notwithstanding this we find the applicant to be a credible witness and accept that she suffered considerable trauma following the harassment.

35 In addition we note that at the time of the harassment the applicant was a minor.

36 Taking everything into account we award damages for non-economic loss of $4000.00.

Economic loss

37 Damages for economic loss compensate for specific losses suffered as a result of the harassment. A complainant has a duty to mitigate her loss.

38 The applicant seeks damages for loss of income for a period of two months following her termination at the rate of $196.20 per week.

39 After her dismissal on 12/3/02 the applicant did not work for 2 months as she did not feel that she had sufficient confidence or that her self esteem was at an appropriate level for her to be able to work and risk harassment in another salon. She remains fearful that she will again be subject to this sort of treatment. She has been unable to pursue her hairdressing career and has recently started working in a café.

40 In this case we accept that the applicant's age and the traumatised state she was in prevented her from seeking work for a period of 2 months after the termination of her employment.

41 We note that the applicant has returned to the workplace after undertaking retraining.

42 Taking everything into account we award damages for the period 13/3/01 to 12/5/01 @ $196.20 per week making a total of $1709.83.

ORDERS

(1) The Tribunal finds the complaint substantiated.

(2) The respondent Karl Noyeaux is ordered to pay the applicant Sawrah Tabbouch the sum of $5706.83 by 31/1/03.

(3) No order as to costs.