Equal Opportunity Tribunal of New South Wales CITATION: Richards -V- Corptel Pty Limited [1997] NSWEOT COMPLAINANT: Ms Jaime Richards RESPONDENT: Corptel Pty Limited NUMBER: 64 of 1997 Mr D Bitel ( Judicial Member ) TRIBUNAL: Mrs R Cox Mr L Lau GROUNDS OF COMPLAINT: Sex (Sexual Harassment) and Victimisation DATES OF HEARING: 10/09/1997 DATE OF JUDGMENT: 10/09/1997 Complainant: Mr T Goldburg Turner Freeman Solicitors Ms S Winters (Counsel) LEGAL REPRESENTATIVES: Respondent: Mr D Sisinni Yandells Lawyers JUDGMENT IN FAVOUR OF: CHAIRPERSON: The Tribunal has considered the issues which have been raised in this complaint and proposes to hand down our decision now and to give reasons now as well. Firstly, the decision. The Tribunal finds for the Complainant and finds substantiated the complaints that she was treated less favourably and subjected to detriment during the course of her employment, and that she was subjected to sexual harassment. The Tribunal also finds that she was subjected to victimisation. In terms of the award, the Tribunal makes an order that the Respondent pay to the Complainant, within 28 days, an amount of $2,538.42 for lost wages, which was an amount which was agreed between the parties, and an amount of $5,000 by way of general damages. The Tribunal also makes an order for costs against the Respondent. The reasons the Tribunal makes those orders are as follows: - The Complainant was born on 26 June 1978, and commenced employment with the Respondent some time in the middle of 1995. She seems to have been a satisfactory employee, and evidence was given to the Tribunal from Mr O'Hare, the Managing Director of the Respondent, that she was a satisfactory employee, and that up until the events the subject of the complaint, they had no cause for concern with her conduct. The Complainant took her leave some time before Christmas in 1995, to resume work on 5 January 1996. The Complainant provided a detailed statement, which was annexed to the President's Report, which was tendered in evidence and a supplementary statement which was also tendered in evidence, which sets out the circumstances of events which occurred in early January 1996, between herself and her immediate superior, Mr Colin Tyte, who was then the National Sales Manager for the Respondent company. It is not necessary for the Tribunal in this case, we think, to go into detail and to repeat the terms of that evidence, because it is not in dispute. The Tribunal accepts as a matter of fact, the events as stated by the Complainant. No evidence was led to the contrary by the Respondent, and it is noted that the one person we suppose who could have provided evidence that the acts of sexual harassment, which were the subject of the complaint, did not occur, namely Mr Tyte, was not called to give evidence and was not subjected to cross examination. So in those circumstances, the terms of the complaint have to be accepted as to what factually occurred. Briefly, on the evening of 3 January 1996, the Complainant went out for dinner with Mr Tyte, who it should be noted was a man in his late 40's and who had a position of superiority in the company vis-a-vis the Complainant. During the course of the evening, a proposition was put to the Complainant by Mr. Tyte, the effect of which is that unless the Complainant agreed to have a three month sexual affair with him, her position with the company would be in jeopardy. Whilst that proposition was put, statements were made of a sexual nature, which made it quite clear to the Complainant, a vulnerable and sensitive girl, at that time, that she should comply with this sexual request or she would have problems in the company. There was some discussion in the evidence given at the hearing, as to whether or not the Complainant should have known that Mr. Tyte had the power, or did not have the power, to terminate her services. The Tribunal considers it not unreasonable that a young, recently employed 17 year old, would have accepted that her superior, who was in a senior position in the company, would have the power to effectively either himself or by recommendation to the Managing Director, secure the termination of her employment. We think indeed the inference to be drawn from the evidence from Mr. O'Hare, was that he would not have disagreed with that proposition. Be that as it may, the Tribunal finds that that is the view that the Complainant had and that belief was not unreasonable. The complaint is brought under the Anti-Discrimination Act, S25 sub sections (1) and (2) it is not necessary to set out the terms of those sections. The Tribunal finds that the actions of Mr. Tyte, an employee of the Respondent, amount to sexual discrimination, and the law in this regard is well settled. The principles have been set forth in O'Callaghan v Loder & Anor. (1984) EOC 92-022, Hill v Water Resources Commission (1985) EOC 92-127, Hall & ors v Sheiban & Anor (1988) EOC 92-227 in the 1980's and have been consistently applied by this Tribunal fairly recently, and indeed most recently and significantly in Judge and Saville v Durovic (1996) EOC 92-789 We do not believe that the Respondent can properly expect this Tribunal to make findings counter to those court decisions which are binding on us. The learned authors of the CCH Australian and New Zealand Equal Opportunity Law and Practice provide numerous illustrations of the types of conduct which amount to sexual harassment. We think it is significant that the conduct that the Complainant was subjected to, fits in to the more, if you like extreme, more overbearing types of sexual conduct and is not of the less serious type. Examples of sexual conduct amounting to harassment include attempts at sexual intercourse or some other overt sexual connection, kissing, touching, gender based insults or taunting, unwelcome remarks or insinuations about a person's sex or private life, proposals of marriage, declarations of love, offensive telephone calls, display of offensive or pornographic material such as posters, pin-ups, cartoons, graffiti or calendars, sex based insults or taunts. These are taken from the CCH at pages 47,054 to 47,072 and as we said, the Tribunal is of the view that the problems that the Complainant was subjected to are at the more extreme end of the spectrum. Evidence was called from the Complainant in support of her case, and she conceded that as a result of the events she felt that there was no other course for her to follow than to leave the company because it was impossible for her to continue to work in the presence of Mr Tyte. The Tribunal was appraised of the fact that at the time the company was not a large enterprise, that its personnel were located on essentially one floor and both Mr O'Hare and Mr Josephson who gave the only other evidence provided by the Respondent, in their written statements and orally, conceded that it was a small company. Mr O'Hare significantly when looking at what could be done with the Complainant upon having received the complaint agreed without demur at the time to her departure, and inferentially from the statement which he made in response to questions in the witness box conceded that to lose Mr Tyte would have resulted in substantial financial hardship to the business. This yet again is an example of the victim having to pay for the consequences of the actions of the harasser. It would seem that the company has implemented some form of equal opportunity regime to overcome the problems, and that is a welcome development, but nevertheless it does not assist the Complainant in the problems that she experienced. The company may well have been in a difficult situation when faced with a complaint of this type, but the Tribunal is of a view that having received the complaint, the company adopted the simple solution which was to see the Complainant leave, rather than to adopt a more appropriate solution which ensured that the Complainant's concerns were addressed and that she should not have to face the problems that she did face. The Complainant then gave evidence in her statements about the problems which she has experienced subsequent to the ending of her employment, and again there was no evidence led to the contrary. The Tribunal accepts that she did suffer trauma and sleep depravation and nightmares for a period of time, some twelve months. The Tribunal therefore has found that the Complainant has established that she was the victim of actions by Mr Tyte which amounted to sexual harassment. It is important to note that at the commencement of these proceedings the Respondent conceded that there was no question of a Section 53 defence, and that they accepted responsibility for the actions of Mr Tyte as an employee. The other ground of the complaint amounts to victimisation, and Miss Winters for the Complainant made submissions that the actions of the Respondent were a detriment to the Complainant which brought into operation the provision of Section 50(1) of the Act. They provide: "It is unlawful for a person to subject another person to any detriment in any circumstances on the ground that the person victimised: (c) has alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act;" The allegation was made on the morning of 5 January. Subsequently she was put on a week's leave and then her resignation was accepted. The Tribunal accepts that this was positive conduct by the Respondent which was a detriment to the Complainant, and as a consequence accedes to the Complainant's submission that there was conduct by the Respondent which amounts to victimisation for the purposes of the Section. In assessing the damages which are to be awarded, the Respondent conceded that if the Tribunal found for the Complainant the amount of special damages by way of lost wages was two thousand five hundred and thirty-eight dollars forty-two gross, and that it was an appropriate amount to be paid, so that is the calculation, six weeks lost income before the Complainant was able to obtain other employment. As to the claim for general damages, the Complainant sought an award of between ten to fifteen thousand. The Respondent proffered an amount of five. Assessing general damages is always difficult for a Tribunal, and in so doing the Tribunal has to have regard to a series of indices which can never be totally quantified. It is of assistance to look to amounts which have been awarded in other cases, and most recently the Judge case provides some assistance to the Tribunal in the amount of general damages. Whilst the Tribunal has made statements as to the seriousness of the act complained of, the Tribunal does note that it only occurred once and that regrettably though it may be, the Complainant was not forced to maintain contact with Mr Tyte thereafter. She has of course suffered the ultimate employment consequence of losing her job, but fortunately for the Complainant she appears to have come out of the undoubtedly traumatic events somewhat unscathed, and the Tribunal hopes that she will be able to henceforth lead a happy and settled life and that she will not suffer a repeat of these unfortunate events. Having heard the evidence and considered the situation of the Complainant, the Tribunal believes that an award of five thousand dollars is an appropriate amount by way of general damages to compensate the Complainant having regard to the situation that she has found herself in as a result of the actions of the Respondent through Mr Tyte. That brings us finally to the question of costs. On this issue, it was not necessary for the Tribunal to hear at any length submissions from the Complainant because a document which was tendered by Mr O'Hare as part of his evidence and in consequence resulted in a waiver of what might otherwise have been privileged, indicated to the Tribunal that an offer to settle of eight thousand dollars had been made which the Respondent declined. The award in favour of the Complainant is almost the amount that she sought. There are no fixed principles that bind a Tribunal in the awarding of costs. The Tribunal has a discretion, and in previous decisions the Tribunal has looked at factors which should be considered in making a costs order. The decision of Judge Graham in Holdaway v Qantas Airways Limited (1992) EOC 92-430 is one such case. I looked at it in an earlier case of White and Christley v Sydney University (1992) EOC 92-544. The Tribunal believes that this is a case which is exceptional, and indeed it is quite regrettable that the case had to come before the Tribunal, to subject the Complainant to the obvious trauma that she would have had to go through, not only today but in events leading up to today and reliving what occurred, and given that essentially the Respondent has come to the Tribunal not disputing in any meaningful sense any of the significant or relevant factual or legal issues, and indeed has conceded in the final submissions that given that the Tribunal would in all likelihood find for the Complainant an amount should be awarded in her favour comparable to the amount she originally claimed in that first settlement offer. In those circumstances the Tribunal believes that having regard to the way the Respondent's case was presented and we make no comment in making that statement adverse to the Respondent's professional representatives, but in the way it was heard, that it is an appropriate case for costs to be awarded against the Respondent. Are there any other matters that you would ask the Tribunal to consider? WINTERS: Judicial member so that we don't have any risk of coming back fighting as to the quantum of costs because the rules of the Tribunal don't provide for taxation or anything like that, I would wish to put some figures before the Tribunal to consider in relation to costs because I did have a discussion with my friend and he said to me that he would certainly be opposing payment of counsel's costs. SISINNI: No not counsel's costs, instructing solicitor's costs. I'd just say that the solicitor's attendance here I'd say was not necessary. I think there's been unnecessary duplication. I certainly don't dispute counsel's fees but I don't think-- CHAIRPERSON: I think that surely whilst it is accepted that the old rules of barristers not being present without solicitors have gone, can you lead me to any authority which would justify why if the Complainant chooses to be represented by a barrister with an instructing solicitor that is so unreasonable that she should not be entitled to have both of those costs met by the Respondent? SISINNI: No I don't have any authority, I just put it to you that it's not as if there was a vast amount of documentary evidence to be collated and retrieved by the instructing solicitor, not a huge amount of witnesses, that the matter could have been dealt with quite easily in my respectful submission by counsel alone. CHAIRPERSON: But Mr Sisinni until this morning we didn't know what the evidence was. SISINNI: My friend's been on notice for at least the last week when I did fax those statements to her, oh well to the instructing solicitor. CHAIRPERSON: I hear what you say. If that is the issue of dispute I would not be prepared to agree to that request. The Tribunal believes it is appropriate for the Complainant to have her solicitor's and her barrister's fees compensated. WINTERS: Judicial member I'm still inclined to seek quantification of the amounts given-- CHAIRPERSON: Well you raised one issue of where there was a dispute. I think we have addressed that. WINTERS: I'd seek costs in the amount of eight thousand one hundred dollars which comprises counsel's fees in the amount of Two thousand two hundred dollars. CHAIRPERSON: That's for today and advices on evidence and conferences. WINTERS: Five hours' preparation, conferences with the client. That's clearly beyond the current legal aid rates - under the current legal aid rates. CHAIRPERSON: In discussing outside in the members' room, that was an amount that I think we considered would be not unreasonable for counsel. WINTERS: My solicitor estimates that expenses including service of subpoenas, photocopying-- CHAIRPERSON: Well I don't think we need to worry about disbursements incurred. Those will be clearly covered. WINTERS: Should be documented, and solicitor's costs in the amount of Five thousand five hundred dollars. Whilst at first blush that might seem excessive, this case has obviously resulted in considerable solicitors' files on both sides of the Bar Table. There was one directions hearing, the timetable set by the Tribunal, Points of Claim were drafted by my instructing solicitor and subsequently amended, statements were prepared and filed. CHAIRPERSON: I don't think that I could agree to that request. I would prefer to make an order in relation to solicitors costs that they be, if you can't reach an agreement that they be costed in accordance with the District Court scale. Would you have any problems with that? SISINNI: No judicial member. WINTERS: I'm instructed that there isn't currently a District Court scale, that is one of the problems. SISINNI: I'd suggest that the costs as agreed or assessed. CHAIRPERSON: I mean this is the first time I've had to deal with the issues, but what does the District Court do when faced with a similar sort of problem? WINTERS: It rises from the Legal Profession Act, a reasonable assessment of costs. CHAIRPERSON: There is still a Supreme Court scale isn't there? WINTERS: Not that operates in that way which is why Legal Aid have its own scales. CHAIRPERSON: Well then on a party party basis, why can't we go for the Legal Aid scale and then in addition can be the solicitor client to your client. SISINNI: Well judicial member may I suggest it just be costs as agreed or assessed in the Supreme Court. CHAIRPERSON: I'm not sure whether there's a power to approach the Registrar of the Supreme Court for a taxation. WINTERS: No there's not and that's part of the problem, that's why I ask for the actual quantification. CHAIRPERSON: Do you have any problems then with the Legal Aid scale for party party, or why can't I say the District Court scale as it last stood before it was repealed. WINTERS: That judicial member is a very unattractive proposition from the Complainant's point of view. SISINNI: How about Local Court judicial member? CHAIRPERSON: Well the problem that I have is that if we can't reach an agreement I have to set a figure because I'm not going to come here as a costs assessor. I can only offer you two alternatives, one is the last applicable District Court scale before it was repealed, the other is the Legal Aid scale. I don't know what they are, so it's a matter for you to say which you or your instructing solicitor would prefer. WINTERS: My instructing solicitor tells me that he wouldn't have a difficulty with the District Court scale and that obviously provides a basis for my friend to-- CHAIRPERSON: I think that's the logical one given that the Tribunal as constituted is essentially at the level of the District Court. So I will make an order that costs of counsel's fees set at Two thousand two hundred dollars, solicitor's costs as agreed or in the event there is no agreement as itemised in accordance with the last prevailing District Court scale and reasonable disbursements. SISINNI: Could you direct that the subpoenaed material be returned? CHAIRPERSON: I will certainly make that direction. Now you foreshadowed a suppression order earlier in the day. I asked that that be held over until towards the end of the day. We have now concluded. Do you pursue it or-- WINTERS: No I don't judicial member. 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