Brandon -v- Ramsay Meats Pty Limited & anor [2000] NSWADT 93

CITATION: Brandon -v- Ramsay Meats Pty Limited & anor [2000] NSWADT 93 DIVISION: Equal Opportunity Division APPLICANT Laura Brandon

PARTIES: FIRST RESPONDENT Ramsay Meats Pty Limited (in liquidation)

SECOND RESPONDENT Stan Parker FILE NUMBER: 21 of 1998 HEARING DATES: 23/06/2000 SUBMISSIONS CLOSED: 06/23/2000 DATE OF DECISION: 06/23/2000

BEFORE: Ireland G - Judicial Member; Taksa L - Member; Harben S - Member APPLICATION: Sex Discrimination - In work - Sexual Harassment - In workplace MATTER FOR DECISION: Principal matter LEGISLATION CITED : Anti-Discrimination Act 1977 CASES CITED: M v R Pty Limited at 1988 (EOC) 92-229 Shell Harbour Golf Club v Wheeler 1999 NSW SC 224 APPLICANT REPRESENTATION: D Hillard, solicitor RESPONDENT No appearance ORDERS: Second Respondent to pay applicant the sum of $40,000 by way of damages for the acts of discrimination and victimisation that she has suffered.; No award as to costs.

1 The Tribunal has considered the material that has been put before it in this matter and has decided to find in favour of the claimant, I will outline ex tempore, the Tribunal's reasons. 2 Firstly it is necessary to record that there are two respondents in this matter. The first respondent was Ramsey Meats Pty Limited, a company that is in liquidation and the complainant's representative indicated that the complainant was not seeking to pursue the first respondent in this matter. The second respondent is Mr Stan Parker who is described as a director of the first respondent and it is against Mr Parker that the allegations are made concerning sexual harassment. 3 The matter has been listed before the Tribunal on previous occasions for directions and on those occasions, Mr Parker personally appeared. The date for the hearing of this inquiry was advised to Mr Parker by the Registrar by registered post in accordance with section 138 of the Administrative Decisions Tribunal Act. Mr Parker has not appeared at this hearing and the Tribunal has decided, having regard to the background of the matter, that reasonable opportunity has been given to Mr Parker to be present and to make representations to the Tribunal. 4 The matter has proceeded in the absence of Mr Parker. The material placed before the Tribunal by the complainant comprised the President's report and the material in that report and a statement by the complainant dated 22 October 1999. At the inquiry today, the complainant on oath, confirmed the contents of that statement and the complainant answered questions put to her by her representative and by the Tribunal. The complainant also placed before the Tribunal, a letter from the complainant's doctor, Dr Gary Chong dated 19 June 2000 and a letter from Mr Robert Baer dated 19 July 1999. Mr Baer is a person who the complainant consulted for assistance in being placed in employment after her employment was terminated by the respondents on 26 July 1996. 5 The Tribunal considers that there is sufficient evidence placed before it to enable it to come to the conclusions which it has. The Tribunal has had regard to a decision by the Tribunal in another matter involving the same respondents, a matter of Egan against the two respondents. 6 It was a decision of the Tribunal dated 1 December 1997. In that case the Tribunal did not find in favour of the complainant in relation to her claim of discrimination based on sexual harassment on one occasion. The Tribunal did find in favour of the complainant on her claim for victimisation following her allegation that incident of sexual harassment. 7 The Tribunal also had regard to some of the findings in the decision of Egan to support the Tribunal's determination that Mr Parker, the second respondent at all material times in relation to Ms Brandon's complaint was a person who was a director of the first respondent, the employer of Ms Brandon and that Mr Parker was in the full time employment of the first respondent and he discharged a senior management role and he directly supervised Ms Brandon in her job. 8 It is the view of the Tribunal that Mr Parker comes within the category of person described in the judgment of his Honour, Graham J in the matter of M v R Pty Limited at 1988 (EOC) 92-229, where his Honour categorised the circumstances in which a person holding a senior position in a corporation that was an employer, would through his or her actions, constitute a breach of section 25(2) of the Anti Discrimination Act 1977 (hereafter called the "Act"). That category was described by his Honour as follows: Where the relevant discriminatory act or conduct is that of a person or persons whose duty it is to, or who customarily or usually has the function of, affording terms and conditions of employment to the employee alleging discrimination. 9 Mr Parker, in the view of the Tribunal meets this criterion in relation to Ms Brandon. It is important in this matter, that the Tribunal make such a determination for the reasons that we will mention later. The Tribunal accepts the evidence of Ms Brandon in her statement and in the oral evidence that she presented to it today as truthful evidence and it accepts that Mr Parker subjected her to a series of acts of harassment as described by her in her written statement. In the view of the Tribunal, those acts of harassment were of sufficient, sexual connotation that they constitute discrimination on the grounds of her sex in terms of section 24(1) of the Act. 10 Those acts of discrimination were unwelcome by Ms Brandon and the Tribunal is satisfied that Ms Brandon made it clear to Mr Parker that his attempts to harass her were unwelcome. Notwithstanding Ms Brandon's resistance of these approaches, Mr Parker persisted over the period described by Ms Brandon in her statement and as a consequence, after Ms Brandon spoke with a fellow employee, Mr Parker's daughter approached Ms Brandon and threatened her with physical violence if she persisted with such rumours. Following that incidence, the assistant accountant of the first respondent told Ms Brandon that she would arrange with Mr Parker to discuss the matter but that meeting was never arranged. 11 Those events took place in April 1996. In June 1996 the nature of the work that Ms Brandon was required to perform changed in two material respects. Firstly, Ms Brandon was asked to do stocktaking in a dirty section of the warehouse which she had never been asked to do before and where she had been earlier told by Mr Parker that he did not want her to do the dirty work. Secondly, Mr Parker's secretary took over some of the work areas previously performed by Ms Brandon. Finally on 25 June 1996 Mr Parker called Ms Brandon into the office of the assistant manager where Mr Parker told Ms Brandon that she was to get off the property and that was the last day of her employment. 12 The Tribunal has come to the conclusion that as a result of the conversation that took place on that occasion between Mr Parker and Ms Brandon that Mr Parker terminated Ms Brandon's employment as a consequence of her allegations of sexual harassment of her by Mr Parker. Having found that Mr Parker discriminated against Ms Brandon in terms of section 24(1) of the Act, the Tribunal has considered whether the discrimination and the circumstances of the discrimination constituted an unlawful act under section 25(2)(a) of the Act. Such conduct would be rendered unlawful if it so interfered with the terms and conditions of employment of Ms Brandon that those terms and conditions were materially changed from the terms and conditions on which she was employed. 13 It is the view of the Tribunal that the acts of harassment to which she was subjected did materially change the terms and conditions of her employment and that the acts of discrimination, if in terms of that section, were acts of the employer, were unlawful. It is therefore necessary for the Tribunal to determine whether the acts of harassment perpetrated by Mr Parker were the acts of the employer. The Tribunal has determined that the employer is responsible for such acts of harassment for the reasons that we have referred to earlier as Mr Parker was a person who normally had the function of determining those terms and conditions. 14 In addition, the Tribunal determines that in terms of section 53 of the Act the unlawful conduct of Mr Parker being an employee of Ms Brandon's employer is deemed to be the unlawful act of the employer. In coming to this conclusion the Tribunal has had regard to the decision in M v R Pty Limited referred to earlier and also to the decision of Studdert J in Shell Harbour Golf Club v Wheeler 1999 NSW SC 224 and especially at page 6 of that decision where in paragraph 33 his Honour says: However as I construe section 53(1) 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 of 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. 15 Of course in this inquiry the perpetrator of the harassment was not the agent of the employer but rather was an employee of the employer and section 53 applies to such a relationship. There was no evidence before the Tribunal to show that the unlawful act was not authorised by the employer. Accordingly section 53 operates to render the employer responsible for the unlawful acts of Mr Parker. It is then necessary for the Tribunal to have regard to section 52 of the Act which in relation to conduct which is unlawful, renders liable a person who causes, instructs, induces, aids or permits another person to do the unlawful act. In this instance, Mr Parker, is the person who caused the unlawful act arising out of the acts of harassment perpetrated by him and accordingly in the view of the Tribunal, Mr Parker, is guilty of the unlawful acts in terms of section 52 of the Act. 16 It is then necessary for the Tribunal to consider the claim of victimisation made by Ms Brandon. Ms Brandon has given evidence that following her allegations of harassment that we have earlier outlined, her work conditions were materially and adversely changed and ultimately her position as employee was terminated. The Tribunal concludes that those detriments were suffered as a result of and therefore on the ground of her making the allegations of discrimination. It follows that those acts constitute acts of victimisation against her and that section 50 applies so that Mr Parker is also liable to Ms Brandon as a consequence of such victimisation. 17 It is further necessary for the Tribunal to determine what compensation should be paid to Ms Brandon as a consequence of its findings of discrimination and victimisation by Mr Parker. The Tribunal has had placed before it details of the loss of wages that Ms Brandon has suffered since her employment was terminated on 25 July 1996. She has been unable to work since that time. She has clearly made reasonable attempts to find other employment and has sought the services of the organisation run by Mr Baer. She has also sought assistance from her medical adviser, Dr Chong. The evidence shows that as a consequence of the traumas suffered by Ms Brandon flowing from the unlawful acts to which she has been subjected, she has not been fit to be employed since her job was terminated by Mr Parker. 18 Details of the loss of wages has been put before the Tribunal. The amount of such wage loss is at the rate of $400 per week gross for a period of 96 weeks up to March 1998. The quantification of that amount is $38,400 and in view of the limit of the Tribunal's jurisdiction of $40,000 the claimant has not pressed for any further compensation after March 1998. 19 In addition to the amount of loss of wages, the claimant also seeks from the Tribunal an award by way of general damages as compensation to her for the considerable stress, hurt and the humiliation that she has suffered as a consequence of the unlawful acts to which she has been subjected. In relation to general damages it is not the practice of the Tribunal to award large amounts by way of general damages except in the most serious and demanding circumstances. The Tribunal has determined that an appropriate award in this case is the sum of $15,000 but that amount is not to be understood by Ms Brandon as indicating that the Tribunal did not regard her suffering as not serious. 20 As the Tribunal's jurisdiction is limited to a total of $40,000 the Tribunal consequently has determined that it would award Ms Brandon the total amount of $40,000 which will be made up of firstly an award of general damages of $15,000, and secondly an award for economic loss which should include the total amount of $38,400 but will be limited to $25,000 being the maximum extent to which the Tribunal can make an award. 21 The Tribunal accordingly directs that Mr Stan Parker pay to Laura Brandon a total amount of $40,000 by way of damages for the acts of discrimination and victimisation that she has suffered. There will be no award as to costs. That will conclude the matter.