CITATION: Franks v Marco's Italian Gourmet Cafe Pty Ltd & Anor [2004] NSWADT 87 DIVISION: Equal Opportunity Division APPLICANT Leanne Susan Franks PARTIES: FIRST RESPONDENT Marco's Italian Gourmet Cafe Pty Ltd SECOND RESPONDENT Marco Salerno FILE NUMBER: 031011 HEARING DATES: 30/10/2003-31/10/2003 SUBMISSIONS CLOSED: 11/28/2003 DATE OF DECISION: 05/07/2004 BEFORE: Needham J - Judicial Member; Bolt M - Non Judicial Member; Weule B - Non Judicial Member APPLICATION: Sex Discrimination - In work - Sexual Harassment - In workplace MATTER FOR DECISION: Principal matter LEGISLATION CITED : Anti-Discrimination Act 1977 Briginshaw v. Briginshaw, (1938) 60 CLR 336 CASES CITED: Shellharbour Golf Club v. Wheel (1999) NSWSC 224 Caton v Richmond Club Limited [2003] NSWADT 202 APPLICANT REPRESENTATION: Mr de Meyrick, barrister RESPONDENT Mr Morgan, barrister ORDERS: 1. The first and second respondents are to pay the complainant the sum of $2,500.00 within 28 days of the date of this decision by way of compensation for the damage the complainant has suffered by reason of the sexual harassment allegations which have been made out.; 2. No order as to costs. REASONS FOR DECISION The Application 1 Ms Leanne Franks, the applicant, was employed as head waitress at "Marco's Italian Gourmet Café", an Italian restaurant in Gloucester, New South Wales, from 26 November 2001 until 27 December 2001. She lodged a complaint with the Anti-Discrimination Board on 19 February 2002 alleging discrimination on the ground of sex in the area of employment, and sexual harassment. The complaint was against both her employer, Marco's Italian Gourmet Café Pty Ltd and the principal of that company, Marco Salerno. In her statement Exhibit B, the applicant says that she was employed by Mr Salerno, however, the hearing proceeded on the basis that she was employed by the corporate entity and that her daily contact was with Mr Salerno (see exhibit A, tab 5, letter 16 September 2002 from solicitor for respondents to Anti-Discrimination Board, which confirms that the employer was the corporate entity). 2 The President of the Anti-Discrimination Board investigated the complaints and referred them to the Equal Opportunity Division of this Tribunal pursuant to s 94(1) of the Anti-Discrimination Act 1977 ("the Act"). 3 Ms Franks made a number of complaints to the Board which were not, for various reasons, agitated during the hearing before the Tribunal. We will not consider those matters except where they bear upon the complaints which formed the basis of the hearing. A further matter which was raised in evidence, but not relied upon in submissions, is the allegation that the respondent muttered the words "slut, slut, slut" at the applicant. As this matter arose only in cross-examination, and was not part of the complaint or the matters relied on in submissions, the Tribunal will not consider that allegation. 4 The complaints which were relied upon are conveniently summarised in the applicant's submissions as follows:- Ms Franks was propositioned by Mr Salerno; Mr Salerno enquired into the quality of her marital relationship; Mr Salerno questioned her about her bra size; Mr Salerno made intimate physical contact with her in the context of commenting upon her perfume; and Mr Salerno made comments regarding the physical development of a 16yo work colleague of Ms Franks. (see paragraph 3, applicant's written submissions; statement of applicant Exhibit B, and oral evidence of applicant). 5 The second respondent, Mr Salerno, gave evidence on behalf of himself and the first respondent. While he agreed with some of the allegations, he said that others had happened in a manner different to that set out by the applicant, and others had not happened at all. He says that the applicant was jealous of his relationship with Tara, his now wife, and that she (the applicant) propositioned him for sex. 6 The complaints raise issues under the following sections of the Act, relevantly extracted:- Section 22A: Meaning of "sexual harassment" 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. Section 22B - Harassment of employees, commission agents, contract workers, partners etc (1) It is unlawful for an employer to sexually harass: (a) an employee … Section 24 - What constitutes discrimination on the ground of sex (1) A person ( "the perpetrator" ) discriminates against another person ( "the aggrieved person" ) on the ground of sex if, on the ground of the aggrieved person's sex or the sex of a relative or associate of the aggrieved person, the perpetrator: (a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of the opposite sex or who does not have such a relative or associate of that sex, or (b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons of the opposite sex, or who do not have such a relative or associate of that sex, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply. (1A) For the purposes of subsection (1) (a), something is done on the ground of a person's sex if it is done on the ground of the person's sex, a characteristic that appertains generally to persons of that sex or a characteristic that is generally imputed to persons of that sex." Section 25 - Discrimination against applicants and employees (1) It is unlawful for an employer to discriminate against a person on the ground of sex: (a) in the arrangements the employer makes for the purpose of determining who should be offered employment, (b) in determining who should be offered employment, or (c) in the terms on which the employer offers employment. (1A) … (2) It is unlawful for an employer to discriminate against an employee on the ground of sex: (a) in the terms or conditions of employment which 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, or (c) by dismissing the employee or subjecting the employee to any other detriment." Section 53 - Liability of principals and employers (1) An act done by a person as the agent or employee of the person's principal or employer which if done by the principal or employer would be a contravention of this Act is taken to have been done by the principal or employer also unless the principal or employer did not, either before or after the doing of the act, authorise the agent or employee, either expressly or by implication, to do the act. (2) If both the principal or employer and the agent or employee who did the act are subject to any liability arising under this Act in respect of the doing of the act, they are jointly and severally subject to that liability. 7 We have anonymised references in this decision to a fellow employee of the applicant, referring to her as T, as there are personal references to her at a time when she was 16 years old. The Applicant's Case 8 The applicant was 27 years old at the time of the hearing, married with two young daughters, and living in Gloucester. She was also referred to in some documents before the Tribunal as Leanne Spiteri, that being her name before marriage. She made a statement, which became Exhibit B, on 12 May 2003. 9 Exhibit B sets out the course of her employment with the café. She commenced employment on 26 November 2001, working 7 days a week for two weeks during the set-up period for the restaurant, which had just opened. She was then employed for 6 days a week on a "double-daily shift of 9.30 am to 2.30 pm and then 4.30 pm to approximately 11 pm, depending on the customers in the restaurant" (ex B, par 2). 10 The applicant's employment ceased on 27 December 2001 when there was a dispute between the applicant and Mr Salerno's girlfriend, Tara Spokes (now Tara Salerno, his wife) about an order of coffees for Ms Spokes and her friend. There was an argument between Ms Franks and Mr Salerno, which culminated in a physical scuffle (out of which arose an AVO sought against Ms Franks), and the termination of Ms Frank's employment. 11 What follows is the allegations distilled from the submissions on behalf of the applicant as set out above, and details from the statement and the oral evidence of the applicant. a) Ms Franks was propositioned by Mr Salerno; i) Mr Salerno said to her, on or about 30 November: "I would marry you today if you were not married" (exhibit B, par 4) ii) Mr Salerno asked her to go swimming "in the first couple of weeks" of her employment, during her break between the morning and afternoon shifts. She felt uncomfortable about this and refused on each occasion (exhibit B, par 8). b) Mr Salerno enquired into the quality of her marital relationship. i) Mr Salerno asked her, on or about 30 November, "Are you happily married and in love with your husband?" She said, "Yes, yes I am". He said, "Because some people are married and are not in love". She felt offended and said, "I am in love with my husband" (exhibit B, par 5). c) Mr Salerno questioned her about her bra size; i) Mr Salerno asked Ms Franks on or about 1 December 2001, "What's your bra size?". She felt uncomfortable and said, "12B". He also asked T., another employee, about her bra size. (exhibit B, par 6). ii) Ms Franks' statement is corroborated by T. (exhibit C, par 4). d) Mr Salerno made intimate physical contact with her in the context of commenting upon her perfume. i) Mr Salerno said to Ms Franks, in the first few weeks of her employment, "I like the smell of your perfume, it is the same perfume my mother wears". She said he did this while sniffing her neck, and sometimes touching her neck with his nose (exhibit B, par 5) e) Mr Salerno made comments regarding the physical development of a 16yo work colleague of Ms Franks. i) During the first two weeks of her employment, Mr Salerno said to Ms Franks on a couple of occasions, "T. (the work colleague) has the body of a grown woman". T. was 16 years old at the time. 12 T gave evidence by way of a statement dated 15 March 2003 (which became exhibit C) in which she addresses the "what's your bra size?" comment. She was cross-examined on the comment, and corroborated the applicant's account (see T 93-5, day 1). She does not deal with any other relevant accusation against Mr Salerno. 13 Ms Franks denies that she ever propositioned Mr Salerno (see below), and denies that she was jealous of his relationship with Ms Spokes. 14 In her complaint to the Anti-Discrimination Board, Ms Franks says that she and Mr Salerno "had a problem" on 21 December 2001, but that that problem was resolved (exhibit A, tab 1, par 6). The "problem" referred to related to the provision of food by Mr Salerno to his employees. She says, however, that Mr Salerno's attitude to her "changed" after this (T26, day 1) and he told her that he didn't "like her as a person", only "as a worker". 15 On 27 December, she went to work where Ms Spokes and her friend were sitting in the restaurant's courtyard. Ms Spokes' friend wanted a moccochino, and Ms Franks told her that that wasn't on the menu (exhibit A, tab 1, par 6). This incident escalated with Mr Salerno becoming involved, and he said to her, "I don't like your attitude". She replied, "I don't like your discrimination towards me, I want you to pay me up to now then", which he did. She ripped a page out of the pay book, and a scuffle ensued. She says (exhibit A, tab 1, par 8) that "Marco was grabbing me at that point and had hold of … both my upper arms, he yelled out to Tara". She put the paper in her mouth and chewed it. He then let her go. 16 She sought medical attention for her wrist (see exhibit A, tab 1, dated 8 January 2002), and complained to the police (exhibit A, tab 1). She has also seen a psychiatrist (whose report is exhibit E) and has taken anti-depressant medication. She has taken Valium and Panadeine Forte, and attributes this to the incidents suffered during her employment by the respondents. She says that she has only recently (in August 2003) obtained employment, and that it was difficult for her, in a small town, to obtain employment after the events set out above. 17 The applicant was cross-examined at length about the allegations. She agreed that she "wasn't sure" what was behind the invitation to go swimming, other than that she felt "offended and harassed" (T 45, day 1). She was also cross-examined about her reaction to the "T. has the body of a grown woman" comment, with which she says she agreed, and that she found it was a topic which she did not expect to have discussed at work (T48, day 1). She says that she agreed that T. was mature, but that she "wasn't talking about her body" (T48, day 1). 18 The applicant seeks "a significant award" of damages, based on a "course of conduct" by the respondents, and unfair treatment in relation to her termination of employment. She also points to her difficulty in obtaining work in a small town after the dismissal, and the symptoms of stress arising out of the incidents (see paragraph 18, applicant's submissions). In the complaint to the Anti-Discrimination Board, she sought an apology from Mr Salerno to be published in the local paper. The Respondents' Case 19 Mr Salerno made a statement dated 13 July 2003 (exhibit 1), and gave oral evidence. He says that he interviewed Ms Franks on 5 November 2001 when she applied for a job, and that he employed her on a trial period for 3 weeks. It is useful to set out Mr Salerno's replies to Ms Franks' allegations in the same order as dealt with above, and a summary of the respondent's submissions on each matter. a) Ms Franks was propositioned by Mr Salerno; i) He denies that he said he would marry her if she weren't already married (exhibit 1, par 9) ii) The submissions on behalf of the respondent were to the effect that this is unbelievable, given that Mr Salerno had just met his future wife. iii) He denies that he asked her to go swimming with him (exhibit 1, par 9) iv) The respondent's counsel submitted that an invitation to go swimming is not necessarily an invitation of a sexual nature, and in this case, was not. b) Mr Salerno enquired into the quality of her marital relationship; i) He denies that he asked her whether she was in love with her husband (exhibit 1, par 5), but in cross-examination, conceded that he said it (T122, day 1) ii) It was submitted for the respondent that although this was possibly not appropriate, being an enquiry into a private matter, it did not amount to conduct of a sexual nature. c) Mr Salerno questioned her about her bra size; i) Mr Franks denies that this happened, on the date alleged or at any other time (exhibit 1, par 6), and submits that the Tribunal should find that the conversation did not take place. d) Mr Salerno made intimate physical contact with her in the context of commenting upon her perfume; i) Mr Salerno agrees that he asked her what perfume she was wearing, on one occasion, but said that he sniffed the air, not her neck, and that he never touched her in that way (exhibit 1, par 8). ii) The respondent's counsel submitted that the comment on the perfume was innocent and could have no sexual overtones, and that "one can hardly imagine the smelling of Mr Salerno's mother's perfume provided a trigger for … unacceptable intimate contact with Ms Franks". e) Mr Salerno made comments regarding the physical development of a 16yo work colleague of Ms Franks. i) He agrees that he made the comment alleged about T, but says that it was in a general discussion and not said in a sexual way. He said that Ms Franks agreed with him. ii) The respondent's counsel submitted that this could not be a "sexual" comment, since "body" is not necessarily a sexual matter. 20 Further, Mr Salerno claims that Ms Franks asked him, on or about 2 December 2001, that "if we have sex does that mean that I will get a full time job?". He said, "what?" and she quickly changed the subject. Mr Salerno is of the view that his relationship with Ms Franks changed after he started seeing his now wife, Tara, and that Ms Franks was "jealous" of his attentions to Tara. She said to him in early December, "you shift all your attention to her", and advised him that "Tara has been in a gay relationship and you shouldn't be with her – she is not the girl for you" (see exhibit 1, pars 12 and 14). 21 Mr Salerno's case in relation to the allegations of discrimination was that any "discrimination" was not on the basis of sex, but was based on personalities and abilities as a worker in a café, and thus not unlawful. As to the harassment, he denies that the comments or conduct he admits were meant in a sexual way or could reasonably be taken in a sexual way, and denies that the other aspects of the conduct or comments occurred. Consideration 22 The standard of proof required is the Briginshaw standard (Briginshaw v. Briginshaw, (1938) 60 CLR 336) which requires a level of reasonable satisfaction in cases of serious allegations, such as the allegations in this case. 23 The applicant submits that the Tribunal should find that the conduct of Mr Salerno has been substantiated, and that it falls within the definition of "sexual harassment" in s 22A, and "sex discrimination" within the meaning of ss 24 and 25 of the Anti-Discrimination Act. 24 As set out above, the respondents submit that the allegations by the applicant, taken at their highest, do not amount to sexual discrimination or harassment. The Tribunal needs to weigh the factors on each side, including the impression of each witness giving evidence, and make a finding of fact as to whether each matter occurred. Once a finding of fact has been made, it must be considered, as a matter of law, whether each fact falls within the definitions of sexual harassment or sex discrimination. 25 Taking the harassment claims first, s 22A requires that the respondent:- a) made an unwelcome sexual advance; or b) made an unwelcome request for sexual favours; or c) engaged in other conduct of a sexual nature in relation to the applicant, and d) the advance, request or conduct was such that a reasonable person, having regard to all the circumstances, would have anticipated that the applicant would have been offended, humiliated or intimidated. 26 As to discrimination, the allegations of the applicant were squarely focussed on harassment. The entirety of the applicant's submissions on this head read:- "Whilst it may prove unnecessary to decide, it is also submitted that the offending conduct constitutes Sex Discrimination within the meaning of Part 3 of the Act (see, eg, ss 24 and 25)." 27 No evidence was brought by the applicant as to how other employees of the respondents were treated, nor of relevant conduct which would amount to discrimination. While the sexual harassment alleged could, in a proper case, amount to discrimination, the case has not been argued or put forward as a discrimination case. 28 The factors which the Tribunal has considered in coming to the findings below are, inter alia, a) The demeanour and attitude of each of Ms Franks and Mr Salerno. As parties to the proceedings, their oral evidence was carefully observed. Ms Franks gave evidence in an intense and believable way. She appeared to have been adversely affected, both by the events at the café and by other factors, such as the subsequent litigation, her health, her own marriage problems and the problems she has had finding employment since the dismissal from the café. It is considered that, once the other factors affecting the evidence are filtered, she is a witness of truth. Her evidence was corrobrated in important aspects by T, the witness on the "bra size" allegation. Mr Salerno, while generally being open and honest in his answers, did not impress in his attempts to minimise the comments in relation to T, nor were his denials of the "bra size" comments believable. b) The corroborating witnesses. T. corroborated the essentials of the applicant's story, and Mrs Salerno corroborated those parts of her husband's side of which she had knowledge. The Tribunal found Mrs Salerno to be a credible witness. There were no witnesses, however, for much of the allegations and the Tribunal is left with the competing stories of the parties. c) Absent witnesses. It is not considered that the absence of Mr Franks from the witness box should ground any inference as submitted by the respondent. The evidence which he could have given is of minimal relevance, at best. Findings 29 Taking into account all of the above, the Tribunal finds, in relation to each of the complaints, as follows a) That Ms Franks was propositioned by Mr Salerno:- i) The Tribunal finds, in relation to the alleged proposition that "I would marry you if you were not already married", that Mr Salerno did not say the words attributed to him. Even if the Tribunal found otherwise in this regard, the words as said in the circumstances alleged could not have been an unwelcome sexual advance, an unwelcome sexual request, or "other conduct of a sexual nature" and thus could not have constituted a breach of s 22B. ii) The Tribunal finds, in relation to the alleged proposition that Mr Salerno asked Ms Franks to go swimming with him, that the invitation was issued. However, it is found that this was not an unwelcome sexual advance, an unwelcome sexual request or "other conduct of a sexual nature", and thus cannot constitute a breach of s 22B. In fact, Ms Franks herself retreated from denoting the invitation as "sexual harassment" (T41, day 1). b) Mr Salerno enquired into the quality of her marital relationship; i) The Tribunal finds that Mr Salerno made the enquiry. However, the enquiry was not, in all the circumstances of the case, an "unwelcome sexual advance, an unwelcome sexual request, or "other conduct of a sexual nature", and thus cannot constitute a breach of s 22B. c) Mr Salerno questioned her about her bra size; i) The Tribunal finds that this allegation is made out, and that it amounts to "other conduct of a sexual nature" and is a breach of s 22B. d) Mr Salerno made intimate physical contact with her in the context of commenting upon her perfume; i) The Tribunal finds that Mr Salerno said the words attributed to him by Ms Franks. However, it was not an "unwelcome sexual advance, an unwelcome sexual request, or "other conduct of a sexual nature", and thus cannot constitute a breach of s 22B. e) Mr Salerno made comments regarding the physical development of a 16yo work colleague of Ms Franks. i) The Tribunal finds that this allegation is made out, and that it amounts to "other conduct of a sexual nature" and is a breach of s 22B. 30 In relation to the findings (c)(i) and (e)(i) above, the Tribunal finds that the conduct of Mr Salerno in each case was such that a reasonable person, having regard to all the circumstances, would have anticipated that the applicant would have been offended, humiliated or intimidated. 31 The Tribunal finds that no case is made out to ground the allegations of sex discrimination. The staff of the café, apart from Mr Salerno, were all female. The applicant brought no evidence to the effect that a male employee would have been treated differently and more favourably by reason of his sex. While, of course, it is unlikely that a male would have been asked his bra size, the allegation was treated by counsel as one of sexual harassment, not sex discrimination, and no findings are able to be made in relation to the discrimination claim. 32 As to the position of the first respondent:- although no submissions were made in relation to the position of the first (corporate) respondent, it is clear that the behaviour of the second (personal) respondent, where that behaviour is found to be sexual harassment, was conduct for which the first respondent was vicariously liable. In Shellharbour Golf Club v. Wheel (1999) NSWSC 224, Studdert J held that (at par 33):- "once it was established that the misconduct occurred in the workplace environment and the offender was ostensibly at the time acting in the discharge of responsibilities as agent for his principal, what he did was deemed to be done by his principal, unless the conduct was unauthorised by the principal either expressly or by implication." See also s 53 of the Anti-Discrimination Act. 33 As Mr Salerno was the principal of Marco's Italian Gourmet Café Pty Ltd, it would be difficult for him to submit that his conduct was unauthorised or that he was not acting in the discharge of his responsibilities to the first respondent. Accordingly, the Tribunal finds that the first respondent is vicariously liable for the conduct of the second respondent. Remedies 34 The applicant worked for the respondents for a very short period of time. The conduct found to be in breach of s 22B consists of two separate statements to the applicant. While the Tribunal acknowledges that the applicant was distressed by the comments, the conduct falls at the minimum end of the spectrum. 35 In Caton v Richmond Club Limited [2003] NSWADT 202, the Tribunal found that the respondent was vicariously liable for the acts of an employee who physically harassed a female employee, over a period of a few months. There was evidence in that case of psychological effects of the harassment. In that case, the applicant was granted $15,000 damages. It can be seen that, given the $40,000 damages limit of the Tribunal, the range of damages for minor or minimal breaches is quite low. 36 The applicant in this case points to a number of factors going to damages. They include the fact that her allegations of discrimination were important to the decision to terminate the applicant's employment; that she had stress symptoms after her dismissal which lead to the prescription of anti-depressants; and that she had difficulties, in the very small town in which she lived, in finding alternative employment. 37 The respondent points to the medical records of the applicant which show that panic symptoms arose only mid-way through 2002, and that there were intervening factors such as abuse of alcohol and marijuana, and a head injury arising out of an (unrelated) assault. 38 Notwithstanding the lapse of time from the conduct complained of and the onset of the major symptoms of which the applicant complains, it does appear (on the basis of Dr Robinson's report, 10 January 2003) to be some causal link between the conduct of the respondent and the current stress symptoms of the applicant. It is, however, not a strong link. 39 More to the point is the difficulty which the applicant had had obtaining work. She is currently (or was recently) working, and it appeared from some cross-examination that she was not totally frank with the Tribunal as to the work she was able to obtain. However, the circumstances of her dismissal and the limited job opportunities in Gloucester are factors which the Tribunal may, in its discretion, take into account in assessing damages. 40 The Tribunal awards the sum of $2,500 to the applicant against the respondents for the breaches made out by her of the Anti-Discrimination Act, and, in accordance with the practice of the Tribunal, makes no order as to costs. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.