Gary Russell Andrew & TWU v Linfox Transport (Aust) Pty Ltd [1995] IRCA 631

INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 4576 of 1995 B E T W E E N : GARY RUSSELL ANDREW & TWU Applicants AND LINFOX TRANSPORT (AUST) PTY LTD Respondent Before:Judicial Registrar Murphy Place: Melbourne Date: 4 December 1995 REASONS FOR JUDGMENT Sexual harassment is a term used to describe a wide variety of interaction between people. This proceeding arose out of an incident the Respondent alleged constituted sexual harassment. As a result of the incident the Applicant had his employment terminated. The parties were in dispute as to whether the incident constituted sexual harassment, whether the Applicant was accorded procedural fairness, whether the incident was serious enough to justify dismissal, and, if so, whether such an outcome was harsh, etc. The Applicant sought reinstatement to his position. A soft drink delivery goes awry The Respondent is a major transport company and has for the past seventeen years employed the Applicant. For the last seventeen years for the Respondent, and for two years prior to that for Coca-Cola-Amatil, the Applicant, who is aged 43, has driven a truck delivering Coca-Cola and other soft drinks. The Applicant delivers to some 40-50 customers per day in and around a major Victorian provincial city. One of the customers is a suburban retail video store. The Applicant has been delivering to this store for some 8-9 years, usually on a fortnightly basis, but occasionally more frequently. When the goods are delivered the Applicant is required to collect cash or a cheque. When this cannot be done the money is collected a few days later by a representative from Coca-Cola. Around lunchtime on Wednesday 16 August 1995 the Applicant made a delivery to the store. At that time the only staff member present was a 20 year old young woman ("the Complainant"). The Complainant, on her evidence, had only met the Applicant once or twice before, and did not know his first name. When the Applicant had completed the delivery he approached her at the counter near the door. The Complainant's version is that she advised the Applicant that she did not have the cash available for the delivery and as the manager was away was unable to give him a cheque. The Applicant then proceeded to say "we could go into the back room...and pay for the goods by having sex out there". He added "wouldn't it be great if we could have sex every time to pay for the deliveries". Then followed questions as to whether the Complainant had a boyfriend, to which the Complainant said "no". The Applicant then made a comment that she looked like a woman on a cover of a pornographic magazine that the Applicant had been looking at, and that she "was far sexier than her." The Complainant was wearing a vest over a singlet. The Applicant then reached across the counter and opened the flaps of the vest and told the Complainant that her breasts were far better than the woman's on the cover of the magazine. The Complainant was feeling very uncomfortable at the time, there being no one else in the store, and she moved from where she was standing to a chair behind the counter and remarked "I don't think so". The Complainant recorded, in a statutory declaration made a week after the incident, that the Applicant had said that she looked like sex all over and had made reference to her being a "splash sex girl", as well as making various other like comments about her. In evidence the Complainant said that she was stand-offish during the exchange and as soon as the Applicant made physical contact she walked away and "felt a bit better". She said that she did not feel threatened or in any danger of the Applicant "doing anything physical". She also said she didn't feel the need to call the police and didn't know whether he was serious or not. Her evidence was that the advances were uninvited, unsolicited and that the Applicant was "looking for something". The exchange lasted for about 10 minutes and at one stage the Complainant offered to contact the manager of the store in relation to payment for the goods. The Applicant said that this was unnecessary and the Complainant signed the invoice acknowledging that the goods had been delivered and the money remained outstanding. The Applicant's version of the incident in evidence was that he said to the Complainant, when the funds were unavailable, that they "could cut it out", meaning have sex. He claimed that the Complainant made a joking response to the effect "will the customers come to?" The Complainant denied this. He denied that he had used the word "sex" and said that the conversation had a friendly tone. He said he had a friendly relationship with the Applicant having met her during deliveries on about four occasions prior to this incident. He denied any reference to a pornographic magazine and the only physical gesture that he admitted was a movement with his left hand to brush away her hair to allow him to view any love bites. He asserted that he was "just stirring". In cross examination the Complainant said that there may have been a reference by the Applicant to love bites but said that her response was that blemishes on her neck were due to a reaction to a perfume. The Applicant admitted making a comment to the Complainant that "you could be a cover girl" but said that it was intended as a compliment. He admitted asking the Complainant did she have a boyfriend and said that she replied that she had seventeen. His response was that she must have been very popular. He admitted that he told the Applicant that she was attractive but didn't say "sexy". He claimed that the whole exchange was in jest - "in just a joking easy going way". He said that the Complainant didn't appear to have taken offence. After the exchange the Applicant left the store. A short time later the Complainant's manager returned to the store and she advised him of what had happened. She left the store around that time as her shift had ended and went home. An hour or two after this the owner of the store was alerted to the incident and he recalled the Complainant to the store and questioned her about the incident. He observed the Complainant as shaking, extremely nervous, disoriented and very distressed. Later that afternoon the Applicant returned to the store. He had heard from the Respondent's depot that there may have been a complaint about an incident at the store. He subsequently saw the owner of the store at another address. The owner stated that the Applicant "certainly expressed a wish to apologise". The Applicant also told the owner that "this is the last chance - things have hit the skids". The Applicant denied this latter comment but did admit to some difficulties with the Respondent's depot manager. The Respondent investigates and terminates The following day representatives of the Respondent, Coca-Cola-Amatil, and the store owner met the Complainant, her sister and mother at the Complainant's home. There the group obtained the Complainant's version of events. One of the Respondent's officers was Mr LaFontaine ("LaFontaine") the affirmative action officer. Another was a clerk, Shannon Blackley, who gave evidence and prepared the Minutes. At the meeting the Complainant was offered counselling if necessary. The options open to her in relation to the Applicant were also outlined. These included an apology, mediation and a possible dismissal of the Applicant. The Applicant performed his usual duties on 17 and 18 August. Late on 18 August a meeting occurred. Minutes and notes of the meeting were tendered in evidence. Present were the Applicant, another driver from the depot, two officials of the Transport Workers Union of Australia ("the Union"), Messrs Fraser and Goodwin, and representatives of the Respondent, including the two staff, LaFontaine and Blackley, who had been at the meeting with the Complainant the previous day. At the meeting the Complainant's allegations were presented to the Applicant for his response. The notes of the meeting record the Applicant's response as - "most parts occurred", "grossly exaggerated", "she was joking along" and "did not seem offended". The Minutes record the Applicant as commenting that "if she had in any way taken offence, the conversation would not have taken place." In the course of the meeting Mr John Anderson, the Operations Manager of the Respondent ("Anderson"), was asked of his intentions in relation to the incident. He indicated to the Applicant and to the two Union representatives that the incident and conduct were not to be condoned by the Respondent and that unless the Applicant could give a good reason he would have his services terminated. The Union representatives were unimpressed with this response and threatened industrial action. It was Fraser's evidence that he, in effect, dared him to terminate the Applicant's services then and there. Anderson then advised the Applicant that his services were terminated. After further discussion the termination was withdrawn. It was agreed that the matter would be dealt with under the disputes procedure in the Transport Workers Union Award 1983. The incident becomes an industrial dispute Clause 38 of the Award is titled:- "Settlement of Disputes or Claims" and provides a mechanism for the referral of industrial matters to a Disputes Committee consisting of representatives of the Union and the Australian Road Transport Industrial Organisation. In the event that the matter cannot be resolved by a Disputes Committee then the matter is referred to a member of the Australian Conciliation and Arbitration Commission ("the Commission"). (It is apparent that the clause, although still operative, has not been amended to reflect the changes to the name of the Commission effected by the Industrial Relations Act 1988("the Act")). The decision shall be final and"shall be accepted by the parties". The clause also provides that until the matter is determined work shall continue as normal. The Minutes of the meeting of 18 August state that the outcomes of the meeting were as follows:- "Gary Andrews (sic) suspended with pay until matter has been brought to the Tribunal. Second meeting with (the Complainant) to get an official statement to be scheduled as soon as possible. Matter to be lodged with Tribunal according to proper disputes procedure." [Throughout the notes and Minutes the terms "Tribunal" and "Commission" are used interchangeably.] The Minutes also record Anderson's intention to dismiss the Applicant, and the response by a Union representative, Goodwin, that there would be "severe action if the disputes procedure was not followed." In evidence Fraser was confused as to what the parties had agreed in relation to the dispute. He indicated that he thought that the parties were referring to an application to this Court under Part VIA of the Act. He also said he thought the Respondent would notify the Commission under Section 99 of the Act. Having heard the evidence of Anderson, and perused the Minutes of the 18 August meeting, I am satisfied that the parties agreed to progress the industrial dispute between them over the Applicant's continued employment by reference to Clause 38 of the Award. The suspending of the Applicant on full pay is consistent with this agreement. On Monday 21 August Anderson consulted with his superior in Melbourne and a decision was taken to terminate the Applicant's services. There was no further reference to the Union and the decision was taken pursuant to Clause 9 of the Award. This clause provides that the employer may terminate an employee for misconduct. Fraser was not advised of the decision at that stage. On 22 August Fraser contacted LaFontaine to arrange a round-table conference between the parties, including the Complainant. LaFontaine advised him that the Complainant had declined to participate in such a meeting. Fraser was not told of the decision to dismiss the Applicant. Anderson claimed that during that week the Respondent tried unsuccessfully to contact the Applicant. He also said in evidence that he had been in contact with the Union. Anderson admitted not advising either the Applicant or the Union that the Respondent was resiling from its agreement to progress the matter through the disputes procedure in the Award. Fraser denied any contact with the Respondent during the week commencing 21 August. The Applicant said he received no communication from the Respondent that week. No-one notified the Commission. On Tuesday 29 August the Respondent contacted Fraser and a meeting was arranged between officers of the Respondent, Fraser and the Applicant that day at the Respondent's depot. The meeting was short. The Applicant was advised that he was terminated and was handed a cheque with his entitlements. When the Applicant, who lived some distance out of town, arrived home after his dismissal he found a lettergram asking him to contact the Respondent on 29 August. The following day Fraser attempted, via the Melbourne office of the Union, to notify the Commission of an industrial dispute under Section 99 of the Act. He was advised that as termination had occurred it was necessary to issue these proceedings, which he did the following day. During the meeting with the Complainant on 17 August the owner of the video store raised the issue of ensuring that the Applicant did not return to the store. Subsequently he wrote to Coca-Cola-Amatil requesting that the Applicant no longer do that run. On 21 August Coca-Cola wrote to the Respondent requesting the Respondent to no longer employ the Applicant in its Coca-Cola operations. The Complainant's account more probable The Court prefers the Complainant's account of the events of 16 August. She had recorded her account in a declaration made a week later. She gave her evidence in a straightforward manner and was not deflected in cross examination. Her distressed demeanour after the incident corroborates her account that something untoward happened. The Applicant, in contrast, was vague and contradictory in his denial of the Complainant's account. While admitting certain parts of her version he denied any reference to sex and claimed that the whole exchange was light hearted. His admission that he had moved his hand towards the Complainant's neck to better observe it is a potent indication as to the sexual flavour of the conversation. He is recorded as having admitted most parts of the Complainant's story when the matter was discussed in the meeting with the Respondent on 18 August. In the meeting he is recorded as asserting a closer degree of familiarity with the Complainant that he admitted at trial, and that the Complainant admitted. Having regard to his partial admissions and prior inconsistent statements, and the presentation and demeanour of both witnesses, I find that the inherent likelihood is that the conversation and actions, as described by the Complainant, occurred and did not have the flippant or joking quality asserted by the Applicant. Sexual harassment as a species of misconduct In evidence was the Respondent's Staff Handbook. Under the heading "Linfox Rules" the handbook lists "some forms of conduct that we cannot tolerate". It states that "any person found in breach of these rules is liable to instant dismissal". Then follows a list of matters including "fighting and use of obscene language", "smoking in non-smoking areas", "stealing or theft". The last entry in the list is as follows:- "Sexual Harassment is unlawful and will not be tolerated on Linfox or Client Premises." The Applicant was issued with the Handbook. Sexual harassment is a term that probably has only been in general usage for the last decade or so. It is statutorily defined in equal rights statutes such as the Victorian Equal Opportunity Act 1984 and the Commonwealth Sex Discrimination Act 1984. Statutory formulations have been amended over time as emphasis and community perceptions have shifted from an initial focus on the need for detriment and repeated conduct. An early emphasis in a provision like Section 20 of the Victorian Equal Opportunity Act is reference to workplace behaviour between persons in differing positions of power. At the present time however, the term, both in its statutory and ordinary meaning, refers to a wide range of behaviour both in and beyond the workplace. Thus a useful definition of sexual harassment is contained in the Sex Discrimination Act 1984 (Cth). This definition was inserted by amendments in 1993 and in the Court's view reproduces the ordinary meaning of the term. Section 28A(1) provides:- "... a person sexually harasses another person .... 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 where a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimidated." This definition does not require a victim to suffer any detriment. Further, a single act can be brought within the rubric of sexual harassment. In addition the test as to whether the conduct (which includes a statement) is unwelcome is an objective one - "a reasonable person". In that sense sexual harassment does not require, to borrow a term from the criminal law, mens rea, or a guilty mind. Within the above definition, a very wide variety of conduct is caught. Such conduct can range from the sexual innuendo, to implicit and explicit sexual propositions, to physical intimacy in a variety of forms. Characterising the conduct as sexual harassment It is now necessary to apply the above definition of sexual harassment to the present incident. The Court is satisfied that what occurred was sexual harassment, but how serious was it? In the Court's view the proper way to characterise the incident is in the lower to middle of the range of conduct that falls within both the above statutory and ordinary meaning of the term sexual harassment. Any such characterisation will always be a matter of impression and judgment. It was a single incident and the comments were of an offensive and boorish nature. The physical contact, while invasive and demeaning, was not of an intimate nature. The incident as a whole could not be characterised as an assault, let alone a sexual assault. Cf. Thomas v Westpac Banking Corporation (Industrial Relations Court of Australia, Wilcox CJ, 28 June 1995). The Complainant did not feel in danger of the Applicant doing anything "physical". The incident had a significant, though apparently short-term, impact on the Complainant. She was visibly distressed both on the day of, and the day after the incident. Overall, the behaviour of the Applicant is the type of behaviour that Australian males have often been criticised for, and which society has indicated through legislation such as the Sex Discrimination Act, is unacceptable. Did the Respondent have a valid reason for the termination? The Respondent had listed in its Staff Handbook sexual harassment as an example of misconduct. The Respondent, correctly in the Court's opinion, formed the view that the Applicant had engaged in sexual harassment and thus misconduct. Having formed this view the Respondent had a "sound, defensible or well founded" reason to terminate the Applicant's employment: Selvachandran v Peteron Plastics Pty Ltd (Industrial Relations Court of Australia, Northrop J, 7 July 1995). The Respondent has thus discharged its onus of proof under Section 170EDA that it had a valid reason to terminate the Applicant's employment under Section 170DE(1) of the Act. Was termination of employment harsh, unjust or unreasonable? Counsel for the Applicant submitted that, even accepting that the incident constituted sexual harassment, the termination of the Applicant's employment contravened Section 170DE(2) of the Act as being too harsh a response. He referred particularly to the Applicant's seventeen years of service with the Respondent. The uncontested evidence was that the Applicant had a good service record with no warnings for any similar types of incidents or indeed any disciplinary matters. This is an important consideration given the fact that the Applicant was in a customer contact position over this period and it is a reasonable inference that if he had previously engaged in this type of conduct on a regular basis there would be a complaint to either the Respondent or to Coca-Cola-Amatil. Another matter upon which Counsel for the Applicant relied was the willingness of the Applicant, on the day of the incident, to apologise. This, he argued, shows an acknowledgment by the Applicant at the time to admit that he did step over a line. His contrition is recorded in the Minutes of the meeting of 18 August. In the overall circumstances of the termination this factor is of relatively minor moment. Most people will offer to apologise when they have done someone wrong, and been caught. The most important factor upon which the Counsel for the Applicant relied was the failure of the Respondent to provide to the Applicant any form of training or education in the requirements of its staff in the field of sexual harassment. In the Minutes of the meeting of 17 August LaFontaine is recorded as saying "that Linfox company policy in this area [of sexual harassment] was very new however we were making employees aware of proper conduct when dealing with the public, in particular clients and their customers". In evidence, Anderson admitted that while the company had a program of education of its employees in relation to sexual harassment that program had not reached the Applicant in the provincial city in which he was based. The fact that the Respondent thought it necessary to have an education program in relation to the obligations of its employees to avoid sexual harassment is an indication that education is often required to ensure that employees meet the norms laid out in legislation such as the Sex Discrimination Act 1984. It is commonplace for government agencies and companies to provide such policies and programs for their employees. The Respondent had provided such a program but it had not extended to the Applicant. The only reference, as far as the Applicant was concerned, was the cursory reference in the Staff Handbook. The broadening of the concept of sexual harassment, as discussed above, has cast a very wide net over conduct that heretofore was not unlawful. The failure of the Respondent to bring to the Applicant's attention, within his own workplace, his new obligations to avoid engaging in conduct that constitutes sexual harassment makes it harsh, in the context of his good service record, to terminate him for a single incident of this type. The comments in Bostik (Australia) Pty Ltd v Gorgevski (No 1) (1992) 36 FCR 20 at 29 per Sheppard and Heerey JJ are apposite here:- "Employers can promulgate policies and give directions to employees as they see fit, but they cannot exclude the possibility that instant dismissal of an individual employee for non-compliance may, in the particular circumstances of an individual case, be harsh, unjust and unreasonable."