Equal Opportunity Tribunal of New South Wales CITATION: Mitchell -V- South Sydney Junior Rugby League Club Ltd [1998] NSWEOT COMPLAINANT: Toni Marie Mitchell RESPONDENT: South Sydney Junior Rugby League Club Ltd NUMBER: 18 of 1997 Mr Michael Biddulph ( Judicial Member ) TRIBUNAL: Mr N Rogan Ms K Edwards GROUNDS OF COMPLAINT: Discrimination on the grounds of sex and victimisation in the area of employment DATES OF HEARING: DATE OF JUDGMENT: 02/03/1998 Complainant: Mr T Stern Stern & Tanner (Solicitor) Ms K Nomchong (Counsel) LEGAL REPRESENTATIVES: Respondent: Mr D Vaughn Heaney Richardson & Nemes (Solicitor) Mr S Rothman S C (Counsel) JUDGMENT IN FAVOUR OF: Complainant SUMMARY OF COMPLAINT On 31 August 1995 the President of the Anti-Discrimination Board of New South Wales received the complaint under the N.S.W. Anti-Discrimination Act 1977 from Ms Toni Marie Mitchell alleging discrimination on the ground of sex and victimisation. The Board attempted to resolve this complaint through conciliation but was unsuccessful. It was referred to the Equal Opportunity Tribunal under Section 94(1) of the Anti-Discrimination Act on 13 February 1997 attaching a report of the President's investigation of the complaint. THE CLAIM Basically, the Complainant's claims and allegations were as follows: 1. That she was the victim of two separate campaigns of verbal and physical sexual harassment by two other employees of the Respondent, Mr Con Koustabardis and Mr Colin Jones. Both were employees of the Respondent and members of management. 2. The Complainant made formal complaints in respect of both incidents and as a result of making those complaints she was subjected to victimisation from other employees of the Respondent. 3. The Respondent took no or no effective action to prevent sexual harassment or victimisation in the workplace and therefore took no or no effective action to prevent sexual harassment and victimisation of the Complainant. 4. The workplace of the Respondent was a hostile work environment for the Complainant. 5. The Respondent was under a special duty to ensure that the Complainant was protected from further sexual harassment once the first allegation of sexual harassment by Con Koustabardis had been established. The Respondent was indifferent to that duty or failed to carry out that duty in any effective way. 6. The Complainant was offered employment in other areas of the club but no guarantee could be given by the club that Mr Jones would not be restricted from those areas. 7. The Respondent by its conduct and lack of effective action, authorised the sexual harassment and victimisation of the Complainant by others in its employ. 8. The Complainant was unable to continue to work in such a hostile work environment and accordingly was constructively dismissed on 14 May 1995. 9. The Complainant suffered hurt, humiliation, anxiety and depression as a result of the sexual harassment and victimisation for which she sought counselling and medical treatment and suffered in addition other mental and physical problems. 10. Since leaving the employ of the Respondent, the Complainant has suffered ongoing economic loss of approximately One hundred and eighty dollars ($180.00) per week. 11. The acts complained of are a contravention of Sections 25(2) and Section 50(1)(c) or (d) of the Act. 12. As to the responsibility of the Respondent, the Complainant relies on Sections 53(1) and (3) of the Act. THE MATTERS PUT IN ISSUE BY THE RESPONDENT The Respondent admitted the following facts put in evidence by the Complainant, namely: 1. The Complainant commenced employment with South Sydney Junior Rugby League Club Limited ("the Respondent") on 29 June 1994 as a permanent part- time waitress. 2. The Complainant resigned on 14 May 1995. 3. The Respondent is a corporation having its registered office and premises at 558a Anzac Parade, Kingsford, New South Wales and carrying on the business of a licensed Club. 4. The Respondent is not a private household nor a private educational institution within the meaning of Section 25(3)(a) and (c) of the Anti-Discrimination Act 1997 ("the Act"). 5. At the time of the Complainant's employment, the Respondent employed approximately 460 persons and the provisions of Section 25(b) of the Act do not apply. 6. The Complainant made a formal complaint about Mr Koustabardis to the Respondent in late December 1994. 7. Mr Koustabardis resigned in late December 1994. 8. The Complainant made a formal complaint about Mr Jones to the Respondent in or about May 1995. 9. In or about early May 1995 the Complainant made a formal complaint with the Respondent in relation to the sexual harassment by Mr Jones and the victimisation referred to above. (These statements were admitted by the Respondent who indicated nevertheless that the date should be mid-May 1995 and not early May 1995). The following matters alleged by the Complainant were not admitted by the Respondent: 1. During the period from the commencement of the Complainant's employment with the Respondent to approximately late December 1994, the Complainant was sexually harassed by Mr Con Koustabardis, her Manager, during the course of her employment. PARTICULARS (a) During her interview for the job, Mr Koustabardis kissed the Complainant on both cheeks. (b) On numerous occasions, Mr Koustabardis would rub his hands over the Complainant's shoulders and down the length of her arm in a lingering way. (c) On a number of occasions Mr Koustabardis would come up behind the Complainant and place his hands on her buttocks even though the Complainant told him not to do it. (d) Mr Koustabardis called the Complainant by the nickname of "fried eggs" and told her it was because of the size of her breasts. Mr Koustabardis used this nickname to ridicule the Complainant in front of other staff. (e) Mr Koustabardis told the Complainant that she should seek counselling as she was stand-offish towards men. (f) Mr Koustabardis told the Complainant to lie on her back so that he could "give it to her and see how sore her sunburn really was". (g) Mr Koustabardis asked the Complainant if she gave "good blow jobs". (h) Mr Koustabardis said to the Complainant in front of her work mates and looking straight at the Complainant, "I'm so horny I could fuck anyone". (i) Mr Koustabardis would look at the Complainant and slowly push his tongue out of his mouth and over his lips in a crude and suggestive manner. (j) On one occasion, Mr Koustabardis came up behind the Complainant and began to massage her shoulders whereupon she recoiled. Later Mr Koustabardis said, "Are you alright for tonight? Don't worry, I've had a shower." 2. On all of the occasions that Mr Koustabardis sexually harassed the Complainant, the conduct was not invited nor solicited by the Complainant. 3. On all of the occasions that Mr Koustabardis sexually harassed the Complainant, she communicated to Mr Koustabardis that his conduct was unwelcome. 4. On all of the occasions that Mr Koustabardis sexually harassed the Complainant, the conduct was regarded by the Complainant as undesirable and offensive. SEXUAL HARASSMENT BY MR COLIN JONES 5. During the period from approximately December 1994 to the date when the Complainant resigned, the Complainant was sexually harassed by Mr Colin Jones, a Senior Manager, during the course of her employment with the Respondent. PARTICULARS (a) Mr Jones grabbed the Complainant's arm, pulled her up an escalator and put his arms around her shoulders. Mr Jones told the Complainant that he loved her. (b) Mr Jones told other members of staff that he and the Complainant were "an item". (c) Mr Jones ridiculed the Complainant by commenting that her underarms were hairy in front of other staff members. (d) Mr Jones said to the Complainant, "I really care for you. I'm coming with you to meet your parents, do you think they will like me as a son-in-law?" (referring to the Complainant's parents in New Zealand - comments made by the Tribunal). (e) Mr Jones told the Complainant that he had not spoken to her and that he had given her dirty looks because she would not have a relationship with him. (f) Mr Jones said to the Complainant that she was "an ice lady and that he was the ice crusher". (g) Mr Jones introduced a person to the Complainant by saying, "This is Bronwyn and this is the bitch". (h) Mr Jones came up to the Complainant behind the counter and took her head in his hands, kissed her on the lips and pushed his tongue into her mouth. Mr Jones then said, "Did you enjoy that? I did." This incidence took place in front of another staff member. (i) On all of the occasions that Mr Jones sexually harassed the Complainant, the conduct was not invited nor solicited by the Complainant. 7. On all of the occasions that Mr Jones sexually harassed the Complainant, she communicated to Mr Jones that his conduct was unwelcome. 8. On all of the occasions that Mr Jones sexually harassed the Complainant, the conduct was regarded by the Complainant as undesirable and offensive. VICTIMISATION 9. After the resignation of Mr Koustabardis, during the course of her employment, the Complainant was victimised by other staff members, including Managers of the Respondent on the ground that she had made a complaint about the sexual harassment by Mr Con Koustabardis. PARTICULARS (a) Shortly after the Complainant made a formal complaint about the sexual harassment from Mr Koustabardis, six people, including a staff member came into the dining room where the Complainant was working and called her a "dobber" and a "bitch" and made noises like a cow when the Complainant walked past the table. Management of the Respondent were made aware of the behaviour. A Manager spoke to the group but then left the dining room and the behaviour continued. (b) On numerous occasions Managers, including Mr Colin Jones, said, "We'd better watch it or Toni will have us up for sexual harassment". 10. The sexual harassment suffered by the Complainant during the course of her employment with the Respondent created a working environment which was hostile. 11. Prior to her resignation, the Complainant was earning approximately $380.00 per week after tax. In addition, the Complainant received approximately $90.00 per week in tips. 12. The Complainant obtained a casual job after resigning from the Respondent where she earned $200.00 per week after tax. 13. The Complainant suffered a loss of earning in the amount of $270.00 per week after tax from the date of her resignation. The Respondent denied that the Complainant made a number of informal complaints to the Respondent during the period from approximately January 1995 to May 1995. The Respondent denied or did not admit that the Complainant resigned because she could no longer tolerate the sexual harassment by Mr Jones and the victimisation by other members of the staff. CONTRAVENTION OF SECTION 25(2) OF THE ACT By reason of facts set out in paragraphs 1, 2, 3 and 4 above, the Respondent alleged that it was not the conduct of the Respondent alleged by the Complainant that Mr Koustabardis discriminated against the Complainant on the grounds of her sex within the meaning of Section 24 of the Act. Also, by reason of the facts set out in paragraphs 6, 7 and 8 and the facts in which the Complainant stated that she made a number of informal complaints to the Respondent during the period from approximately January 1995 to May 1995, the Respondent alleges that it was not the conduct of the Respondent whereby Mr Jones discriminated against the Complainant on the grounds of her sex within the meaning of Section 24 of the Act. The Respondent denies that the sexual harassment suffered by the Complainant from both Mr Koustabardis and/or Mr Jones during the course of her employment with the Respondent amounted to a term or condition of employment and was a contravention of Section 25(2)(a) of the Act. The Respondent also denies that further or in the alternative the sexual harassment suffered by the Complainant from both Mr Koustabardis and/or Mr Jones during the course of her employment amounted to a detriment and was a contravention of Section 25(2)(c) of the Act. VICTIMISATION - CONTRAVENTION OF SECTION 51(c) AND/OR (d) By reason of the facts set out in paragraph 9 above under the heading "Victimisation", the Respondent denies that the Complainant was intimidated and victimised by Mr Jones and other staff members of the Respondent. The Respondent denies that the said victimisation was unlawful and a contravention of Section 51(c) and/or (d) of the Act. THERE WAS NO RESPONSE TO THE FOLLOWING FACTS IN THE POINTS OF DEFENCE OF THE RESPONDENT: LIABILITY OF THE RESPONDENT: Prior to the Complainant's formal complaint about Mr Koustabardis, the Respondent through its senior and middle level management, was aware that Mr Koustabardis sexually harassed female staff members, including the Complainant but failed to take adequate or sufficient action to stop the sexual harassment of the Complainant. PARTICULARS (a) The Complainant was advised that Mr Koustabardis resigned because the Complainant's complaint constituted the third warning that Mr Koustabardis had had in respect of his conduct in the Club. (b) Numerous other complaints had been made about the sexual harassment of female staff by Mr Koustabardis but no supervision of Mr Koustabardis was undertaken by the Respondent to prevent further sexual harassment. It was indicated by the Respondent that shortly after the resignation of Mr Koustabardis, the Respondent issued notification to all staff with their bundy cards that sexual harassment in the workplace would result in instant dismissal but as a matter of evidence, the notification was not produced before the Tribunal as to its date or content or when it was sent out to members of staff. The Respondent denied that prior to the Complainant's formal complaint about Mr Jones, the Respondent through its senior and middle level management was aware that Mr Jones sexually harassed the Complainant but failed to take adequate or sufficient action to stop the sexual harassment of the Complainant. PARTICULARS (a) The Complainant had made a number of informal complaints to management but no supervision or protection was afforded to the Complainant. (b) Some managers had told the Complainant that Mr Jones had told them of his conduct but no action was taken to prevent any such further conduct. (c) Despite the written notification received by staff and posted on notice boards as alleged by the Respondent in the premises of the Respondent that sexual harassment would result in instant dismissal, the Complainant was advised that Mr Jones would not be dismissed because the Complainant's complaint only constituted the second warning Mr Jones had had in respect of his conduct. (d) When Mr Jones was asked to apologise to the Complainant in relation to his sexual harassment of her, he said, "I'm always this way with you so why does it matter this time?". When the Complainant replied that this was inadequate, Mr Thorn of management told the Complainant that she couldn't argue. (e) The Respondent's only action was to offer the Complainant employment at another area of the premises but would not guarantee that Mr Jones would be prevented from approaching her. The Respondent denied the following facts alleged by the Complainant: (a) The Respondent through its senior and middle level management was aware that the Complainant was being victimised and failed to take any or any adequate action to prevent such action from occurring. (b) In the circumstances, the procedures adopted by the Respondent were inadequate and/or insufficient to prevent the sexual harassment of the Complainant. (c) Further or in the alternative, the policies of the Respondent to eliminate sexual harassment were not enforced. CONSTRUCTIVE DISMISSAL The Respondent made the following denials of the following facts alleged by the Complainant: (a) By reason of the facts set out above, the failure of the Respondent to take any or any adequate action to prevent the sexual harassment of the Complainant caused the Complainant to resign and constituted a constructive dismissal of the Complainant's employment. LOSS AND DAMAGE The Respondent denied that as a result of the sexual harassment by the persons previously referred to at the Club, the Complainant suffered loss and damage. PARTICULARS (a) Humiliation; (b) Intimidation; (c) Loss of weight; (d) Loss of appetite; (e) Loss of sleep; (f) Nervousness; (g) Aversion to men; (h) Strong sense of disillusionment; (i) Stress. THE CLAIM The points of claim filed on behalf of the Complainant set out in detail the Complainant's claims and allegations in this matter which have been particularised previously in this Judgment. Basically, the Complainant states: 1. She was the victim of two separate campaigns of verbal and physical sexual harassment by two employees of the Respondent, Mr Con Koustabardis and Mr Colin Jones. Both employees were members of management of the Respondent. 2. She made formal complaints in respect of both incident matters and it was as a result of making those complaints that the Complainant was subjected to victimisation from other employees of the Respondent. 3. The Respondent took no or no effective action to prevent sexual harassment or victimisation in the workplace and therefore took no or no effective action to prevent the sexual harassment and victimisation of the Complainant. 4. The workplace of the Respondent was a hostile work environment for the Complainant. 5. The Respondent was under a special duty to ensure that the Complainant was protected from further sexual harassment once the first allegation of sexual harassment by Con Koustabardis had been established. The Respondent was indifferent to that duty or failed to carry out that duty in any effective manner. 6. The Respondent by its conduct and lack of effective action tacitly authorised the sexual harassment and victimisation of the Complainant by other of its employees. 7. The Complainant was unable to continue to work in such a hostile work environment and was accordingly constructively dismissed on 14 May 1995. 8. The Complainant suffered hurt, humiliation, anxiety and depression as a result of the sexual harassment and victimisation for which she sought counseling and medical treatment. 9. Since leaving the employ of the Respondent, the Complainant has suffered on- going economic loss of approximately $180.00 per week. 10. The acts complained of are a contravention of Sections 25(2) and 50(1)(c) or (d) of the Act. 11. In terms of the responsibility of the Respondent, the Complainant relies on Sections 53(1)and (3) of the Act. THE ISSUES BEFORE THE TRIBUNAL The points of claim of the Complainant were filed on or about the 28 April 1997. The points of defence for the Respondent were filed on 22 August 1997. By reason of the pleadings, the Complainant has been put to formal proof of the following matters: 1. That the sexual harassment of the Complainant by Con Koustabardis occurred. 2. That the sexual harassment of the Complainant by Colin Jones occurred. 3. That the victimisation of the Complainant by members and employees of the Respondent occurred. 4. That the Complainant was constructively dismissed. 5. That the Respondent was liable for the acts of its employees in the sexual harassment and victimisation of the Complainant. 6. That the sexual harassment suffered by the Complainant during the course of her employment amounted to either a term of her employment or a detriment. 7. That the Respondent was responsible for a work environment which was hostile, offensive and intimidating to the Complainant. 8. That the Respondent was aware of the sexual harassment of the Complainant but failed to take any or any adequate steps to stop the sexual harassment of the Complainant. 9. That the Respondent was aware of the victimisation of the Complainant but failed to take any or any adequate steps to stop the sexual harassment of the Complainant. 10. That the procedures adopted by the Respondent were inadequate to prevent sexual harassment of the Complainant. 11. That the sexual harassment policies of the Respondent were not enforced. 12. That the Complainant suffered loss and damage including any economic loss. SUBMISSIONS ON THE EVIDENCE GENERAL MATTERS: (a) The Complainant was twenty-four (24) years old at the time of the sexual harassment and victimisation. She was born in New Zealand and it was necessary for her to leave school at an early age to help her mother who had the care of the Complainant's siblings and their upbringing. (b) The workplace of the Respondent was a large one employing approximately 460 employees. (c) Sixty percent (60%) of the workforce were women. All but one of the operational management team were men. (d) The Respondent had a full-time Chief Executive Officer, a full-time Human Resources Manager and a full-time Operations Manager. SPECIFIC ISSUES: (i) That the sexual harassment of the Complainant by Con Koustabardis occurred Evidence of the Complainant - See Exhibit "A" (paragraph 7 to 28) and oral evidence given by the Complainant on 22 September 1997 Evidence of Lynne Hailey - See Exhibit "D" and oral testimony given by her on 25 September 1997 That the sexual harassment complained of did occur is recognised in the actions and documentation of the Respondent itself: (a) Minutes of the Meeting chaired by Jeff Knight investigating the complaints on 8 March 1995, Exhibit "11"; (b) Letters drafted by the Respondent and signed by employees including the Complainant following the investigation by Jeff Knight into the allegations - Exhibits "B", Koustabardis, "L" & "M". (c) Oral testimony of Mr Knight in which he said that he told Mr Koustabardis that he was going to be dismissed but that the Chairman of the Board intervened and allowed Mr Koustabardis to resign with full outstanding entitlements. (d) Minutes of Meeting of the Board of 16 March 1995 accepting Mr Koustabardis' resignation. (e) Minutes of Meeting of Managers where Jeff Knight tells Managers of Mr Koustabardis' resignation and the new procedures for dealing with complaints - Exhibit N and oral testimony of Jeff Knight. No evidence was put on by the Respondent that the sexual harassment did not occur - in particular Mr Koustabardis was not called as a witness to refute the allegations. In spite of all this, the Respondent put the Complainant to formal proof that the sexual harassment in fact occurred whereas at the commencement of these proceedings, Counsel for the Respondent had indicated that the issues of sexual harassment by the two employees of the Club was not the main issue in the case and that the main issue was the question of the vicarious liability of the Respondent. (ii) That the sexual harassment of the Complainant by Colin Jones occurred Evidence of the Complainant - See Exhibit "A" and oral evidence given on 22 September 1997. Evidence of Michael Hamilton - See Exhibit Complainant and oral testimony on 22 September 1997 Evidence of Lynne Hailey - See Exhibit "D" and oral testimony on 25 September 1997. Statement of Bronwyn Parsons contained in Presidents Report - Exhibit "1". That the sexual harassment complained of did occur is recognised in the actions and documentation of the Respondent itself: (a) The Respondent issued a formal warning to Mr Jones - Exhibit "P" (b) Minutes of the Meeting of the Board of 15th June 1995 reporting the allegation against Mr Jones. No evidence was put on by the Respondent that the sexual harassment did not occur, in particular, Mr Jones was not called as a witness to refute the allegation even though he is still an employee of the Respondent. Mr Jim Thorn, the Gaming Manager, who conducted the Meeting late on Saturday night between Colin Jones, the Complainant, Lynne Hailey and Spiro Menecu was not called. In spite of this, the Respondent put the Complainant to formal proof that the sexual harassment in fact occurred. (iii) That the victimisation of the Complainant by members and employees of the Respondent occurred The Complainant stated that after she made the complaint against Mr Koustabardis she was subjected to numerous comments to the effect of, "Don't say anything in front of Toni or she will have you up on a sexual harassment charge." The Complainant stated that most of these comments were made by managers. An incident occurred where a group of people including one employee, Helen Charissis (a friend of Mr Koustabardis) called the Complainant names, threatened her with physical harm, sent a child over to the Complainant to intimidate the Complainant while she was working because the Complainant had made a comment against Mr Koustabardis. The Complainant stated that two managers, Mr Nathan Pattison and Mr Colin Jones were in the vicinity when the previous incidents occurred and did nothing. The Complainant says that she went to get the Human Resources Manager who was in the next room. Mr Heaney (the Human Resources Manager) gave evidence to the fact that he didn't bother to come in himself but sent another employee, Mr Mitchell to tell the employees to stop the behaviour previously referred to. Ms Charissis was later transferred to another part of the Respondent's Club. (iv) That the Complainant was constructively dismissed On or about 14 May 1995, the Complainant had attended a meeting with Mr Peter Heaney who offered to move her to another position elsewhere in the Club. This took place after it had been accepted by all members of management that the alleged apology proffered to the Complainant on the previous Saturday night at the Meeting with Jim Thorn had been accepted by the Complainant and was an appropriate and sufficient resolution to the problems. No guarantee was given to the Complainant that Mr Jones would be unable to go into the area where the Complainant was to be employed. The Complainant gave evidence that she felt that a transfer was not appropriate because there were no guarantees that the harassment would not occur again. The Complainant said that she was distressed and anxious and she felt she was unable to remain in her position. (See Exhibit "A" and testimony of Complainant on 22 September 1997) (v) That the Respondent was liable for the acts of its employees in the sexual harassment and victimisation of the Complainant: Section 53 of the Anti-Discrimination Act 1977 No. 48 reads as follows: "Section 53(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." Accordingly, the Complainant needed to show that there was no such authorisation not to sexually harass or victimise her. The Complainant submitted that there was no or no effective authorisation or direction by the Respondent to its employees not to engage in acts of sexual harassment and victimisation. This is evidenced by the conduct and documentation (or lack thereof) of the Respondent. As at the date when Mr Koustabardis sexually harassed the Complainant in or about December 1994, there was no sexual harassment policy - every witness both for the Complainant and the Respondent gave evidence to the effect that there was no policy, no grievance handling procedure, no training, information or assistance to employees in respect of sexual harassment in the work place. This is at 1994. The workplace was a large one - 460 employees, 60% of whom were young women. The evidence of the Complainant and Ms Hailey was that sexual harassment of female employees was a regular occurrence in the Club. Mr Jeff Knight, CEO of the Respondent had only a rudimentary understanding of the obligations of the Respondent under the prevailing Anti-Discrimination legislation. He admitted that it was a large workplace with a predominance of women in supervised positions, with the majority of supervisors being men. It was clear from Mr Knight's testimony that he was unaware of the date of release of the Sexual Harassment Policy (Exhibit "R"). He did not even know who had written it and he stated that the Policy was adopted by the Board but the Minutes do not reflect that proposition. Exhibit Q merely states that the information from the Respondent's Solicitors was noted and received and that it was recommended incorporating the Policy in all contracts of employment. There were no Minutes produced by the Respondent endorsing or approving the EEO Policy (Exhibit "S"). Certainly no endorsement by the Board of the Memo allegedly published about sexual harassment by Mr Knight in early 1995 was established. In fact, there was no proof at all that any Sexual Harassment Policy or EEO Policy had been adopted by the Board of the Respondent. Mr Knight had little knowledge about the dissemination of the Sexual Harassment Policy. He said that he did not know if Exhibit "R" was handed out to existing employees but understood that it was given to new employees. In so far as Exhibit "S" is concerned, Mr Knight was questioned about whether the Grievance Handling Procedure mentioned in that policy was a separate document or not. He said that he thought it was. Only upon re-examination did Counsel for the Respondent draw to his attention that the Grievance Handling Procedure could be found at the back of the EEO Policy. The CEO of the Respondent did not even know it was there. Further, in re-examination, Mr Knight said that he had spoken to managers and female staff about sexual harassment issues. This was not put in any statements or evidence in chief. Mr Knight said that he thought appropriate training for Grievance Handling of sexual harassment issues was on-the-job experience of new managers learning to deal with customer complaints. Mr Knight, when advising his senior management about the resignation of Con Koustabardis, said, "We must all be careful it does not happen again." and "To have a witness if they find it necessary to talk to female staff." (Exhibit "N"). The Respondent had engaged a full-time Human Resources Manager, Mr Peter Heaney, who had no formal training in industrial relations or human resources management. Mr Heaney had and has an extremely poor understanding of the obligations imposed upon employers under the prevailing Anti-Discrimination legislation. He said that he had never read the Act, never informed himself of these issues. He said that he had copies of the Act and some other documents but these had not been produced under the Subpoena (Exhibit "U"). Mr Heaney said no one had shown him the Subpoena and he did not know anything about it. Mr Heaney had never run training sessions, produced policy manuals, arranged seminars, devised grievance handling procedures for sexual harassment or discrimination in the workplace. He was indifferent to the Club's obligations in this regard. He was an extremely unhelpful witness who said that he had never in 20 years at the Respondent ever seen or heard about an incident of sexual harassment or of discrimination. When pressed he said he had heard rumours but refused to disclose the nature of those rumours. The conduct of Mr Heaney is instrumental in assessing the way in which the Respondent dealt with people who came forward with complaints of sexual harassment. The evidence of Lynne Hailey was that after she had supported the Complainant in her formal complaint against Colin Jones, she was immediately transferred from her skilled job as a Tray Waitress to pushing a trolley and cleaning the slops. Ms Hailey resigned shortly thereafter. Exhibit "Y" is the Application Form for Ms Hailey that shows clearly that she was applying for a Steward's job only. Mr Heaney denied any connection between Ms Hailey's transfer and her role in helping the Complainant. But the Complainant submits that an inference must be drawn as to some connection or nexus between the two events. Similarly, Clay Clayton gave evidence that when he was called into Peter Heaney's office in relation to the complaint made to him by Stella Hardis, he was chastised for telling Ms Hardis that a complaint had been made about Mr Jones by the Complainant. In the same breath he was advised that he would be no longer acting in the supervisory position which he held at that time. Mr Heaney said that there was no connection - it just happened to be the time when that position came to an end. The Complainant submits that the coincidence is too convenient and that the proper inference is that Mr Heaney was punishing Mr Clayton for bringing the matter forward. Mr Clayton resigned shortly thereafter. Exhibit "NN" is a note to the Pay Mistress specifying that Mr Clayton was due to stop acting in the supervisory position on or about that date. It was conceded that this was never shown to Mr Clayton nor was there any evidence about whether that note had been written before or after Mr Heaney demoted Mr Clayton. Mr Heaney gave evidence-in-chief that when the Complainant resigned, she signed a resignation form (Exhibit "PP") but on re-examination Mr Heaney changed his evidence to say that she did not in fact sign it, he could not recall why he had not asked her to sign it and that there was nothing in the Respondent's records to show why the Complainant had resigned. More importantly, Mr Heaney says that he had scheduled a meeting for the Monday before the Complainant resigned but had been informed that a meeting took place on the previous Saturday night with Jim Thorn, the Gaming Manager. Mr Heaney did not ask for a report to be drawn up and says he was told that Colin Jones apologised and that the Complainant accepted it. Mr Heaney conceded that he did not check with the Complainant as to the accuracy of the statement but operated on the hearsay of Mr Thorn. Mr Thorn was not called to co-corroborate Mr Heaney's version of events. Similarly, Ron Harder, the Operations Manager, had a very poor knowledge of the provisions of the prevailing Anti-Discrimination legislation. Mr Harder had gathered some documents from the United States and the from Registered Clubs Association but it was not until April or May of 1995 that the one page undated "Sexual Harassment Policy" (Exhibit "R") was allegedly distributed. Then Mr Harder could not even remember when it was distributed. The Respondent was indifferent to the implementation of this policy. It was undated and none of the Respondent's witnesses can recall when it was allegedly handed out to employees. It was not put to any of the Complainant's witnesses that Exhibit "R" was handed to them. There is only the evidence of the management that it was distributed. Mr Peter Mitchell, a Manager and witness for the Respondent, gave evidence that he had never seen the document being Exhibit "R". He had never seen Exhibit "S" (being the EEO Policy developed sometime in 1996). In fact, Mr Mitchell said that the only document he had seen in the Respondent's premises about sexual harassment was another document not being either Exhibit "R" or "S" and not produced by the Respondent in these proceedings. Mr Mitchell admitted that he was a friend of Colin Jones'. His testimony was that he had never seen Mr Koustabardis sexually harass the Complainant and this was contradicted by a previous statement that he had made to Mr Jeff Knight as Exhibit "11" where he told Mr Knight that he had seen Mr Koustabardis touching the Complainant improperly. Mr Mitchell was the person to whom the Complainant had made most of her informal complaints (See Exhibit "A") and he had done nothing. Mr Nathan Patterson, House Manager, gave no advice to Peter Mitchell, a more junior Manager, when he came to him about the Complainant's allegation against Colin Jones. His evidence was of further assistance in showing that the entire managerial structure of the Respondent were unaware of any appropriate procedure to follow in relation to allegations of sexual harassment. It is alleged that a half page Memo from Jeff Knight concerning sexual harassment was attached to the bundy cards of employees at some time in March 1995. The Respondent had not kept a copy of that document and could not recall its contents. The Complainant, Michael Hamilton, Clay Clayton and Lynne Hailey said they recalled that it said that sexual harassment would result in instant dismissal. The document was never produced by the Respondent. PRIOR KNOWLEDGE ABOUT CON KOUSTABARDIS AND FAILURE TO ACT The Respondent knew that Mr Koustabardis had sexually harassed at least two if not three women of whom he was the Supervisor prior to the sexual harassment of the Complainant but the Respondent had done nothing - See Exhibits "11", "LL" and testimony of Jeff Knight. Jeff Knight said that even though prior warnings had been given to Mr Koustabardis, there was nothing on his Personnel file and no other documentation in the hands of the Respondent evidencing that warning. Peter Mitchell who was more senior to the Complainant and who had, at the time Mr Koustabardis was sexually harassing the Complainant, had certain managerial positions and did nothing. Mr Mitchell had even seen the acts of sexual harassment and not reported them to higher management but given that there was no grievance handling procedure or direction to staff, he may have been confused as to his obligations; PRIOR KNOWLEDGE ABOUT COLIN JONES AND FAILURE TO ACT It was admitted that Colin Jones' father is a member of the Board of Directors of the Respondent. Mr Knight also told the Tribunal that Mr Jones' mother and sister also worked at the Respondent. Mr Knight gave evidence that it was the practice of the Board of Directors for a Director to leave the meeting if a family member was being discussed. Mr Harder, who was actually at the Meeting of the Board on 18th May 1995 gave evidence that no one left the room during that meeting. The inference must be that no action was taken as against Mr Jones because of his father's position on the Board of Directors. Clay Clayton gave evidence that he had seen and heard Colin Jones on a number of occasions making sexual comments to female staff. He gave evidence that a Ms Nicole Dunn had made a complaint against Colin Jones prior to the complaint made by the Complainant. The Respondent stated that they had made some enquiries to find Ms Dunn but were unsuccessful. They did not however, produce her personnel file to show that no such complaint had been made. (vi) That the sexual harassment suffered by the Complainant during the course of her employment amounted to either a term of her employment or a detriment: The Complainant relies on the above matter set out in paragraphs (i) to (v) above. (vii) That the Respondent was responsible for a work environment which was hostile, offensive and intimidating to the Complainant: By virtue of the matters referred to in paragraph (v) above and the testimony of the Complainant herself, and that of Lynne Hailey, and Clay Clayton, the Complainant submits that the resultant work environment was one which was hostile, offensive and intimidating to the Complainant. (viii) That the Respondent was aware of the sexual harassment of the Complainant but failed to take any or any adequate steps to stop the sexual harassment of the Complainant: The Complainant relies on the matters set out in paragraph (v) above in relation to the prior knowledge of the management of the Respondent of acts of sexual harassment by both Mr Koustabardis and Mr Jones and its failure to take any adequate action to prevent the sexual harassment and victimisation of the Complainant. Even if this Tribunal was of the view that there was no knowledge on the part of the Respondent as to any previous complaints as against Colin Jones, there was still an overriding obligation on the Respondent to take effective action to inform, direct, train and insist upon employees the prohibition on all forms of discrimination and sexual harassment in circumstances where they were aware that such conduct had taken place with another employee. Moreover, they were under a special obligation to ensure that all employees who worked with the Complainant were directed as to their obligations to provide a safe work environment for the Complainant but they failed to do so. The issuing of a half page Memo (which cannot be located) could not be held to be sufficient. The one page Sexual Harassment Policy (Exhibit "R") is neither sufficient nor helpful. In any event, there is scant evidence as to whether this was in fact distributed to employees. There is evidence from all the Respondent's witnesses that no training, seminars or other measures were taken to enforce that Policy. The EEO Policy and Grievance Handling Procedure was not even drawn up until 1996 - well after the Complainant had left the Respondent. (ix) That the Respondent was aware of the victimisation of the Complainant but failed to take any or any adequate steps to stop the sexual harassment of the Complainant: The Complainant relies on paragraphs (iii) and (v) above. (x) That the procedures adopted by the Respondent were inadequate to prevent sexual harassment of the Complainant: See paragraphs (v) and (viii) above. (xi) That the sexual harassment policies of the Respondent were not enforced: See paragraphs (v) and (viii) above. (xii) That the Complainant suffered loss and damage including any economic loss: The Complainant relied on those matters set out in paragraph 35 of the Points of Claim and said that she suffered considerable distress, pain, humiliation and suffering. See Exhibit "A", oral testimony of the Complainant on 22nd September 1997 and Exhibits "F" and "G". The Complainant gave evidence that since losing her job with the Respondent, she had been unable to receive the same level of income. She has attempted to mitigate her loss by finding other employment as a Shop Assistant but there is no over-time and the pay is not as good. The Complainant stated and it was not challenged that at the time of leaving the employ of the Respondent, the Complainant was earning $380.00 per week in the hand from her job with the Respondent. The Complainant is now earning about $200.00 per week. The Complainant has produced and tendered Exhibit "H" in support of her claim. The Complainant claims economic loss, being salary she would have earned had she remained in the employ of the Respondent of $180.00 per week from 14 May 1995 to 14 November 1997, being 130 weeks at $180.00 per week, equaling $23,400.00. (xiii) That the discrimination against the Complainant took into account her sex when the discriminatory act occurred: All witnesses gave evidence that they had no knowledge of either Mr Koustabardis or Mr Jones ever discriminating against or sexual harassing a male employee nor any allegations of such discrimination or harassment. THE RELEVANT LAW The Tribunal has already set out in this Judgment the provisions of Section 53(1) and (2) of the Anti-Discrimination Act 1977 No. 48 and now sets out hereunder the other sections of the Act upon which the Complainant relies, namely: "24(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 the relative or associate of the aggrieved person, the perpetrator: (a) treats the aggrieved person less favourable 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) ..... 24(1)(A) For the purposes of Sub-Section (1)(a), something is done on the 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." The Complainant relies on the decision in O'Callaghan -v- Loder & Anor (1984) EOC 92-024 as authority for the proposition that unwelcome sexual advances amount to discrimination for the purposes of Section 24 of the Act. The Complainant submits that all of the elements required in the principle set out in O'Callaghan are satisfied in this case, namely: (a) The perpetrators took into account the fact that the Complainant was a woman when making sexual advances to her; (b) The acts of sexual harassment occurred in the course of employment; (c) The Complainant received less favourable treatment than a male employee; (d) The less favourable treatment, (ie, the harassment) was because of the Complainant's gender; (e) The gender of the Complainant was a significant factor in the harassment. The fact that the assault incident where Mr Jones pushed his tongue into the Complainant's mouth occurred only once does not preclude it from constituting sexual harassment; Hall & Ors -v- Sheiban Pty Ltd & Ors (1989) EOC92-250 at Page 77,428. LIABILITY OF THE EMPLOYER The Respondent was aware of the possibility of instances of sexual harassment in its workplace by virtue of the fact that it was a large workplace, with a predominance of women in supervised positions. The Respondent was aware of at least two, if not more, particular instances of sexual harassment by Mr Koustabardis prior to the complaint being made by the Complainant but did nothing to change it. The Respondent was aware of the previous conduct of Mr Jones concerning complaints for sexual harassment by other employees prior to the complaint made by the Complainant but did nothing about it. The Respondent did not take any or any adequate steps to prevent the sexual harassment and victimisation of the Complainant. Such conduct makes the Respondent responsible for the acts of its employees in sexually harassing the Complainant. The Complainant relies on the authorities in Hill -v- Water Resources Commission (1985) EOC92-128 at Pages 76,288-90. The fact that the Respondent had no effective procedures in place and its lack of effective action in implementing and enforcing and appropriate Sexual Harassment Policy and Grievance Handling Procedure meant that the complaints occurred when they might not have occurred. The matters set out above, particularly the entirety of the evidence concerning the managerial structure of the Respondent, its indifference to its obligations under the Act and other prevailing legislation are proof that the Respondent failed in its obligations to the Complainant. This conduct is sufficient to establish that the Respondent did not work, either expressly or by implication, not authorise its employees to do the unlawful acts; Adams -v- Helios Electroheat Pty Ltd & anor (1996) EOC92-856 Pages 79,362-3; Lin -v- Kirlappos (1995) EOC92-711 at Page 78,353; Aldridge -v- Booth & Ors (1986) EOC92-177. The provisions of Section 53 apply to make the Respondent responsible for the acts of Mr Koustabardis, Mr Jones and those of its employees, including Ms Charissis, who victimised the Complainant after she had made the complaints about sexual harassment in the workplace of the Respondent. (Similarly, the case of Hopper -v- Mt Isa Mines Ltd & anor (1997) EOC92-87 is authority for the proposition that even where the employer has a relevant Sexual Harassment or Anti-Discrimination Policy, unless the employer takes adequate and sufficient steps to police and enforce that Policy, then the employer is failing in its obligations to its employees and will be held responsible for any discriminatory acts. LEGAL COSTS The Complainant sought an Order that the Tribunal exercise its discretion under Section 114(2) of the Act and award costs as assessed. The Complainant submitted that the Tribunal should exercise this discretion on the following grounds: 1. The Respondent put the Complainant to formal proof of matters which were never an issue. These matters have been referred to previously in this Judgment. In particular, the Complainant was put to formal proof of the fact that the sexual harassment occurred by both Mr Koustabardis and Mr Jones in circumstances where the Respondent brought no evidence to refute those allegations. Neither Mr Koustabardis nor Mr Jones were called to give evidence and the Complainant was put to significant time and expense in addressing matters which were not effectively in controversy. 2. The matter was originally set down for three (3) days. It ran for 6 days and the Complainant submitted that the way in which the Respondent had run its case had been done in such a way as to severely lengthen the proceedings and in particular, the Complainant submitted: (a) The Respondent called seven (7) witnesses, asked additional questions of each as well as tendering written statements in circumstances where their evidence was properly contained in the statements alone; (b) The fact that the Respondent had not properly answered the Subpoena (Exhibit "U") lead to unnecessary legal argument which further delayed proceedings; (c) That the cross-examination of both Ms Hailey and Mr Clayton was excessive in the circumstances. It was clear from the evidence, particularly that given by the members of management of the Respondent, that the procedures and policies in place at the Respondent's undertaking were severely inadequate and offered no protection to existing employees. The Complainant put the Respondent on notice on 24 September 1997 that she would be seeking ancillary Orders for the Tribunal to direct the Respondent to institute a proper and adequate regime of policies and procedures and to train staff accordingly. The Complainant sought those Orders on the grounds of public policy in ensuring that such a large workplace with a predominance of women in supervised positions be made safe. On the basis that the relief sought took this case out of the ordinary and places a public policy issue in the hands of the Tribunal. The Complainant relied on the principal in Holdaway -v- Qantas Airways Limited (1992) EOC92-430. The Complainant received no funding in the Hearing of this matter and in circumstances where the legal costs may out weigh any damages awarded because of the length of the proceedings and the conduct of the Respondent in failing to abide by the estimate of Hearing length given at the Directions Hearing, the Complainant requested the Tribunal to exercise its discretion and award an amount for legal costs. The quantum of legal costs as assessed by the Complainant was $21,616.00 and in support of that claim in the Court file is a Bill of Costs prepared by the Complainant's Solicitor and a draft Memorandum of Fees of the Complainant's Counsel. THE CLAIMS OF THE COMPLAINANT The Complainant claimed: (a) An Order that the Respondent pay to the Complainant: (i) General damages; (ii) Special damages for economic loss; (b) An Order by way of incidental relief that the Respondent conduct such Sexual Harassment Training Programs as the Tribunal thinks fit for the training and education of the Respondent's staff, including management, in relation to the provisions and obligations of the Anti-Discrimination Act 1977 and in relation to the implementation and observation of the Respondent's own Sexual Harassment and Equal Opportunity Policies. (c) Costs in the amount of $21,616. (d) Any other such Order that the Tribunal deemed appropriate. The Tribunal refers to a letter dated 11 June 1996 from Ms Annie Crowe, the Co-Ordinator of Community Health Services, Eastern & Central Sexual Assault Services, and from Dr Marina Kang, both relating to the Complainant and indicating in part the way in which the conduct of the Respondent and its employees had adversely affected the health of the Complainant. THE CONSIDERATION OF DISPUTED ISSUES BY THE TRIBUNAL Where evidence was in dispute, the Tribunal found: 1. That the Complainant was a truthful witness and her evidence should be preferred where it conflicted with the evidence of the Respondent's witnesses. 2. The Tribunal considered that not only the Complainant, but also her witnesses, were witnesses of truth and their evidence should be preferred where it conflicted with the evidence of other witnesses, either of the Respondents or those witnesses called on its behalf. 3. The Tribunal considered that the Complainant was open, frank, candid and forthright in giving her account of the matter as submitted by her Counsel and that she was not evasive and did not exaggerate when giving evidence of the consequences of the Respondent's conduct upon her. FINDINGS OF THE TRIBUNAL (a) The Tribunal finds that Mr Koustabardis and Mr Jones, employees of the Respondent descriminated against the Complainant on the grounds of her sex within the meaning of Section 24 of the Act. (b) The Complainant was intimidated and victimised by Mr Jones and other staff members of the Respondent and that the said victimisation was unlawful and a contravention of Section 50(1)(c) and/or (d) of the Act. (c) The fact that the Respondent failed to take any or any adequate action to prevent the sexual harassment of the Complainant caused the Complainant to resign and constituted a constructive dismissal of her employment. (d) That pursuant to the provisions of Section 53(1) and (2) of the Act, the Respondent is vicariously liable for the acts done by Messrs Koustabardis and Jones. ORDERS THAT: 1. The Respondent pay to the Complainant the sum of Thirty thousand dollars ($30,000.00) by way of general damages for: (a) Humiliation; (b) Intimidation; (c) Loss of weight; (d) Loss of appetite; (e) Loss of sleep; (f) Nervousness; (g) Aversion to men; (h) Strong sense of disillusionment; (i) Stress, the said sum to be paid within Thirty (30) days from the date of this Judgment. 2. The Respondent pay to the Complainant by way of special damages for economic loss between 14 May 1995 to date, the sum of Twenty three thousand four hundred dollars ($23,400.00) assessed on the basis of loss of income of $180.00 per week, such sum to be paid within thirty (30) days from the date of this Judgment. 3. That the Respondent pay to the Complainant the sum of Seventeen thousand five hundred dollars ($17,500.00) on account of the Complainant's costs, such sum to be paid within thirty (30) days from the date of this Judgment. 4. An Order by way of incidental relief that the Respondent conduct such Sexual Harassment Programs as the Tribunal thinks fit for the training and education of the Respondent's staff, including management, in relation to the provisions and obligations of the Anti-Discrimination Act, 1977 (As Amended) and in relation to the implementation and observation of the Respondent's own Sexual Harassment and Equal Opportunity Policies. 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.