Equal Opportunity Tribunal of New South Wales CITATION: Wheeler -V- Shellharbour Golf Club Limited, Gough & Jeffrey (No.1) [1996] NSWEOT COMPLAINANT: Ms Lynne Isabel Wheeler First Respondent Shellharbour Golf Club Limited RESPONDENT: Second Respondent Mr James Gough Third Respondent Ms Delmar Veronica Jeffrey NUMBER: 85 of 1995 Ms Penny Goode ( Judicial Member ) TRIBUNAL: Ms M Alt Mr D McNeill GROUNDS OF COMPLAINT: Sex discrimination (sexual harassment) Victimisation DATES OF HEARING: 05/14/1996; 05/15/1996; 08/26/1996; 09/02/1996; 09/03/1996 DATE OF JUDGMENT: 09/02/1996 Complainant: Ms S Davitt (Solicitor) Redfern Legal Centre Ms S Winters (Counsel) Respondent: First and Third Respondent LEGAL REPRESENTATIVES: Mr C Osborne (Solicitor) Russell McClelland and Brown Ms J Gleeson (Counsel) Second Respondent Mr G Morrison (Solicitor) Leo and Morrison Mr S Hill (Counsel) JUDGMENT IN FAVOUR OF: On the first day of the hearing of this matter, on 14 May 1996, Ms Winters, counsel for the Complainant, made an application for leave to amend the Points of Claim which were filed with the Tribunal on 22 December 1995. Ms Gleeson, counsel for the First and Third Respondents, and Mr Hill, counsel for the Second Respondent, objected to leave being granted, first on the basis that the amendments were misconceived and secondly, on the basis that prejudice would be occasioned to the respondents. The proposed amendments which appear specifically to affect the First and Second Respondents are as follows: First, in relation to paragraph 2, to add the words "providing services relating to entertainment, recreation or refreshment" to the end of the paragraph. Secondly, to insert a new paragraph numbered 2A stating: "At all material times the First Respondent was the holder of a licence, permit or authority under the Liquor Act 1912." Thirdly, to insert a new paragraph numbered 11A stating: "The harassment described in paragraph 6(c) above was unlawful discrimination for the purposes of ss 32 (1) (b) and 33 (1) (b) of the Act." Paragraph 6 of the original Points of Claim states that the Complainant was sexually harassed by the Second Respondent on at least three occasions during the course of her employment with the First Respondent. Under the heading "Particulars", paragraph 6(c) sets out the details of the conduct which allegedly occurred at the staff Christmas party. It states: "On 10 December 1994 and during a dance at the staff Christmas party the Second Respondent forcefully held the Complainant against his body in such a way as to cause his penis to rub against the Complainant's left thigh. The Second Respondent's penis was erect at this time. Three members of staff saw the incident and gave evidence of this to a meeting of the Board of Directors of the First Respondent. The Complainant believes other staff and Club members also saw the incident." In the original Points of Claim it is alleged that the aforementioned incident together with other less public incidents constitute sexual harassment which is unlawful under s.25(2) (a) and s.25(2) (c) of the Act. As I understand the Complainant's case, this is her primary claim and the claims under ss.32(1) (b) and 33(1) (b) are pleaded in the alternative. On 14 May 1996, in the course of argument relating to the Complainant's application, Ms Winters provided written particulars of the proposed amendments concerning the claims under ss 32 (1) (b) and 33 (1) (b). The particulars in respect of the s 32 (1) (b) claim are as follows: "The First Respondent discriminated against the Complainant on the ground of her sex, in that the Second Respondent, the then President of the Club, sexually harassed the Complainant on 10 December 1994, when the Complainant was attending a party at the premises of the First Respondent." Further, "The First Respondent allowed the Complainant access to the Club's premises on the implied term that the Complainant be subjected to sexual harassment, or that she be subjected to sexual harassment in her use of the Club's facilities." The particulars in respect of the s33(1) (b) claim are as follows: "The First Respondent as a service provider discriminated against the Complainant by providing her with those services on terms that were not imposed upon male recipients of those services. The discrimination was sexual harassment by the Second Respondent, the then President of the Club." Further, "The services provided were entertainment, recreation or refreshment. The services were provided on the implied term that she be subjected to sexual harassment by the Second Respondent." Section 32(1) (b) of the Act provides: "It is unlawful for a person being the holder of a licence, a permit or an authority under the Liquor Act 1912 to discriminate against another person on the ground of sex: (b) nbsp; in the terms on which the holder is prepared to allow the person access to or the use of any such place." Section 33 (1) (b) of the Act provides: "It is unlawful for a person who provides, for payment or not, goods or services to discriminate against another person on the ground of sex: (b) nbsp; in the terms on which he or she provides the person with those goods or services." The term "services" is defined in s.4(1) of the Act to include services relating to entertainment, recreation or refreshment. On behalf of the First Respondent, Ms Gleeson contends in her written submissions that the conduct specified in paragraph 6(c) of the Points of Claim could not amount to either a term on which the Club was prepared to allow the Complainant access to or the use of the Club's premises or a term on which the Club provided the Complainant with goods or services. Although the Second Respondent did not file any written submissions, I understand from Mr Hill's oral submissions that he also adopts this submission. The Tribunal is currently conducting an inquiry into two related complaints, one of sexual harassment and the other of victimisation. The proposed amendments relate specifically to the complaint of sexual harassment. Given that the inquiry into the two complaints has been adjourned until today for further hearing, I am of the view that any prejudice occasioned to the respondents by the lateness of the Complainant's application can be overcome. In these circumstances, the issue of primary concern is whether the conduct set out in paragraph 6 (c) of the Points of Claim is capable of contravening s.32 (1) (b) and/or s.33 (1) (b). If it is not, then I am of the view that I should not grant leave to the Complainant to amend the Points of Claim in the manner proposed. Interestingly, Part 3 of the Act which deals with sex discrimination is the only part of the Act that expressly includes a provision relating to "access to places where liquor is sold". I understand that s.32 (1) was originally included in the Act because of the practice of many hotels at the time to exclude women from the public bar area. However, in view of the fact that access to or the use of a place where liquor is sold appears to fall within the definition of "services" in s.4(1) of the Act, it is difficult to see what additional purpose the section now serves. In relation to the present application, for the sake of convenience I propose to specifically discuss only the issue of whether the conduct in question is capable of contravening s.33(1) (b). If it is, then I am of the view that it would also be capable of contravening s.32 (1) (b). In order for the First and Second Respondent's conduct to fall within s.33 (1) (b), the evidence must be capable of establishing a number of matters. First, the Club provides goods or services. Secondly, it provided goods or services to the Complainant. Thirdly, she received less favourable treatment than a man received or would have received in comparable circumstances within the meaning of s. 24(1) (a) of the Act. Fourthly, this unfavourable treatment is found in the terms on which she was provided with the relevant goods or services. Fifthly, the Club is vicariously liable for the conduct of the Second Respondent. Finally, the Second Respondent caused, instructed, induced, aided or permitted the Club to unlawfully discriminate against the Complainant. In my view the first two points are unlikely to pose any great difficulty for the Complainant. The remaining four points are, however, considerably more complex. Relying on the approach adopted by the majority of the High Court in Waters & Ors v Public Transport Corporation (1991) EOC 92-390 and by Judge Matthews (as she then was) in O'Callaghan v Loder & Anor (1984) EOC 92-022, Ms Winters submits that a broad, liberal approach should be adopted when interpreting the expression "terms" in s. 33(1) (b). I accept this submission. In Waters, the Victorian Equal Opportunity Board had found that, by the introduction of a ticketing system (involving the use of "scratch" tickets) for public transport and the removal of conductors from some trams, the Corporation had indirectly discriminated against various impaired persons within the meaning of s.29 (1) of the Victorian Equal Opportunity Act 1984. At the relevant time, s.29 (1) was couched in similar terms to s.49K (1) of the New South Wales Act. Section 49K (1) has now been replaced by s.49 M (1). At the relevant time, s.29(1) of the Victorian Act proscribed two categories of discriminatory conduct for impaired persons: first, discrimination by refusing to perform services (paragraph (a)), and secondly, discrimination in the terms on which the services are performed (paragraph (b)). Although s.33(1) of the NSW Act relates to sex rather than impairment, it is relevant that it proscribes the same categories of discriminatory conduct. The majority of the High Court in Waters accepted that the Board had appropriately identified the relevant service as the public transport system, and the introduction of scratch tickets and the removal of conductors from some trams as conditions incidental to the provision of the service. In doing so, they appear to have accepted that the terms on which the service was provided to the complainants within the meaning of s. 29(1) (b) were synonymous with a "requirement or condition" of the provision of that service within the meaning of s.17(5). At the relevant time, s.17(5) of the Victorian Act was couched in similar terms to s.49A (3) of the NSW Act. Section 49A (3) has now been replaced by s.49B (1)(b). In their joint judgment, the then Chief Justice and Gaudron J pointed out that, in the context of s.29 of the Victorian Act, the notion of "requirement or condition" would seem to involve something over and above that which is necessarily inherent in the services provided but, subject to that, there was nothing in s.29 or in s.17(5) to suggest that the services or the requirement or condition, if any, involved in their provision should be identified in any particular way: see EOC at p.78,675. The other members of the majority essentially agreed with this approach: see, for example, the joint judgment of Dawson J and Toohey J at EOC p. 78,693. In Woods v Wollongong City Council & Ors (1993) EOC 92-486, this Tribunal, differently constituted, also adopted a broad approach when interpreting s.49K(1) of the Act. As mentioned before, this section has now been replaced by s.49M(1). Pursuant to s.49K(1)(b), it was unlawful for a service provider to discriminate against a physically handicapped person in the terms on which the services were provided. In Woods, the complainant was a paraplegic confined to a wheelchair who alleged, inter alia, that she was unable to gain access to the Crown Gateway Shopping Complex in Wollongong at three specified entry points without assistance. After defining the relevant service as the provision of the benefits of the complex, the Tribunal found that the service had been provided to the complainant on the terms that access to the complex be via stairs or an escalator at one entrance, via a ramp and a walkway at another entrance and via two steps at a third entrance: see EOC at p.79,505. Although the decisions in Waters and Woods dealt with issues of discrimination on the ground of physical impairment, rather than sex, they both related to the provision of services. Moreover, they illustrate the importance of interpreting both the relevant services and the implied terms on which those services are provided in a broad and beneficial way so as to achieve the objects of the legislation. Similarly, in the decision of O'Callaghan v Loder, Matthews J adopted a broad approach when interpreting the words "terms or conditions of employment" in s.25(2)(a) of the Act. Her Honour's decision makes it clear that unwanted and unsolicited sexual conduct by a person's employer in such circumstances that the employer knew, or ought to have known, that the conduct was unwelcome will amount to a contravention of s.25(2)(a) if the conduct creates an unwelcome feature of the person's employment in a continuing rather than in an isolated sense. Significantly, however, Her Honour did not discount the possibility of an employer's single act of sexual aggression so tainting the working environment as to come within this section: see EOC at p.75,505. In explaining what she meant by an unwelcome feature of employment, Her Honour said that this was a different way of describing the situations, referred to in the American cases, where the pattern of sexual harassment resulted in the employee being subjected to a hostile or demeaning work environment. She went on to say that in such circumstances either the unwelcome sexual conduct itself, or the hostile and demeaning atmosphere created by it, can become such a feature of the employment that it can constitute a term or condition of it: see EOC at p. 75, 505. Since the decision of O'Callaghan v Loder, it is now widely accepted that, although the Act does not specifically make sexual harassment unlawful, such conduct can constitute unlawful sexual discrimination in the terms or conditions afforded to an employee. With the exception of Evans v Lee & Anor (1986) EOC 92-822, which I propose to discuss later, as far as I am aware all Australian decisions to date have related to either a person seeking employment or a person already in employment. However, in my view there is nothing in the definition of sexual harassment to limit its application to the employment arena. Accordingly, as pointed out by Ms Winters, there seems to be no reason in principle why sexual harassment should not also be capable of amounting to unlawful discrimination on the ground of sex in other areas prescribed by the Act, such as education (s.31a), accommodation (s.34) and registered clubs (s.34A), as well as the provision of goods and services, and access to, and the use of, places where liquor is sold. Ms Gleeson submits that it is straining the language of the Act to say that the "environment" in which the Christmas party was conducted was hostile or demeaning or otherwise negative because of the alleged conduct. Whether this is so will ultimately depend on the evidence. While I am not expressing a concluded view, taking the Complainant's case at its highest, I consider that the serious public nature of the alleged conduct is such that it is capable of amounting to sexual harassment regardless of whether it is found to constitute only a single act. The next issue to determine is whether the evidence is capable of establishing the necessary nexus between the discriminatory conduct and the provision of services to the complainant within the meaning s.33(1) (b). In Evans v Lee & Anor, the complainant was a businesswoman who had been subjected to a number of unwelcome advances from a Branch Manager of the Commonwealth Bank. The events complained of spanned a three year period, during which time the Commonwealth Sex Discrimination Act was amended to expressly proscribe sexual harassment. The relevant provisions, which are found in ss 28A and 28G of the Commonwealth Act, did not come into force until 13 January 1993. Only one of the incidents in question occurred after this time. In respect of the incidents which occurred prior to 13 January 1993, the complainant relied on s.22 of the Commonwealth Act. Section 22(1)(a) and (b) of that Act are worded in similar, although not identical, terms to s.33(1)(a) and (b) of the NSW Act. However, only the Commonwealth Act has an additional provision proscribing discrimination on the ground of sex in the manner in which goods or services are provided: see s. 22(1)(c). In relation to the incidents prior to 13 January 1993, the Commission expressly found that in persuading the complainant to submit to massage, and in each of his uninvited and unwelcome attendances at her home, the Bank Manager's conduct constituted unlawful sex discrimination, pursuant to s.22, as it was related to the manner in which banking services had been provided to the complainant. In doing so, the Commission appears to have found that the conduct contravened s.22(1)(c) but not s.22(1)(a) or (b). By way of contrast, however, the Commission found that in relation to the July 1993 incident when the complainant's rejection of the Manager's request to pose nude for his photography resulted in a change of attitude to her account, the discrimination took on a more direct character wherein the conditions upon which banking services were provided were changed: see EOC at p.79,054. I infer from this finding and the Commission's comment, at EOC p. 79,055, that the same conduct can constitute both discrimination and sexual harassment, that the conduct in question was found to have contravened both s.22(1) (b) and s.28G of the Commonwealth Act. In relation to the conduct prior to July 1993, the Commission observed that the complainant received favoured treatment in her banking arrangements. Consequently, until the July 1993 incident, discrimination for the purposes of s.22 was not found in any refusal to provide banking services or in the terms or conditions upon which the services were provided up to that date. Had the Commonwealth Act contained only s.22(1)(a) and (b), and not (c), it is questionable whether the Commission would still have made a finding of unlawful sex discrimination pursuant to s.22. Similarly, if there had been no change in attitude to the Complainant's bank account following the July 1993 incident, it is questionable whether the Commission would have found that the Complainant had established the nexus between the sexual harassment and the provision of banking services. However, the facts of that case are quite different from those in the present. The Complainant alleges that the sexual harassment occurred while she was actually using the facilities of the Club. Whether the relevant services are defined as either the facilities of the Club, or entertainment, recreation or refreshment, in my view the evidence is capable of establishing that they were provided to her on the implied term that she be subjected to the conduct specified in paragraph 6(c) of the Points of Claim. The First Respondent seeks to avoid liability by denying that it is liable for the acts of the Second Respondent in the circumstances alleged by the Complainant. It is the Complainant's case that the President was acting in his capacity as an agent of the Club and, therefore, that the Club is vicariously liable by virtue of the operation of s.53 of the Act. The Second Respondent's liability arises by virtue of the operation of s.52 of the Act. Relevantly, s.53(1) provides that an Act done by a person as the agent of the person's principal which if done by the principal would be a contravention of the Act, is taken to have been done by the principal also unless the principal did not, either before or after the doing of the act, authorise the agent, either expressly or by implication, to do the act. Section 52 provides: "It is unlawful for a person to cause, instruct, induce, aid, or permit another person to do an act that is unlawful by reason of a provision of this Act." In my view, whether the President was the Club's agent and, if so, whether the Club can escape liability by establishing that it did not authorise the President's conduct are matters which can only be determined after all the evidence has been presented, in both chief and cross-examination. For example, in Dennison & Anor v Conroy (1990) EOC 92-312, this Tribunal, differently constituted, found after hearing all the evidence, that the licensee of a country hotel was not vicariously liable for the acts of the hotel's barman in charging Aborigines a surcharge of $1 per drink. Having determined that the evidence is capable of contravening s.33(1)(b), it is, in my view, also capable of contravening s.32(1)(b). Accordingly, I grant the Complainant's application and direct that the Points of Claim be amended in accordance with the proposed amendments. 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