Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Steel v Director General, NSW Department of Premier and Cabinet [2012] NSWADT 82 Hearing dates: 5 March 2012 Decision date: 02 May 2012 Jurisdiction: Equal Opportunity Division Before: Magistrate N Hennessy, Deputy President Decision: Leave for the applicant's complaint of sexual harassment to proceed is refused. Catchwords: LEAVE - complaint of sexual harassment - whether conduct of sexual nature Legislation Cited: Anti-Discrimination Act 1977 Administrative Decisions Tribunal Act 1997 Cases Cited: Jones and Anor v Ekermawi [2009] NSWCA 388 Haddon v Forsyth [2011] NSWSC 123 Coleman -v- Bentley [2002] NSWADT 87 Texts Cited: Australian Human Rights Commission, Effectively preventing and responding to sexual harassment: A Code of Practice for Employers, AHRC, Sydney, 2008. Category: Interlocutory applications Parties: John Steel (Applicant) Peter Tibbitts (First Respondent) Director General, NSW Department of Premier and Cabinet (Second Respondent) Representation: Counsel L Wilson (1st and 2nd Respondents) J Steel (Applicant in person) Crown Solicitor's Office (1st and 2nd respondents) File Number(s): 121019 REasons for decision Introduction 1Mr Steel complained to the President of the Anti-Discrimination Board that his supervisor, Mr Tibbitts, had sexually harassed him in breach of the Anti-Discrimination Act 1977 (AD Act). The President declined the complaint as lacking in substance. Mr Steel has applied to the Tribunal for permission for his complaint to proceed: AD Act, s 96. The Tribunal has a discretion to grant or refuse leave for the complaint to go ahead and will be guided by what is fair and just in the circumstances: Jones and Anor v Ekermawi [2009] NSWCA 388. When deciding whether to grant leave, the Tribunal may have regard to the grounds on which the President may decline a complaint under s 92(1) of the AD Act, including that the complaint lacks substance. 2In order to assess whether the complaint should proceed I need to examine both the factual and legal basis for the complaint. Factual basis for the complaint 3The applicant was employed by the Department of Premier and Cabinet. He complained to the Anti-Discrimination Board that his immediate supervisor, Mr Tibbitts, had sexually harassed him. In his complaint he said Mr Tibbitts called him in to a meeting and shut the door. Mr Tibbitts is then alleged to have said words to the following effect: I've walked around the floor here and spoke (sic) to a couple of people to get their opinions and perceptions of you. The feedback that I got was that you are fitting in well with your team, but that you seem a little too friendly with [Mr Z], backslapping, having a laugh, that the two of you go out for coffees in the morning. The impression is that maybe [Mr Z] is an influence on you, or that he may be intimidating you because he is a big bloke, and you need to be careful on how this is perceived in what other people may say. I had to chip [Mr X] the other day because he was going out for coffees with [Ms Y] and that people had started to talk about this. 4I accept, for the purposes of this complaint, that Mr Tibbitts said words to that effect. Mr Steel understood from this conversation that Mr Tibbitts was suggesting that other employees thought that Mr X and Ms Y were in a sexual relationship and that, similarly, people may think that he and Mr Z were in a homosexual relationship. Mr Steel says that he is happily married and has two children. 5Mr Steel acknowledged that Mr Tibbitts did not say directly that people would think that he and Mr Z were in a homosexual relationship. However, that was the imputation he drew from the fact that Mr Tibbitts mentioned Mr X and Ms Y. Another reason Mr Steel assumed that that was the imputation was that Mr Tibbitts closed the door before speaking to him. He said that if Mr Tibbitts was concerned that he was playing favourites he would have said something to that effect rather than mentioning Mr X and Ms Y. 6Mr Tibbitts denies that he engaged in any conduct of a sexual nature towards Mr Steel. 7The lawyer representing Mr Tibbitts and the Department suggested that the reason Mr Tibbitts closed the door was that he was providing Mr Steel with confidential feedback and he did not wish to be interrupted or overheard. In relation to the reference to Mr X and Ms Y, it was submitted that they were not in a relationship and they were merely mentioned as a round about way of making Mr Tibbitts aware of the inappropriateness of his own conduct. This was 'evidence from the bar table' and cannot be taken into account for the purposes of these proceedings. 8If this matter were to proceed to hearing, the Tribunal would have to make a finding as to the imputations, if any, that Mr Tibbitts' comments conveyed. In my view, even assuming that Mr X and Ms Y were in a relationship, the imputation does not arise that Mr Tibbitts was suggesting that Mr Steel and Mr Z were in a homosexual relationship. If, a Tribunal were to conclude that no such imputation arose, the complaint would fail at the outset. In my view, the complaint lacks merit for this reason. Legal basis for the complaint 9Assuming that the imputation suggested by Mr Steel was found to arise, the question for the Tribunal would be whether the conduct amounts to sexual harassment. 10It is unlawful for an employee to sexually harass a fellow employee: AD Act, s 22B(2). Sexual harassment is defined in s 22A: For the purposes of this Part, a person sexually harasses another person if: (a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the other person, or (b) the person engages in other unwelcome conduct of a sexual nature in relation to the other person, in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated. 11This provision makes an alleged perpetrator, such as Mr Tibbitts, personally liable for his conduct. Subject to some qualifications, Mr Tibbitts' employer, the Director General, NSW Department of Premier and Cabinet is vicariously liable for the conduct of its employees: AD Act, ss 52 and 4B. 12In order to substantiate his complaint against Mr Tibbitts, Mr Steel would have to prove that: (1)the alleged conduct was conduct of a sexual nature in relation to him (2)the alleged conduct was unwelcome (3)a reasonable person in all the circumstances would have anticipated that Mr Steel would be offended, humiliated or intimidated. 13We accept, for the purpose of these proceedings that if the imputation arises, the alleged conduct was unwelcome. If this matter were to proceed to hearing and the Tribunal found that the imputation alleged by Mr Steel arises, the two main issues would be whether the alleged conduct comes within the definition of "conduct of a sexual nature" and, if so, whether "a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated." Conduct of a sexual nature 14Mr Steel did not allege that Mr Tibbitts made an unwelcome sexual advance or an unwelcome request for sexual favours. In order to amount to sexual harassment, the alleged conduct must amount to "other unwelcome conduct of a sexual nature in relation to" Mr Steel. 15Simpson J discussed the meaning of the phrase "conduct of a sexual nature" as it appears in s 22A(b) when determining whether certain imputations constituted sexual harassment in a defamation case: Haddon v Forsyth [2011] NSWSC 123 (8 March 2011) at [247]-[250]: Conduct that may be sexual harassment to one recipient may be perfectly acceptable to another. The concept includes elements of value judgments: sexual harassment is undoubtedly a pejorative term, but, like all concepts involving value judgments, there is no universal agreement that identifies a boundary beyond which conduct falls within that description. Moreover, conduct of a particular kind, that, if performed once only, or on a limited number of occasions, may not qualify as sexual harassment, may well do so if persisted in and repeated. . . The context in which the conduct is engaged in may have significance, as may the identity or status of the participants: for example, conduct by an employer towards an employee, or otherwise by a person in a position of power, may amount to sexual harassment, where similar conduct towards an equal may not. Conduct which of itself contains no obvious sexual element may take on a different complexion when regard is had to other conduct on the part of the perpetrator - that is, an associated sexual connotation may cast light on the motivation for the conduct. There is also a question concerning the intention or knowledge of the person said to engage in sexual harassment. On the one hand, a perpetrator who is wholly unconscious that his/her behaviour is unwelcome or even offensive, may well feel aggrieved that the behaviour is held to amount to sexual harassment; on the other hand, it is immaterial to the recipient of such conduct that the perpetrator is insensitive to its impact. In my opinion, intention is irrelevant. It is frequently a hallmark of sexual harassment that the perpetrator is quite unconscious of the adverse impact the conduct has. 16The Australian Human Rights Commission has produced a document entitled, "Effectively preventing and responding to sexual harassment: A Code of Practice for Employers", 2008 edition. That publication states at p 11, that sexual harassment can take various forms, including (1)unwelcome touching, hugging or kissing (2)staring or leering (3)suggestive comments or jokes (4)sexually explicit pictures, screen savers or posters (5)unwanted invitations to go out on dates or requests for sex (6)intrusive questions about an employee's private life or body (7)unnecessary familiarity, such as deliberately brushing up against someone (8)insults or taunts of a sexual nature (9)sexually explicit emails or SMS messages (10)accessing sexually explicit internet sites (11)behaviour which would also be an offence under the criminal law, such as physical assault, indecent exposure, sexual assault, stalking or obscene communications. 17While these examples are not exhaustive of the kind of conduct that could amount to sexual harassment, they all fall comfortably within the concept of conduct of an objectively sexual nature. 18An imputation that a person is in a homosexual relationship with a fellow employee, in the present context, is unlikely to meet that test. The conduct is not objectively sexual. Even though the alleged imputation relates to the nature of the relationship, namely that it is a homosexual relationship, that does not make the conduct itself conduct of a sexual nature. 19The conduct occurred on only one occasion and there was no other conduct which could have given the alleged conduct a sexual meaning. Mr Tibbitts was Mr Steel's supervisor and thus in a position of power but the purpose of the meeting appears to have been a genuine one, that is to warn Mr Steel as to how his conduct in the workplace may be perceived. In all the circumstances, and recognising that a value judgement is required, a Tribunal hearing this case would be highly unlikely to conclude that the conduct was conduct of a sexual nature. Reasonable person test 20The reasonable person test is an objective test which asks whether, if a 'reasonable person' who was aware of all the circumstances, would have anticipated that Mr Steel would be offended, humiliated or intimidated by the conduct. The circumstances in this case include that the alleged conduct was a single act that took place in the context of a private meeting with Mr Steel's direct supervisor. The comments related directly to Mr Steel's conduct in the workplace. They were not comments about his personal or private life. These factors are similar to those already discussed above. 21In my view, if leave were granted a Tribunal hearing this case would find that the reasonable person test had not been met. Vicarious liability of employer 22As the complaint against Mr Tibbitts lacks merit, there is similarly no merit in the complaint against his employer. Order Leave for the applicant's complaint of sexual harassment to proceed is refused. I hereby certify that this is a true and accurate record of the reasons for decision of the Administrative Decisions Tribunal. Registrar ********** 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. Decision last updated: 02 May 2012