Watson, Jenny Marie v NSW BHP Steel Pty Ltd [1998] FCA 597

FEDERAL COURT OF AUSTRALIA

INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - review of decision of judicial registrar - complaints of sexual and other harassment - applicant's resignation from her employment was voluntary though under pressure - employment not terminated at the initiative of the employer - United States doctrine of "actionable constructive discharge" Workplace Relations Act 1996 (Cth): s 170DF, s 170EDA(2), s 170CB Burazin v Blacktown City Guardian Pty Ltd (1996) 142 ALR 144, referred Mohazab v Dick Smith Electronics (No 2) (1995) 62 IR 200, applied Grout v Gunnedah Shire Council (1994) 57 IR 243, referred Gunnedah Shire Council v Grout (1995-6) 134 ALR 156, applied Jackson & Wilson v Monadelphous Engineering Associates Pty Ltd (unrep, IRCA, 17/10/97), cons JENNY MARIE WATSON v NSW BHP STEEL PTY LTD NI 2181 of 1996 MADGWICK J SYDNEY 1 JUNE 1998

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NI 2181 of 1996

BETWEEN: Jenny Marie Watson

Applicant

AND: NSW BHP Steel Pty Ltd

Respondent

JUDGE: MADGWICK J

DATE OF ORDER: 1 JUNE 1998

WHERE MADE: SYDNEY

SHORT MINUTES OF ORDER

THE COURT ORDERS THAT: 1. The application is dismissed.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NI 2181 of 1996

BETWEEN: Jenny Marie Watson

Applicant

AND: NSW BHP Steel Pty Ltd

Respondent

JUDGE: MADGWICK J

DATE: 1 JUNE 1998

PLACE: SYDNEY

REASONS FOR JUDGMENT HIS HONOUR: This matter was first heard by a judicial registrar, who dismissed the applicant's application for relief on the ground that there was no termination of her employment at the initiative of her employer, the respondent. This is a review of that decision pursuant to s 377 of the Workplace Relations Act 1996 (Cth) ("the Act"). Background The applicant, Ms Watson, was employed as a clerk at the rolling mill operated by the respondent BHP at its complex at Rooty Hill. She had been appointed permanently to that position on 5 September 1994 after completing several short term contracts, working as a secretary for various managers employed by BHP. Her duties as a clerk involved performing a range of administrative tasks for about 15 senior staff, but she was directly responsible to Mr Dawson, the manager of the rolling mill. Following an incident which occurred on 23 August 1996, the applicant tendered her resignation to Mr Prestige, the manager of the Rooty Hill operation, on 3 September. The applicant then lodged an application seeking reinstatement and compensation on the ground that she was unlawfully terminated from her employment. In her application, the applicant stated that the reason for her termination was that: "I felt compelled to resign as a result of: sexual harassment and mistreatment arising from a physical disability and temporary absence from work because of illness on Friday the 23/8/96." Claims of harassment The applicant claimed that on a number of occasions when heavy items such as furniture or boxes needed to be moved, Mr Dawson would tell her to "use her feminine wiles" to get men to provide her with assistance. On other occasions, Mr Hill, a supervisor, would make jokes at the applicant's expense and would throw papers on her desk instead of handing them to her. On one occasion in October 1995 Mr Hill abused her when she was working outside her office for not answering her telephone. It was submitted that such incidents were indicative of a patronising attitude towards the applicant. Unpleasant as such experiences may have been, they do not seem to have been relevant to the applicant's decision to resign. In about October 1994 the applicant and Mr Van Leeuwin were involved in a relationship. Mr Van Leeuwin was a shift leader at the rolling mill. The applicant then began receiving anonymous harassing telephone calls at home, and three months later received similar calls at work. She also started to receive anonymous notes that were left on her car at work and at her home. This continued for some months and in March 1995 the applicant made a complaint to Mr Walsh, the Human Resources Manager, and Ms Pigott, the Human Resource Officer. Her complaint was supported by Mr Van Leeuwin who had also received anonymous letters. Ms Pigott advised the applicant and Mr Van Leeuwin to report the matter to the police. It was also suggested that the applicant and Mr Van Leeuwin prepare a statement about the harassment and give it to Ms Pigott for "safe keeping". The applicant made a number of complaints to the police and Telstra about the telephone calls, and also changed her address and telephone number several times, although it seems to no avail. As a result of the continuing harassment and what the applicant perceived to be problems at work, the applicant felt very stressed and was later diagnosed as suffering from depression. In late 1995, the applicant broke off her relationship with Mr Van Leeuwin and resumed a former relationship which she had had with another man. Around April 1996, Mr Van Leeuwin, unwilling to accept his loss, became, the applicant describes, "increasingly obsessive" and would frequently telephone her, write her letters and interrupt her at work. Mr Van Leeuwin's behaviour became another source of anxiety for the applicant. This situation came to a head in June 1996. Mr Van Leeuwin was waiting for the applicant at her desk one morning when she arrived at work. The applicant refused to speak to him. Mr Van Leeuwin telephoned her several times from his office but she again refused to speak to him. Mr Van Leeuwin then approached the applicant and asked her to follow him to another office, which she did. Mr Van Leeuwin dialled a telephone number and gave the receiver to the applicant to listen. Mr Van Leeuwin had evidently dialled the applicant's silent telephone number and her answering machine could be heard on the line. Mr Van Leeuwin handed the applicant a piece of paper with her telephone number on it and told her that "there is no point changing your telephone number - I bought this off a friend of mine for $500". The applicant became very upset when Mr Van Leeuwin refused to leave. The applicant rang for Mr Dawson's assistance and then went home. The next day, Mr Dawson spoke to two other employees about the relationship between the applicant and Mr Van Leeuwin. They confirmed the applicant's version of events. Mr Van Leeuwin was moved to another area away from the applicant. Later that day, Mr Dawson told the applicant not to tell anyone about the incident, and "just continue to smile, be nice, act as if nothing has happened, you'll have to continue to work with him and do his work". No further complaints were made by the applicant about Mr Van Leeuwin until the day of her resignation in September 1996. The applicant's medical condition At the age of 15 the applicant had been diagnosed as suffering from endometriosis. In January 1995 the applicant was absent from work for two weeks following an operation related to her condition. She claims that during those two weeks Mr Dawson continually telephoned her to enquire when she would be returning to work. She consulted a specialist about her condition and was required to take about two hours from work every four to six weeks to attend appointments. The applicant claims that Mr Dawson would question her about these appointments and ask her improper personal questions about her condition. She said that this continued for about six months until she was given an ultimatum to choose between attending the consultations or her work. She did not attend any more appointments out of fear of losing her job. Mr Dawson denies that he made such enquiries or ultimatums. I do not doubt that Mr Dawson's questions occasioned Ms Watson embarrassment and a degree of distress. In my opinion, they were well-meant but proceeded from blundering insensitivity on Mr Dawson's behalf rather than lewdness or any other improper motivation. The applicant suffered from a virus during the week of 15 July 1996 and said that she was required to report via telephone to Mr Dawson every day. She then took a weeks' annual leave. On her return on 30 July, she was called into Mr Dawson's office. My Dawson said words to the effect that some people would think that she was a hypochondriac and that she had a tendency to exaggerate. The applicant says she felt guilty, as if by being ill she had done something wrong. Mr Dawson then referred to a document which set out the amount of sick leave that the applicant had claimed and said "this seems to be a bit of a problem, what can we do to fix it?" The applicant told him that she thought she had done the right thing by taking a week of her annual leave whilst she was ill, to which Mr Dawson replied that he thought that was a good idea. The August 23 incident On Friday 23 August the applicant's menstrual cycle began and, as a result of her endometriosis, she was in considerable pain. The applicant's clothes were soiled and she approached Mr Hill for permission to go home. There was an emergency in the mill at that time and Mr Hill, being preoccupied with the urgent matter at hand, told the applicant that she could not go home. The applicant went to the stores section and obtained a change of clothes. Mr Kelly, an in-house accountant, was called and, on seeing that the applicant was not well and was distressed, told her that she should go home. Ms Chapman, the clerk in the stores room, drove the applicant home. Later that afternoon Mr Kelly spoke with Mr Hill about the incident, who did not remember it. Mr Hill tried to telephone the applicant at home but was unable to find her current telephone number. Mr Hill then told Mr Dawson that there had been an apparent misunderstanding between himself and the applicant and that she had gone home upset. On Monday 26 August Mr Dawson spoke to Mr Kelly and Ms Chapman to ascertain what had happened. Both of them told Mr Dawson that when they saw the applicant the previous Friday she was very upset and had told them that Mr Hill would not allow her to leave work. Mr Dawson was concerned that an there was an implication that Mr Hill had kept the applicant at work, knowing the condition that she was in. Mr Dawson wanted to ascertain what had happened and asked the applicant her version of events. She told him that she understood Mr Hill was concerned about the emergency at the mill, and that it was a misunderstanding. Mr Dawson commented that the applicant did not seem concerned about what had happened. Mr Dawson then spoke to Mr Hill twice about the incident. He denied that he had said anything to the applicant. Mr Dawson again asked the applicant questions about what had happened, and, the applicant claims, also asked her inappropriate personal questions about her menstruation cycle. Again, I think Mr Dawson may have displayed insensitivity, but not impropriety. The next day, being satisfied that there had been a misunderstanding, Mr Dawson told the applicant that she should ensure that Ms Chapman did not retain any impression that Mr Hill had known about the applicant's condition, when he had said that she could not go home. As the applicant got up to leave, she claims that Mr Dawson said "you must have been a little embarrassed on Friday but you must really be embarrassed by now". The applicant says that she felt degraded and humiliated by the experience, that it arose out of something which she had not regarded as being important, and that Mr Dawson had caused the incident to be blown out of proportion. That afternoon, the applicant telephoned the Anti-Discrimination Board. Two days later, on Thursday 29 August, the applicant made a written complaint of sexual harassment against Mr Dawson and gave the complaint to Ms Pigott. Ms Pigott told the applicant that there would need to be an investigation of the complaint and that she would speak to Mr Walsh about the appropriate steps to be taken. On Mr Walsh's advice, Ms Pigott told the applicant that she would contact each of the persons named in her complaint and explain to them the process involved in investigating the allegations. Ms Pigott also told the applicant that she would need to review the allegations to ensure that she was satisfied that all issues had been covered, because once the investigation commenced no new allegations could be made. The applicant was given a few days to work on her complaint. Ms Pigott then spoke to the people involved and informed Mr Dawson that the applicant had formally lodged a complaint against him. Ms Pigott emphasised that he was not to talk to the applicant about the complaint and, if a situation arose where he needed to speak to her about any significant matter, Ms Pigott would act as a third party. The applicant continued to work under Mr Dawson's supervision for the rest of the week. The resignation On Monday, 2 September, the applicant arrived at work to find two notes on her desk. One was a handwritten letter from Mr Van Leeuwin. Although it is understandable that the applicant may have viewed that letter as constituting further unwanted attention from him, its terms are those of an apology and, from the tone of the letter, it seems genuine. The other was a note from Mr Dawson asking about some furniture that he had requested some months ago but had since decided not to purchase. The applicant took this letter as vindictive criticism of her, and decided that she had had enough and wrote out her resignation, giving one weeks' notice. That afternoon she handed her resignation to Mr Prestige together with the letter from Mr Van Leeuwin. The next day, the applicant attended a meeting with Mr Prestige and Ms Pigott. They asked if the applicant was happy with her decision, to which she said it would be "a relief". The applicant was invited to provide a further statement of allegations concerning her complaint about Mr Dawson so that the investigation could proceed. The applicant never furnished any such statement. Her last day of work was 6 September 1996.