A -V- Mayhew Trading As Bangor Video

Equal Opportunity Tribunal of New South Wales CITATION: A -V- Mayhew Trading As Bangor Video [1998] NSWEOT COMPLAINANT: A RESPONDENT: Mayhew trading as Bangor Video NUMBER: 99 of 1998 TRIBUNAL: Prof N Rees ( Judicial Member ) Ms L Mooney Mrs J Strickland GROUNDS OF COMPLAINT: DATES OF HEARING: 09/14/1998 DATE OF JUDGMENT: 09/14/1998 LEGAL REPRESENTATIVES: Complainant: Mr D Hillard, Clayton Utz Respondent: Self Represented JUDGMENT IN FAVOUR OF: Complainant CHAIRPERSON: The Complainant has a lodged a complaint of sexual harassment against her former employer, Mr Stuart Mayhew trading as Bangor Video. The complaint falls within section 22B (1) of the Anti Discrimination Act 1977 . The Complainant alleges that a course of behaviour which constituted sexual harassment commenced in August 1997 and continued until 19 January 1998 when the Complainant, through her mother, resigned from her employment with the Respondent. We note that the Complainant's mother, who was also employed by the respondent at his video shop, resigned on the same day. The Complainant alleges that from August 1997 until she ceased her employment, a number of conversations which were initiated by the Respondent involved unwelcome conduct of a sexual nature. These conversations ranged from suggestions of the offer of a birthday and Christmas kiss to various comments concerning whether the Complainant had forgotten to put on her underpants and to what colour underpants she was wearing. In general terms there is no dispute between the parties that these conversations took place. The point in issue is the construction that should be put on them. The Respondent says that they were nothing more than light hearted banter. The Complainant alleges that they constituted unwelcome conduct of a sexual nature. Sexual harassment is defined in section 22A of the Act: “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.” The section makes it quite clear that the intent of the Respondent is not relevant. The Act establishes an objective test. Would a reasonable person have anticipated that the other would be offended, humiliated or intimidated by unwelcome conduct of a sexual nature? In the context of this case we answer that question in the affirmative. It is our finding that a reasonable person having regard to the disparity in ages and positions of the parties would have anticipated that the complainant would be offended, humiliated and intimidated by the Respondent’s unwelcome conduct of a sexual nature. We find that the Complainant found the comments of the Respondent to be unwelcome and that they constituted conduct of a sexual nature. The most serious allegation by the Complainant involves requests for sexual favours. The Complainant says that a number of conversations took place in January 1998 during which the Respondent made requests for sexual favours. The Respondent denies those conversations. We prefer the evidence of the Complainant and we are satisfied on the balance of probabilities that the Respondent did make a number of requests for sexual favours in January 1998. In reaching this conclusion we consider it relevant that both the Complainant and her mother resigned from the Respondent's employ shortly after the date upon which it is stated that these conversations took place. We also consider it relevant that the Complainant has consistently told the same story since she resigned from the Respondent's employ and that we found her an impressive witness today. We agree with Mr Hillard that the Respondent has sought, on various occasions, to put a different gloss or construction on some of his comments and actions and we find that the Respondent was often not a forthright witness when asked direct questions about particular events. Consequently we find that the Complainant was sexually harassed by the Respondent during the period from August 1997 to January 1998 and we find that the Complainant left her employment with the Respondent as a result of that harassment. Accordingly, we find her complaint substantiated. We turn to the issue of relief. The Complainant seeks special damages for loss of income from the date she resigned until the date of today's hearing. We have calculated her total loss of wages to be $2,873. We calculate this figure as follows: thirty-four weeks have elapsed since the time the Complainant left the Respondent's employ and the date of today's hearing. During that period there has been six weeks of school holidays and twenty-eight weeks of school term. Taking the mid point of the Complainant's evidence, we have allowed twenty hours per week during the six weeks of school holidays at $6.50 per hour which gives a figure of $780; for the twenty-eight weeks during school term, the mid point on her evidence is 11.5 hours per week at $6.50 per hour, giving a figure of $2,093, with the total loss of wages being $2,873. Turning to general damages, the Complainant seeks damages for loss of future income, distress, insult and injury to feelings. We note the Complainant's evidence that she planned to continue in her employment with the respondent until the end of this year. Bearing in mind the previous decisions of this Tribunal in similar matters and decisions of other similarly placed Tribunals in different jurisdictions, we find the sum of $5,000 is an appropriate figure for general damages. Orders The Tribunal finds the complaint substantiated and makes the following orders: 1. Within 28 days the Respondent is to pay the Complainant damages in the sum of $7,873. 2. Within 7 days the Respondent is to sign and return to the Complainant a typed version of the reference for the Complainant which has already been provided by him in handwritten form. 3. Within 6 months the Respondent is to attend a seminar by the Anti-Discrimination Board on sexual harassment prevention and he is to seek the advice and assistance of the Board in the drafting and implementation of an anti-sexual harassment policy if so recommended by the President of the Board. 4. Both parties are given liberty to apply to the Tribunal for further directions or orders concerning the implementation of these orders on 7 days notice to the other party. 5. No order as to costs. 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.