CITATION: Lallard - v - Tweed Art Framing Co and Stephens [1999] NSWADT 77 DIVISION: Equal Opportunity APPLICANT: Joanne Lallard RESPONDENT: Tweed Art Framing Co (First Respondent) Robert Stephens (Second Respondent) FILE NUMBER: 981024 HEARING DATES: 07/19/1999 SUBMISSIONS CLOSED: 07/20/1999 DATE OF DECISION: 3 September 1999 N Hennessy - Deputy President BEFORE: M Alt - Member L Lau - Member PRIMARY LEGISLATION: Anti-Discrimination Act 1977 APPLICATION: Sexual Harassment - Employment - MATTER FOR DECISION: Principal matter Applicant: D Hillard, solicitor, Clayton Utz REPRESENTATION: Respondent: P Griffin of counsel ORDERS: 1. The complaint is substantiated and the first and second respondents, jointly and severally, are ordered to pay the complainant damages in the sum of $26,750.00. 2. The second respondent implements an anti-harassment policy within 3 months of this decision and that such policy be approved by the President of the Anti-Discrimination Board prior to implementation. Background 1 Ms Joanne Lallard, the complainant, lodged a complaint with the Anti-Discrimination Board (the Board) on 17 July 1998 alleging discrimination on the ground of sexual harassment. A conciliation conference failed to resolve the matter and the President of the Board referred it to the Tribunal for decision under s 94(1) of the Anti-Discrimination Act 1977. 2 In August 1993 Ms Lallard was employed by Tweed Art and Framing Co. (the first respondent) to serve customers and frame art works. Although Ms Lallard's complaint to the Board alleges instances of sexual harassment against the owner of the business, Mr Robert Stephens (the second respondent) which go back to 1994, her complaint to the Tribunal only relates to events which occurred after 4 July 1997. This is because prior to that date businesses employing fewer than six people were exempt from the sex discrimination provisions of the Act. On 4 July 1997 amendments to the Act commenced which specifically made sexual harassment unlawful in certain circumstances. These amendments did not exclude small businesses. Consequently this application is confined to conduct which took place on or after 4 July 1997 and before Ms Lallard resigned on 24 June 1998. Evidence 3 There are a number of facts with which both parties agree. These were set out in the Agreed Statement of Facts. They are as follows: 1. The Complainant was employed by the Respondent from August 1993 until Christmas 1996, when the Complainant resigned her employment. The Complainant returned to work with the Respondent in January 1997, initially on a casual basis, and then later as a full time permanent employee. 2. The Complainant resigned her employment with the Respondent on 24 June 1998. 3. At all material times the Respondent was the Complainant's employer, and was responsible for her working conditions. 4. On 24 June 1998 the Complainant discovered in the Respondent's briefcase in the Respondent's office, an envelope which contained the following material: (i) Photographs of the Complainant and her partner engaged in sexual intercourse; (ii) Personal letters from the Complainant's partner to the Complainant; (iii) A nude photograph of the Complainant's genital area, which had been enlarged to A4 size and laminated; and (iv) Photographs of the Complainant, nude, clothed and in swimwear, some of which had also been enlarged to A4 size and laminated. 5. The items described in paragraph 4 above, including the original photographs from which the enlargements had been made, were the Complainant's property. 6. The Respondent pleaded guilty in Tweed Heads Local Court to the theft and possession of the Complainant's property described in paragraph 4 above. 4 Mr Stephens told the Tribunal how guilty and remorseful he felt in relation to the incidents concerning the photographs. He also apologised to the complainant for his behaviour in relation to the photos. 5 The complainant agreed during cross examination that she freely participated in taking photographs of herself and her partner engaged in acts of a sexual nature. She indicated that she considered these photographs to be of a very private nature only to be viewed by her partner and herself. 6 The complainant agreed that she had freely written cards to Mr Stephens and that they exchanged presents, for example when she went away on holidays or for birthdays and Christmas. Ms Lallard said that these gifts were not very valuable and there was "nothing unusual" about them. 7 The facts in dispute were the content and significance of various conversations and conduct which took place between 4 July 1997 and 24 June 1998 when the applicant resigned. Particulars of each party's version of these conversations and conduct are set out below. 8 Ms Lallard alleged that in approximately June 1998, Mr Stephens said to her words to the effect of: "I haven't got a nice photo of you." Ms Lallard asked Mr Stephens why he wanted a photo of her and he replied: "For future keeps." Ms Lallard said she was embarrassed and offended by this conversation. Mr Stephens stated that the complainant's version is a "gross distortion" of what was being said. He said he made the comment "off the top of my head." 9 Ms Lallard alleged that in approximately May 1998 Mr Stephens said to her words to the effect of: "You know how some couples take photographs of themselves making love?" Ms Lallard replied "Yeh, but I don't want to hear about it." Mr Stephens then said words to the effect of "Do you and Stuart [the complainant's partner] take photos?" Ms Lallard replied "No, of course not." Mr Stephens then said words to the effect of: "Just wondering. I thought you might. Some people do." Mr Stephens denies ever having said these or similar words. 10 Ms Lallard alleged that in approximately May 1998, Mr Stephens asked her the following question: "Does Stuart ever tell you how beautiful you are?" Ms Lallard replied, "Yes, all the time." Mr Stephens then said, "Good, because you are and I want to make sure that he is treating you right." Mr Stephens says that this was a "gross distortion" of the conversation. 11 The complainant gave evidence that Mr Stephens said on a number of occasions words to the effect: "I can't wait to see you pregnant. You'll be beautiful. You'll be glowing." Mr Stephens denied having said this. 12 Ms Lallard alleged that she often observed Mr Stephens leering at nude photographs and paintings which were to be framed. She said that this type of behaviour made her feel uncomfortable, and cautious about the clothing she wore to work. She said that she ensured that she never wore short dresses or anything revealing in front of the respondent. Mr Stephens rejected the leering allegation as "absolute nonsense." 13 The complainant alleged that Mr Stephens attempted to hug and kiss her on her birthday in November 1997. She said she squirmed and felt uncomfortable. She made a gesture of putting her arms across her body and under her chin to demonstrate how she responded when he attempted to hug her. Ms Lallard alleged that Mr Stephens also attempted to hug and kiss her on her return from Christmas holidays in January 1998. She said that that she tried to avoid hugging or kissing him but knew that it was "just his way" and I would "turn off." 14 The statement of Kaaren Becker dated 5 January 1999 stated that: I remember around Christmas 1997 that I saw Mr Stephens follow Joanne into the car park and try to hug her and give her a kiss. I observed Joanne back away from Mr Stephens and get into her car to avoid his hug. 15 Mr Stephens gave evidence that greeting or farewelling with a hug and kiss was rare and "nothing more than a hello and a goodbye, mostly instigated by the Complainant." He said Ms Lallard never crossed her arms over her chest and he had no reason to think she was uncomfortable. He does not remember giving Ms Lallard a kiss in the car park in 1997. 16 Ms Lallard gave evidence of her reaction after she found the photos and cards in Mr Stephens brief case. She said that immediately afterwards she found it "difficult to cope" and became withdrawn and depressed. She was too afraid to go outside until sometime in August when she began to go out infrequently on her own. In September she declined an invitation to a 30th birthday party because she did not want to socialise with other people. When inside, she locked all the doors and was scared to make a noise. She said she became paranoid that someone was watching her and searched for a tiny camera in the house. 17 Mr Stephens rang her at home on several occasions and visited once to pass on her pay cheque. She was afraid that Mr Stephens would come to her house but agreed that he had never suggested that he would return to her home after the initial visit. The complainant says she bought an answering machine so she did not have to speak to Mr Stephens if he rang. She had trouble sleeping and had nightmares involving Mr Stephens but agreed that Mr Stephens had never threatened her with physical harm. 18 The complainant says she began to smoke more than she had previously, and lost weight. Her relationship with her partner deteriorated because she said she couldn't stand him touching her. 19 Prior to finding the photos Ms Lallard said she was strong and happy with herself and her relationship. She described herself as confident and easy going. She loved work and interacted well with customers. She also agreed that she had "quite a good working relationship" with Mr Stephens and that before she found the photos she had never officially complained to anyone about his conduct. She agreed that she thought of him as "a harmless old pervert." 20 Now she says she is a "nervous wreck" and is unable to work full time. She attended counselling which she found beneficial but stopped after only three sessions because she couldn't afford to continue. She said that free counselling was not available. 21 The complainant agreed that after finding the photos she looked at various incidents that had happened during her employment in a different light. She said it was like a puzzle; everything began to fit together. In particular she looked back on the conversations and incidents such as those requesting photographs and saw them in a more sinister light. The impact of her recollection of these events in hindsight was, she said, greater than they were at the time. 22 The statement of Kaaren Becker, who was present when the complainant discovered the photographs states that: "Joanne was shaking and her face was bright red. She looked like she was about to throw up, and she began to cry." She also wrote that "Joanne has spoken to me many times since she left work. We sometimes talk for half and hour or so on the phone. Joanne has been very depressed, and often cries when she is talking to me. I have known Joanne for 16 months or so. She now appears to me to be more nervous and depressed, and less trusting of other people than she was before we discovered her personal items at work and she resigned her employment." 23 Supporting statements from a neighbour, Dale McLeod and Ms Lallard's partner, Stuart Valladares, were also tendered. These statements corroborated Ms Lallard's evidence in relation to the impact that discovering the photographs had on her. 24 Nerida Saunders, a registered psychologist who saw the complainant on three occasions, assessed her on 24 February 1999 and prepared a report. Ms Saunders described the symptoms she complained of which were consistent with Ms Lallard's evidence. After briefly reporting on two psychological tests administered to the complainant, Ms Saunders concluded that Ms Lallard is "in a seriously depressed state directly as a result of her discovery of the photos and subsequent recall of the alleged previously inappropriate behaviour of Mr Stephens. The length of time that Ms Lallard has been in this state relates to the discovery and appears to have worsened over time." Ms Saunders also wrote that "Ms Lallard's prognosis is good (and she will) respond to treatment." She recommended intensive initial treatment with gradual reduction and monitoring. 25 In relation to damages, the complainant's evidence was that she intended to continue working until just after Christmas 1998 when she was going to resign and travel around Australia with her partner. She said that she discussed this with Mr Stephens and he agreed. 26 Kaaren Becker's statement included the comment that "Both Joanne and Mr Stephens told me on a number of occasions during 1998 that Joanne had agreed to work at the shop until the end of 1998, when she would leave to go on a long holiday around Australia." 27 Mr Stephens said that "It was always my intention of terminating her at the end of her job start program which was due to finish mid August 1998." He said that the reasons for this were a breakdown in the working relationship and the complainant's attitude to work and customers. Mr Stephens agreed that although he intended to dismiss Ms Lallard in August he had never discussed it with her. When Mr Stephen's attention was brought to the statement he provided to the Anti-Discrimination Board that "I was happy for her to stay until Nov-Dec", he said that the comment was "an error." 28 The parties agreed that the complainant was paid $450 a week net at the time of her resignation. She says she would have worked for 27 weeks until the end of December, earning $12,150. The complainant gave evidence that from when she resigned until the end of December she worked for two days for Lovett's Picture Framing in late October for which she was paid $200. She also worked for six Saturdays from November to the end of December with Corporate Art Centre and earned a total of $420. In cross examination Ms Lallard agreed that during this period she gave some advice to Kaaren Becker in relation to setting up her own business but did not concede that she could have coped with working more than one day a week. Findings of fact 29 Having observed both parties give evidence, we concluded that both were speaking truthfully and openly most of the time. However both parties were less than completely frank on some occasions. Although there were few areas where the parties disagreed, we must decide in each instance, whose evidence to prefer. 30 Several of the allegations related to comments which took on a more sinister meaning after the complainant found the photographs. These are the alleged conversations where: · Mr Stephens said he did not have a nice photo of the complainant; · Mr Stephens asked the complainant if her partner told her how beautiful she is; · Mr Stephens asked the complainant if she and her partner took photographs of themselves making love; · Mr Stephens told the complainant that he could not wait to see her pregnant. 31 In relation to the first two conversations, Mr Stephens does not deny that they took place, but says they were a distortion of what was said. But he did not offer any other version or interpretation of what was said. Consequently we accept the complainant's version of these two conversations. 32 Mr Stephens denies that the third and fourth conversations summarised above, took place. We prefer the complainant's evidence in relation to these conversations. We accept that she frequently recalled these conversations after finding the photos and has a strong memory of them. The first two conversations, while distasteful, were not as personally intrusive and offensive as the second two conversations. Consequently the fact that Mr Stephens was prepared to describe the first two conversations as "distortions" but deny altogether the second two conversations weakens his credibility on this issue. 33 We find that Ms Lallard and Mr Stephens did greet and farewell each other by hugging and kissing on the cheek on occasions such as birthdays, Christmas and departures on leave. We accept that the respondent viewed these exchanges as quite natural and spontaneous. Ms Becker wrote that she saw Ms Lallard back away and get into her car to avoid being hugged. We are not satisfied, on the basis of this statement, that Ms Lallard consistently tried to avoid these exchanges. Ms Lallard's evidence in this regard is inconsistent with the fact that she sent cards containing personal sentiments as well as crosses and hearts representing hugs and kisses. While Ms Lallard may well have felt uncomfortable with any physical contact with Mr Stephens, she did not routinely convey this to him either verbally or through her body language. 34 In relation to allegations that Mr Stephens leered at nude photographs, the complainant may have seen the respondent looking at photos but the Tribunal does not accept that he was "leering" at them. 35 In general we accept Ms Lallard's evidence of the effect on her of finding the photographs and recalling earlier conversations with Mr Stephens. The psychological trauma she suffered as a result of these events is corroborated by statements from her partner, her neighbour, her work mate and her psychologist. 36 The respondent's counsel pointed out that Ms Saunders' report did not contain a detailed history which is normal professional practice for such reports. He put to the Tribunal that there may have been other events in the complainant's life which contributed to her state of mind. He said that the tests administered by Ms Saunders were not described in any detail, neither was the precise results or a comprehensive interpretation of those results given. There was no probing or testing of complainant's assertions. Mr Griffin's submitted that the report was totally deficient on its face. 37 We agree that the report was lacking in detail and professional rigour. However, it was not so deficient as to cast doubt on its conclusions especially since its contents were unchallenged by any other evidence. 38 We prefer the complainant's evidence, which is supported by the statement from Kaaren Becker, that she intended to continue working until just after Christmas 1998. The respondent's claim that he intended to retrench her in August is in direct contradiction with a statement he made to the Board about that time. Application of law and decision 39 Sections 22A and s 22B of the Anti-Discrimination Act 1977 define sexual harassment and the liability for such conduct in the following terms: 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. 22B Harassment of employees, commission agents, contract workers, partners etc (1) It is unlawful for an employer to sexually harass: (a) an employee, or (b) a person who is seeking employment with the employer. (2) It is unlawful for an employee to sexually harass a fellow employee or a person who is seeking employment with the same employer. The three elements of sexual harassment are that there must be conduct of a sexual nature which is unwelcome and which a reasonable person would have anticipated would have offended, humiliated or intimidated the person being harassed. The conduct of the respondent in stealing sexually explicit photographs from the complainant's house, having some of them enlarged and laminated and carrying them around in his brief case is, undoubtedly, conduct of a sexual nature. It is obvious that the stealing and continued possession of the photographs were not welcomed by the complainant. A reasonable person would have had no difficulty whatsoever anticipating that the complainant would be extremely humiliated, offended and intimidated by these actions. The respondent himself acknowledged and apologised for what he did. 40 The conversations which we have found the respondent had with the complainant also amount to conduct of a sexual nature in the context in which they were said. They relate to seeing the complainant pregnant, having a nice photo of her and questioning her about her relationship with her partner. While a comment that a person does not have a nice photo of another person may not constitute conduct of a sexual nature in a different context, in this case the respondent did have several sexually explicit photographs of the complainant. These circumstances make the conduct "of a sexual nature." 41 The comments were not welcome at the time they were made, even though the complainant said that she felt she could handle these comments. Her evidence was that they made her feel uncomfortable and that she tried to redirect the conversation by saying things like "I don't want to talk about that." On other occasions she said she "put up with the behaviour." In the light of her discovery of the photographs these conversations took on a new and more sinister meaning. In all the circumstances of the case a reasonable person would have anticipated that the complainant would have been offended, humiliated and intimidated by these conversations both at the time they occurred and in hindsight after finding the photographs. 42 In our view the hugs and kisses, on the rare occasions that they occurred, do not constitute sexual harassment. It is not uncommon for people in the workplace to exchange a welcoming or farewelling kiss or hug which really amounts to a touch on the shoulder and cheek to cheek contact. These exchanges only occurred two or three times a year when one of the parties was going on holidays or at Christmas or birthdays. We do not think that the conduct was of a sexual nature in this case. 43 The respondent's obvious remorse is a positive sign but is irrelevant to the question of whether sexual harassment has occurred. Remedies 44 Pursuant to s 113 of the Anti-Discrimination Act 1977 we find the complaint substantiated. Section 113 gives the Tribunal power to order the respondent to pay to the complainant damages not exceeding $40,000 by way of compensation for any loss or damage suffered by reason of the respondent's conduct. 45 The parties agreed that the complainant's weekly wage at the time of her resignation was $450. Accepting that she would have worked for a further 27 weeks, resigning at the end of the year, she has lost wages of $12,150. During that time she earned a total of $620 which must be deducted from $12,150 leaving $11,530. Added to this is the cost of three counselling sessions, namely $360.00. Future counselling sessions, which the Tribunal agrees the complainant needs, amount to $2,760. The cost of the answering machine was $100.00. Total special damages are $14,750. 46 The complainant also sought damages for hurt and humiliation arguing that these incidents had a "profound effect" on her and are at the extreme end of scale. The evidence shows that the respondent's conduct did have a serious and prolonged psychological effect on the complainant. However her prognosis is good and will improve with further counselling. Having reviewed similar cases in both the State and Federal jurisdictions, we order the respondents to pay to the complainant $12,000 by way of general damages. Consequently, the total amount awarded and payable by the first and second respondent's jointly and severally, is $26,750. 47 The Tribunal also has power under s 113(1)(b)(iii) to order the respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant. The complainant sought an order requiring the respondent to develop an anti-discrimination policy and attend training. The respondent did not make any submissions objecting to such an order. Consequently we order that: The second respondent implements an anti-harassment policy within three months of this decision and that such policy be approved by the President of the Anti-Discrimination Board prior to implementation. That the second respondent undergoes a training course on anti-discrimination law (including sexual harassment) with the Anti-Discrimination Board of NSW, or another person or organisation recommended by the President of the Board, within three months of this decision. 48 The complainant applied for the cost of disbursements on the basis that the legal work was done on a pro bono basis. While the normal rule for these kinds of cases is that each party pays their own costs, the Tribunal can make an order for costs if it is of the opinion in a particular case that there are circumstances that justify it doing so (s 114). The fact that the respondent admitted the major allegation but disputed the conversations and other conduct does not amount to circumstances which justify an order for costs. Neither does the fact that the respondent was clearly not willing to settle the matter on the complainant's terms. We make no order as to costs. 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