Bell v State of Queensland & Anor (No 1) [2014] QCAT 297

CITATION: Bell v State of Queensland & Anor (No 1) [2014] QCAT 297 PARTIES: Karen Bell (Applicant) v State of Queensland (First Respondent) And Lindy Ralph (Second Respondent) APPLICATION NUMBER: ADL099-12 MATTER TYPE: Anti-discrimination matters HEARING DATE: 30 September 2013; 1 - 3 and 25 October 2013 HEARD AT: Brisbane DECISION OF: Member Fitzpatrick DELIVERED ON: 6 March 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. The First Respondent Queensland Health and the Second Respondent Lindy Ralph pay to the Applicant Karen Bell, the sum of $9,000.00 within 28 days of the date of this Order; 2. The Applicant to file and serve submissions in relation to costs by 18 March, 2014; 3. The First and Second Respondents to file and serve submissions in relation to costs by 31 March, 2014; 4. The Applicant to file and serve any submissions in reply by 7 April, 2014. CATCHWORDS: Anti-Discrimination – sexual harassment – joint and several liability – assessment of compensation – causation - adjustment of compensation because loss and damage caused by factors other than contravention of the Anti-Discrimination Act 1991 (Qld). -- 1 of 21 -- 2 Anti-Discrimination Act 1991 (Qld) ss 118, 119, 209 ACN 070 037 599 P/L & Anor v Larvik P/L & Anor [2008] QCA 416 Barney v State of Queensland & Anor [2012] QCAT 695 Essa v Laing Ltd [2004] IRLR 313 Gama v Qantas Airways (No.2) [2008] FCAFC 69 Haines v Bendall [1991] HCA 15 Hall v Sheiban (1989) 20 FCR 217 Henville v Walker (2001) 206 CLR 459 McCauley v Club Resort Holdings Pty Ltd (no.2) [2013] QCAT 243 Nunan v Aaction Traffic Services Pty Ltd [2013] QCAT 565 O’Neill v Steiler [1994] QADT 2 State of Queensland & Anor v Barney [2013] QCATA 104 Travel Compensation Fund v Tambree [2005] HCA 69 Williams v Robinson & Anor (2000) EOC 93-112 APPEARANCES and REPRESENTATION (if any): APPLICANT: Karen Bell represented by Mr D Pratt of Counsel, instructed by Ms N Strijland of NR Barbi Solicitor Pty Ltd. RESPONDENTS: State of Queensland and Lindy Ralph represented by Mr C J Murdoch of Counsel, instructed by Ms R Corones of Crown Law. REASONS FOR DECISION The Claim [1] The applicant, Mrs Bell, was employed by Queensland Health’s Metro North Hospital and Health Service, in the role of Supervisor Food and Retail Services at Connect Café on the campus of the Royal Brisbane and Women’s Hospital. [2] The First Respondent, Ms Ralph was employed by Queensland Health in the role of Food and Retail Area Coordinator, being responsible for managing the resources and activities of multiple retail outlets at the hospital, including Connect Café. At all relevant times Ms Ralph was Mrs Bell’s line manager. -- 2 of 21 -- 3 [3] Mrs Bell alleges that she has been subjected to four incidents of sexual harassment by Ms Ralph, in breach of section 118 of the Anti- Discrimination Act 1991, as follows. (a) On 8 December, 2011 at a work related social function at the Stamford Plaza hotel in Brisbane:  Ms Ralph said to the applicant on several occasions words to the effect of “I’m not wearing any undies”; and  whilst Mrs Bell drove her car from the function back to the workplace, Ms Ralph, being a passenger in Mrs Bell’s car at the time, said to Mrs Bell words to the effect of “I’m sitting in your leather seats with no undies on”. (b) On 17 December, 2011 at a work related social function at the Paddington Tavern, Brisbane:  Ms Ralph said to Mrs Bell that she thought Mrs Bell’s breasts were nice and that she wished she had breasts like those of Mrs Bell, said that she did not like her own breasts and lifted her shirt to expose her breasts (in a bra) to Mrs Bell; and  Ms Ralph on several occasions asked Mrs Bell if she would join in with her and another female work colleague in a “threesome”. Ms Ralph said that she wanted to “experiment with people she knew”. [4] Mrs Bell asserts that during early 2012 she was subjected to aggressive and abusive management by Ms Ralph, which resulted in her seeking an alternative lower classification role and then leaving Queensland Health’s employment. Combined with the incidents of sexual harassment at the Paddington Tavern, it is said that Ms Ralph’s management of her resulted in a psychological injury. The changed management style imposed on her by Ms Ralph is said to be evidence of the sexual harassment complained of because it was tantamount to punishment for failing to accept her alleged request for sex. [5] Mrs Bell claims compensation for hurt and humiliation arising out of the alleged sexual harassment, including for a psychological injury arising from the alleged sexual harassment. Mrs Bell contends that the effect of the sexual harassment was compounded by Queensland Health’s failings in dealing with the complaint made by her. [6] Mrs Bell asserts that Queensland Health took no steps to prevent its employee Ms Ralph contravening the Anti-Discrimination Act and that in accordance with section 133 it is vicariously liable for Ms Ralph’s contravention of the Act. -- 3 of 21 -- 4 [7] Queensland Health confirmed at the hearing it accepts that if the events occurred as alleged, then they occurred during work related events. It agreed that if Ms Ralph is found to have contravened section 118 of the Act, then the same finding may be made against Queensland Health, under section 133 of the Act. Legal Framework [8] Section 118 of the Act provides that: “a person must not sexually harass another person”. [9] Section 119 of the Act provides that: “sexual harassment happens if a person- (a) subjects another person to an unsolicited act of physical intimacy; or (b) makes an unsolicited demand or request (whether directly or by implication) for sexual favours from the other person; or (c) makes a remark with sexual connotations relating to the other person; or (d) engages in any other unwelcome conduct of a sexual nature in relation to the other person; and the person engaging in the conduct described in paragraphs (a),(b),(c) or (d) does so- (e) with the intention of offending, humiliating or intimidating the other person; or (f) in circumstances where a reasonable person would have anticipated the possibility that the other person would be offended, humiliated or intimidated by the conduct.” [10] Section 120 provides that: “the circumstances that are relevant in determining whether a reasonable person would have anticipated the possibility that the other person would be offended, humiliated or intimidated by the conduct include – (a) the sex of the other person; and (b) the age of the other person; and (c) the race of the other person; and (d) any impairment that the other person has; and (e) the relationship between the other person and the person engaging in the conduct; and (f) any other circumstance of the other person.” -- 4 of 21 -- 5 The evidence and findings [11] Although a number of witnesses were called to give evidence of their experience of Ms Ralph, in terms of her alleged propensity to speak crudely of sexual matters and her alleged harsh management style, I have not accorded weight to the evidence of witnesses unless they made direct observations of the matters in question. The witness evidence I consider relevant is referred to in the decision. Events on 8 December, 2011 [12] Ms Ralph admits that whilst in the company of a group of women she responded to a question as to whether she could wear underwear under her dress, to which she responded that she could not. [13] The evidence of Ms Ralph and another employee in the group at the time, Ms Murray, is that the discussion was light hearted and made in a group context. [14] Mrs Bell says that Ms Ralph initiated the topic and kept referring to it during the day. She says that she did not find the conversation funny. [15] I accept Mrs Bell’s version of events. It is substantiated by Ms Murray’s statement which sets out a transcript of relevant parts of the conversation and reveals that Ms Ralph volunteered the information about not wearing underwear in the context of a discussion about dresses and underwear. [16] Ms Ralph admitted during cross examination that during the car ride back to work from the function there was discussion about her lack of underwear, although it is disputed between the parties as to whether Mrs Bell or Ms Ralph initiated the comments. As to the other occupants of the car, Mr Bambry does not recall the comment and Ms Robinson suggests Mrs Bell raised the matter in a joking way. In the context of people carrying out a conversation while packing presents in the boot of a car and seating themselves, it is not unusual that people would hear different parts of conversations and that differing versions emerge. I am satisfied at least, based on her own evidence that there was discussion participated in by Ms Ralph as to her lack of underwear. [17] It was submitted on behalf of Ms Ralph that even if Mrs Bell’s version is accepted, the comments lack the necessary sexual connotation to amount to sexual harassment. I accept that submission. I reject the submissions made by Mrs Bell that the remarks had sexual connotations and were made to her and that they constituted unwelcome conduct of a sexual nature toward her. I find that the remarks were light hearted and intended to be humorous. [18] The comments were made in group discussions. The comments made did not relate to Mrs Bell as contemplated by section 119(c) of the Act nor was the conduct in relation to Mrs Bell as contemplated by section 119(d) -- 5 of 21 -- 6 of the Act. I do not think the remarks had sexual connotations. I do not think Ms Ralph’s conduct had the character of conduct of a sexual nature. [19] Although I accept that Mrs Bell was offended by the remarks, I am unable to find on the evidence that Ms Ralph had “the intention of offending, humiliating or intimidating” her or that a reasonable person would have anticipated the possibility that Mrs Bell would be offended, humiliated or intimidated by the conduct. In this regard I note that Mrs Bell is a mature person, who was in the company of workmates and friends at a social event at the time the comments were made. These factors diminish the prospect that one would expect Mrs Bell to feel offensive, humiliating or intimidatory remarks had been made which related to her. Events on 17 December, 2011 First Incident [20] Ms Ralph admits that she participated in a discussion with Mrs Bell in relation to breasts in the context of a discussion about cosmetic surgery. However, she denies completely making the comments attributed to her or lifting her shirt to reveal her breasts. [21] Apart from Mrs Bell and her husband, no other witness gave evidence that they heard the comments or that they saw Ms Ralph lift her shirt. [22] Mrs Bell was unshakeable in her evidence as to the comments made and the conduct of Ms Ralph. Her evidence was corroborated by her husband Mr Bell who heard the comments and saw Ms Ralph lift her shirt. [23] Ms Robinson, Retail Supervisor, Metro Café, was present at the Christmas party at the Paddington Tavern. Ms Robinson is also referred to in the evidence as Ms Mel Patterson, her name before her marriage. Her evidence is that she did not hear the comments attributed to Ms Ralph and that Ms Ralph did not lift her shirt. In cross examination she agreed that she moved around the gathering and was not always in the group which included Ms Ralph and Mr and Mrs Bell. When cross examined as to the basis of her belief that Ms Ralph had not raised her shirt she said that if it had occurred she believed Ms Ralph would have been “chucked out”. On the basis that Ms Robinson was not present during all the conversation between the parties and she had no direct knowledge of whether Ms Ralph had lifted her shirt, just a belief that she must not have, I do not consider Ms Robinson’s evidence undermines the credibility of Mr and Mrs Bell. [24] The other witness relevant to these complaints is Mr Bambry, who at the relevant time was Manager of Food and Retail Services. Mr Bambry was present in the group with the Bells and Ms Ralph. Mr and Mrs Bell allege Mr Bambry responded to Ms Ralph’s conduct by saying to Mr Bell words to the effect: “Don’t worry about Lindy, she is always like this, it’s common for her to act like this”. Mr Bambry denies he said this. In cross examination he moved from a complete denial that the shirt lifting incident -- 6 of 21 -- 7 occurred to an acknowledgment it is possible that it occurred. He acknowledged that he should have said in his statement of evidence that he had no recollection of Ms Ralph lifting her shirt to expose her breasts, rather than that it did not happen. Mr Bambry said he had no recall of a discussion about cosmetic surgery. Given Mr Bambry’s lack of clarity and lack of recall, I do not consider his evidence undermines the credibility of Mrs and Mr Bell. Findings [25] I am satisfied that the remarks complained of were made and the conduct occurred as alleged by Mrs Bell. I found her to be a straightforward witness with a clear and unshakeable recollection. Her recollection is corroborated by her husband who was present when the conversation and conduct took place. Mr Bell is a Chief Petty Officer Electronics Technician who has been a naval non-commissioned officer for 24 years. I found Mr Bell to be an honest witness who was clear about his recollection of Ms Ralph’s comments and conduct. It was submitted by counsel for the respondents that I should disbelieve all of Mr Bell’s evidence because he gave a time estimate of 30 seconds in relation to the time Ms Ralph’s shirt was lifted. It was said that this was completely unrealistic. Estimation of the time an event takes to unfold is notoriously hard to undertake, especially if the event occurred some years ago and taking into account the emotional response a person has to the event. I do not think the time the event took is as relevant as the fact that it occurred. I prefer the evidence of Mr and Mrs Bell to that of Ms Ralph. [26] Despite this finding I am nevertheless not satisfied that the comments had sexual connotations nor that the conduct was of a sexual nature. I am not satisfied that Ms Ralph intended to offend, humiliate or intimidate Mrs Bell by her remarks and conduct. I do not think a reasonable person would anticipate the possibility that Mrs Bell would be offended, humiliated or intimidated by the remarks and conduct, especially as they occurred in the context of a discussion about cosmetic surgery. Second Incident [27] In relation to the remaining allegation, Ms Ralph denies that she said she would like a “threesome” with Mrs Bell and another colleague Ms Robinson or that she said she would like to experiment with people she knew. [28] Mrs Bell asserts that these comments were made to her by Ms Ralph and that Mr Bambry said words to the effect: “I’d like to see that”. She says that she called Ms Robinson over to the group to tell her what had been said and that Ms Robinson said words to the effect: “Yuck, that’s disgusting. I’m not interested.” Mrs Bell says that she made it clear to Ms Ralph that she was not interested and that the suggestion was not welcome. Mr Bell confirmed that he heard this conversation. -- 7 of 21 -- 8 [29] Ms Robinson denies hearing the alleged comments. She denies participating in a conversation with Mrs Bell as asserted by Mrs Bell and denies the comments attributed to her. I found Ms Robinson to be somewhat hostile and resentful in the way in which she gave her evidence. I formed the view that she did not wish to be involved in the matter. I prefer the evidence of Mrs and Mr Bell to that of Ms Robinson. [30] Mr Bambry denies making the statement attributed to him. His evidence is that he has no recollection of the statements allegedly made by Ms Ralph. Given his lack of recollection, I prefer the evidence of Mrs and Mr Bell. Findings [31] I find that Ms Ralph did make the comments complained about by Mrs Bell. I make that finding because Mrs Bell’s evidence in relation to the comments was consistent and clearly given. She was unshakeable under cross examination. The evidence was corroborated by Mr Bell who was present at all times during the events complained about. I am satisfied on the balance of probability that the comments were made. [32] I reject the submissions of Queensland Health and Ms Ralph that Mrs Bell’s allegations are not credible because no formal complaint of sexual harassment was made by Mrs Bell until 21 May, 2012 and no mention was made of sexual harassment when taking sick leave on 29 March, 2012. I consider the facts exist in terms of Mrs Bell’s own evidence and the direct observations by Mr Bell to find the incident of sexual harassment occurred. I think the delay in reporting the sexual harassment is explicable because its significance was only revealed later when the anxiety caused by the incident was inflamed by Ms Ralph’s conduct in early 2012. This issue is explored more fully later in this decision, with particular reference to the expert medical opinion as to the significance of the incident of sexual harassment. [33] I accept Mrs Bell’s evidence that she was offended and made to feel very uncomfortable by the conversation. Given the highly sexual nature of the comments, I find that a reasonable person would anticipate that a person to whom the comments were made would be offended, humiliated or intimidated. I am satisfied that sexual harassment under section 119 (b) and (c) of the Act has occurred. [34] Counsel for Ms Ralph acknowledged in final submissions that if I find the remarks about a “threesome” were made then it amounts to sexual harassment under section 119 of the Act. Management of Mrs Bell’s work and the investigation into her complaints [35] A good deal of evidence at the hearing related to Ms Ralph’s alleged bullying of Mrs Bell in relation to her work performance and in relation to Queensland Health’s investigation of Mrs Bell’s complaints. -- 8 of 21 -- 9 [36] Mrs Bell contends that Ms Ralph bullied and publicly belittled her in response to her rejection of Ms Ralph’s sexual advances and made the working situation intolerable for her. [37] Her evidence is that from early 2012 she was constantly (daily) abused by Ms Ralph. She said that the incidents included publicly and openly: (a) ridiculing her as to how other outlets do better; (b) aggressively stating that we don’t make enough money in Connect Café; (c) saying in front of other staff that she has no direction; (d) saying that staff have cushy jobs at Connect Café (e) saying that staff need to move faster; (f) saying that staff do “everything” wrong; (g) saying that staff “do nothing at Connect”; (h) ridiculing her by saying that “other Supervisors get the job done”; (i) threatening her that her staff would lose their contracts and they would not be renewed; (j) verbally abusing and yelling at her or her staff in the back of the café; (k) threatening her that her staff would lose work hours if they had a sick day; (l) saying inappropriate or offensive sexual comments about her sex life in the workplace; (m) telling her that she was going to be extra tough on her son in managing his work at the Subway which Ms Ralph was managing; (n) one day in early 2012 Ms Ralph abused and swore at her in the front area of the café near the coffee machine in front of a customer who later commented “She should be sacked for speaking to you like that.” [38] Mrs Bell’s evidence was corroborated by Ms Knight who worked in Connect café with her at the relevant times. Her evidence was that Ms Ralph was unnecessarily aggressive to her and to Mrs Bell and that she yelled and was abusive on numerous occasions. She observed this conduct escalate during early 2012 in relation to Mrs Bell, including yelling at her in front of customers. She said that she was reduced to tears by the conduct and she observed Mrs Bell reduced to tears. She said that after Mrs Bell made her complaint about Ms Ralph, Ms Ralph’s conduct changed, her criticisms stopped and her yelling and swearing stopped. I found Ms Knight to be an honest witness who gave clear evidence, not shaken in cross examination. -- 9 of 21 -- 10 [39] It was submitted that I should accept the evidence of Ms Wollenwebber, a staff member working at Connect Café that Ms Ralph did not yell at Mrs Bell, including in front of customers. I find that Ms Wollenwebber could give no direct evidence of the conduct complained of by Mrs Bell. Ms Wollenwebber did not see the conduct. Ms Knight could however speak of her direct observation of the events complained of. [40] Ms Ralph denies that she engaged in the conduct alleged by Mrs Bell and Ms Knight. Ms Ralph’s evidence is that she had many discussions with her superiors in relation to Mrs Bell’s failings as a manager and that she had been instructed by Mr Sutor and Ms Ruatara to manage Mrs Bell more forcefully, including an indication from Mr Sutor that her employment should cease. Ms Ralph’s evidence is that this feedback was always in her mind and often made her speak more forcefully to Mrs Bell when giving performance related feedback and suggestions. She said that she thought more forceful management may make Mrs Bell “fall apart”. [41] Ms Ralph’s evidence is that Mrs Bell had a number of performance problems as a manager, including being unable to direct staff, not having a good relationship with suppliers, not following directions, being sullen and moody, not keeping up with computer work, not following procedures, not keeping up with trends for new menu items, not opening the café on time, negativity with respect to change, not discussing ideas or incentives with new staff, ignoring new suggestions for the café and complaining constantly about the quality of the staff and being rude to new staff. Mrs Ralph suggests that Mrs Bell raised the complaints against her in relation to sexual harassment and bullying to deflect attention from her performance issues. [42] Despite the range of complaints made by Ms Ralph, none of them were recorded in the Performance Appraisal and Development Plan Form which is completed as a result of an annual performance appraisal and which highlights areas for improvement and training required. The Form completed by Ms Ralph on 6 October, 2011, attached to Mrs Bell’s statement of evidence filed 13 September, 2013, suggests Mrs Bell is achieving all that is required of her. Mrs Ralph said that she was unaware of Queensland Health’s guidelines for managing unsatisfactory performance, its directive in relation to unsatisfactory performance and the Human Resources policy in relation to performance and development. These documents form exhibits 5,6 and 7 in the proceeding. [43] Despite describing serious issues in her evidence in chief, in cross examination about the failure to document the problems and to follow the prescribed performance management process, Ms Ralph suggested the issues were not serious and that she was able to manage them on a day to day basis. [44] The evidence and the submissions from Queensland Health and Ms Ralph appear to be conflicting. On the one hand Ms Ralph suggests that any performance problems were not so great that she could not manage them day by day without raising them in a performance appraisal, yet on -- 10 of 21 -- 11 the other hand it is suggested that Mrs Bell’s performance issues were so great that they were the cause of her psychological decompensation and that she was prepared to fabricate the allegations against Ms Bell in order to deflect attention from her poor performance. [45] I found Ms Ralph’s evidence in cross examination in relation to these issues unimpressive. I find it incredible that a manager of Ms Ralph’s seniority would not follow a proper performance management process as dictated by Queensland Health, if there were any serious performance issues. Likewise the evidence given by Ms Ruatara, Mr Bambry and Mr Sutor that Mrs Bell was not managing the café to the desired standard was never followed through in any formal process. [46] I prefer the evidence of Mrs Bell because it is supported by the evidence of Mrs Knight as to the harassing and bullying conduct of Ms Ralph. Ms Ralph herself acknowledges that she engaged in more “forceful” management of Mrs Bell from early 2012. I find that Ms Ralph did engage in harassing and bullying behaviour in relation to Mrs Bell during early 2012. [47] I reject the submission of Queensland Health and Ms Ralph that allegations of sexual harassment and bullying and harassment were fabricated to deflect attention from Mrs Bell’s alleged performance issues. I am unable to find on the evidence that Mrs Bell exhibited the performance problems alleged by Ms Ralph in her evidence in chief. In addition there is the evidence of Ms Knight of her direct observations of Ms Ralph’s bullying and harassing conduct in early 2012. [48] It was also put to Mrs Bell in cross examination that she had concocted her complaints against Ms Ralph out of bitterness as to the way she perceived her son to have been treated when he worked for Ms Ralph. Mrs Bell strenuously denied this was the case. I accept her evidence. I do not consider Matthew Bell’s employment to be relevant to the complaints made by Mrs Bell. Again there is direct evidence of Ms Ralph’s conduct on which I rely, rather than drawing the inference I am invited to draw that Mrs Bell fabricated her allegations and that they are without foundation. [49] Mrs Bell’s evidence is that by March the harassment from Ms Ralph had escalated and she was beginning to find working with her unbearable. She says that she was having headaches every day and vomiting before work at times. She says that her stress levels had reached a level that she could not control. [50] On 28 March, 2012 Mrs Bell made contact with Work Cover in relation to a claim. On 29 March, 2012 Ms Bell lodged a medical certificate with Ms Ruatara. [51] Mrs Bell complains that her request for a meeting with her employer to discuss the problem, made on 2 April, 2012, was ignored. -- 11 of 21 -- 12 [52] On 13 April, 2012 a 15 to 20 minute meeting was held between Mrs Bell, Ms Ralph and Ms Donna Ruatara, who at the time was Area Co-ordinator, responsible for retail outlets on the southside of the Hospital campus. Mrs Bell’s concerns were touched upon but not dealt with. Arrangements whilst Ms Ralph was to be on leave were principally discussed. At the end of that meeting Mrs Bell provided Ms Ruatara with a document she had prepared in relation to the problems confronted by the Connect Café headed “Connect Café Performance and Efficiency Review”. The document was not discussed. [53] On 17 April, 2012, Mrs Bell confided in Ms Ruatara in relation to her distress at the sexual harassment she was subjected to by Ms Ralph on 17 December, 2011. This was reported by Ms Ruatara to her superior, Mr Jurg Suter, who determined that without a complaint in writing nothing could be done. [54] In early May, 2012 Mrs Bell requested relocation to a position which did not involve working with Ms Ralph identifying that the bullying conduct of Ms Ralph had become intolerable. [55] On 7 May, 2012 Queensland Health agreed to a temporary movement of Ms Bell. She was placed at a lower level. [56] On 21 May, 2012, Mrs Bell completed and lodged with Queensland Health a “Staff Complaint Form” setting out allegations as to sexual harassment and bullying by Ms Ralph. [57] On 22 May, 2012 Mrs Bell met with Ms Beikoff, Workplace Relations Advisor and Mr Sutor, then Retail Co-ordinator. The process for investigation of the complaint was detailed in that meeting. [58] On 28 May, 2012 a Work Cover claim was lodged. On 16 July, 2012 Work Cover accepted the claim. All sick and holiday leave used up by Mrs Bell was reimbursed. [59] Mr Sutor conducted an investigation with the assistance of Ms Hannah Bloch, Manager Workplace Relations. The result of the investigation was provided to Mrs Bell on 27 August, 2012. Queensland Health concluded that there was no evidence of the sexual harassment complained of and declined to take the matter further. In relation to the allegation of workplace harassment, it concluded that Ms Ralph’s actions were reasonable management action, “especially considering basic functions” of Mrs Bell’s role “were not being completed to an appropriate standard.” It was concluded that there was insufficient evidence to substantiate the allegation that Mrs Bell was subject to workplace harassment. [60] Mrs Bell complains about the investigation conducted by Queensland Health. In particular she asserts that Mr Sutor was inexperienced as an investigator and did not bring any necessary impartiality to the investigation, as he worked closely with Ms Ralph. Mrs Bell thought Mr Sutor and Ms Ralph also had a social relationship. Mr Sutor admitted that -- 12 of 21 -- 13 this was the first investigation he had conducted. However, apart from being Ms Ralph’s superior and knowing her for many years, he denied any social relationship with her. [61] Mrs Bell points to a comment made by Mr Sutor to Ms Ralph, part way through the investigation, that Mrs Bell had made these complaints because “she had seen the writing on the wall”, being a reference to his perception that her performance was poor and that she would soon be subject to disciplinary action for poor performance. Mr Sutor admitted he made that comment and in cross examination agreed that it was probably not proper. He also said that he would not do an investigation like this again. [62] Mrs Bell also says that not all witnesses were interviewed in relation to her complaint, including Mr Bell. Mr Sutor agreed he had not received during the course of the investigation, Mr Bell’s statutory declaration made for Work Cover purposes and provided to Queensland Health. Nor was Mr Bell sought out for an interview. [63] It was submitted on behalf of Mrs Bell that the report concludes that the witnesses interviewed said that the conduct complained of did not occur, however, they in fact said they did not see the conduct. Mr Sutor agreed in cross examination that it was not quite right to conclude as he did that “Each witness denied the events occurred”. [64] Finally, Mr Sutor agreed in cross examination that at the time Mr Bambry was interviewed he did not know it was alleged that Mr Bambry said: “I’d like to see that”, with reference to the “threesome” comments complained about. [65] Ms Bloch who assisted Mr Sutor with the investigation, could give no explanation as to why Mr Bell’s statutory declaration was not referenced in the investigation. She agreed that she assumed the witnesses interviewed denied Ms Ralph’s conduct, when in fact they did not see the conduct. [66] Queensland Health sought a review of the Work Cover decision. Q Comp confirmed the original decision on 25 October, 2015 finding that Mrs Bell’s psychological injury arose out of stressors in the workplace. Q Comp did not deal with the allegation of sexual harassment, noting it was before the Anti-Discrimination Commission at that time. It found that whilst not perfect, the manner in which Mrs Bell’s complaint was managed fell within the ambit of reasonable management action. However, it found that Mrs Bell’s complaints of workplace bullying and harassment by Ms Ralph were substantiated and that this was consistent with unreasonable management action taken in an unreasonable way. Findings [67] I find that the way in which the investigation into Mrs Bell’s complaints was carried out was unsatisfactory. I find that Mrs Bell’s concerns in relation to -- 13 of 21 -- 14 the investigation are reasonable and that to a large extent those concerns were acknowledged by Mr Sutor in cross examination. [68] Based on the evidence of Mrs Bell and Ms Knight I find that on the balance of probability the allegations of aggressive and bullying management by Ms Ralph directed to Mrs Bell are made out for the period in early 2012. I reject the submission of Queensland Health and Ms Ralph that Ms Ralph was merely acting “forcefully” rather than in a bullying way. I do not accept Ms Ralph’s evidence as to any failings in Mrs Bell’s performance which may have justified “firmer” or “forceful” management, as there has been no record of poor performance made nor any attempt to place Mrs Bell on a performance management plan which is the common and accepted way of dealing with poor performance in Queensland Health. In any event, even if there was poor performance in terms of the financial performance of the café or Mrs Bell’s management, I find that aggressive and bullying management is an unacceptable method of management. Significance of findings in relation to management of work and the investigation [69] Mrs Bell submits that she was performing well in her role and that the only explanation for Mrs Ralph adopting an aggressive management style with her was her rejection of Ms Ralph’s acts of sexual harassment. She says that Ms Ralph complained to her superiors as to her performance in order to gain their support for her changed management style and to head off any complaint Mrs Bell may make. Additionally, it is submitted Ms Ralph admitted that she knew a changed management style may result in Mrs Bell “falling apart”, which in fact occurred when she sustained psychological injury as a result of Ms Ralph’s treatment of her. [70] Mrs Bell submits that the effect of the sexual harassment on her was compounded by Queensland Health’s failings in dealing with the complaint made by the applicant and further that the formal complaint and the investigation resulted in the applicant experiencing false complaints about her performance, creating a great deal more stress and anxiety to her. [71] It is submitted that the medical evidence clearly indicates that the conduct in 2012 is inextricably entwined with the conduct in 2011. [72] Mrs Bell seeks an order for compensation for unlawful sexual harassment which has been exacerbated by the systemic failures of Queensland Health. [73] Dr Stacey was Mrs Bell’s treating psychologist. He diagnosed an “adjustment disorder with mixed anxiety and depressed mood, chronic”. Dr Stacey prepared a medical report, dated 20 October, 2012, attached to his affidavit, sworn 11 October, 2013. Dr Stacey described Mrs Bell’s symptoms as severely depressed mood with past suicidal thoughts and -- 14 of 21 -- 15 plans, irritability and anger, severe anxiety and distress related to any provocations from the workplace, frequent headaches and heart palpitations, insomnia and bizarre dreams. She was also engaging in ruminative thoughts and avoidance of dealing with the workplace and WorkCover. He treated her with supportive and cognitive behavioural therapy and antidepressant medication. I accept the contents of his report in relation to Mrs Bell’s medical condition. In cross examination it was suggested to Dr Stacey that the stressor which caused Mrs Bell’s medical condition was harassment in the workplace after she returned to work from leave in early 2012. Dr Stacey said that one cannot neatly isolate the issues and that there was a lead up event. He thought that the incident at the Paddington Tavern had the effect of predisposing Mrs Bell to the injury that she suffered as a result of experiencing the harassing behaviour in early 2012. He did however say that the ongoing harassment was the major part of the injury. I accept Dr Stacey’s expert opinion in this regard. Dr Stacey also considered that with treatment Mrs Bell was capable of returning to work in a new workplace. [74] Mrs Bell also relied upon a report prepared by Dr Slack, Psychiatrist, dated 28 August, 2012 attached to his affidavit sworn 1 October, 2013. Dr Slack confirmed Dr Stacey’s diagnosis and confirmed that Mrs Bell’s treatment was appropriate and that her prognosis was good. He concluded his evidence, in re-examination, by saying that if there had been no incident at the Christmas party, Mrs Bell may not have been as apprehensive and may not have been as affected by the bullying and intimidation she suffered on her return to work. He thought the bullying and harassment was the major stressor. I accept Dr Slack’s expert opinion. [75] It is contended for Mrs Bell that the effect of the sexual harassment on Mrs Bell was compounded by Queensland Health’s failings in dealing with Mrs Bell’s complaint. I find that the investigation was poorly handled in terms of the time it took, the failure to interview Mr Bell as a key witness and the acknowledged indication that a decision had been made in relation to the matter before the investigation had concluded. Although the investigation of itself did not result in psychological injury to Mrs Bell, I accept that it added to the hurt and humiliation caused to her by the incident of sexual harassment. [76] I am troubled by the assertion that the aggressive management style adopted by Ms Ralph in 2012 was a consequence of Mrs Bell rejecting her sexual proposition. That is an inference I am asked to draw based on an argument that Mrs Bell was not a poor performer and that there can be no other explanation for the conduct. It was acknowledged by Mrs Bell and the Queensland Health witnesses that there were concerns as to the profitability of Connect café. I am of the view that it is more likely the aggressive management style adopted by Ms Ralph was a response to the requirement of her managers to see a change in the fortunes of Connect café in circumstances where Ms Ralph had informed them that the problems related to the performance of Mrs Bell as a Manager. I do -- 15 of 21 -- 16 not accept the submission of Mrs Bell that she was subjected to aggressive management because she rejected Ms Ralph’s sexual proposition. [77] Accordingly, I find that the relevance of the aggressive treatment of Mrs Bell by Ms Ralph in 2012 is that it aggravated a pre-existing anxiety and predisposition to psychological injury, existing in Mrs Bell as a result of the incident of sexual harassment at the Paddington Tavern, which in turn gave rise to a psychological injury. Did Queensland Health take reasonable steps to prevent the sexual harassment occurring? [78] I accept he submissions of Mrs Bell that the evidence reveals little or no recent sexual harassment training was undertaken by Queensland Health for its staff. [79] Queensland Health offered no evidence as to how it had sought to reasonably prevent Ms Ralph from engaging in sexual harassment. I find that Queensland Health is vicariously liable for the actions of Ms Ralph at the Paddington Tavern on 17 December, 2011, when she made the “threesome” comments, which I have found amounts to sexual harassment. Loss and Damage [80] Mrs Bell submits that the Tribunal should make an order compensating her for the unlawful sexual harassment she suffered, which has been exacerbated by the systemic failures of Queensland Health. [81] Mrs Bell does not seek recovery of economic loss. She seeks compensation for hurt and humiliation in the order of $80,000.00 to $100,000, indicating that there are strong similarities to a case of Williams v Robinson & Anor.1 She submitted that the bullying style of management should be taken into account as part of the matrix of facts related to the sexual harassment she suffered and compensation assessed by reference to her psychological injury, being the consequence of both the sexual harassment and the bullying style of management in 2012. [82] Queensland Health and Ms Ralph submit that the evidence is not strong enough that sexual harassment gave rise to her psychological decompensation. They say the evidence is that her condition was related to harassment in the workplace, which broke the causal link. Further, they say that the medical evidence is not, as submitted by Mrs Bell, that sexual harassment, bullying and a flawed investigation all gave rise to her adjustment disorder. [83] They submit that if it is found that the “threesome” comment made at the Paddington Tavern on 17 December, 2011 is sexual harassment, it has 1 (2000) EOC 93-112. -- 16 of 21 -- 17 not been causative of Mrs Bell’s adjustment disorder and that only modest damages would be attracted in the order of $1,000.00. It is submitted the Tribunal cannot be satisfied, on the medical evidence and Mrs Bell’s own evidence as to the effect of the bullying management by Ms Ralph, that the adjustment disorder was caused by any sexual harassment. Not only does Queensland Health say that the “threesome” comment was not causative of Mrs Bell’s adjustment disorder they also say that the alleged bullying conduct which occurred after 17 December, 2011 is not a contravention of the Act, therefore no compensation can be awarded in these proceedings for any damage it may have caused. Principles related to assessment of compensation [84] Section 209 of the Act provides that if the Tribunal decides that the Act has been contravened it may make: “(1) … (b) an order requiring the respondent to pay to the complainant or another person, within a specified period, an amount the tribunal considers appropriate as compensation for loss or damage caused by the contravention … (5) In this section – damage, in relation to a person, includes the offence, embarrassment, humiliation, and intimidation suffered by the person.” [85] The principles which guide assessment of compensation, which can be discerned from the cases, include: (a) a complainant should be compensated for losses arising directly and naturally from the wrong rather than being limited to those losses which were reasonably foreseeable.2 (b) Assessment of damages is through a comparison of the position the complainant might have been in had the discriminatory conduct not taken place with the situation in which the complainant was placed by reason of the conduct of the respondent, the object being to place the complainant in the position they were in before the contravention of the Act.3 (c) Where there are multiple causes of injury or loss, the fact that contravention of the Act is not the sole cause of loss or damage may be taken into account, by way of adjustment, when 2 Essa v Laing Ltd [2004] IRLR 313; McCauley v Club Resort Holdings Pty Ltd (No 2) [2013] QCAT 243. 3 Hall v Sheiban (1989) 20 FCR 217; Haines v Bendall [1991] HCA 15; O’Neil v Steiler [1994] QADT 2. -- 17 of 21 -- 18 determining what is an appropriate sum by way of compensation.4 (d) On the question of whether an event needs to be the sole cause of the consequences, or whether it is sufficient for it to be a substantial cause, a workable test often applied is that of material contribution where materiality depends on the purpose behind the statute as related to the circumstances of a particular case.5 (e) Where a recognised personal injury is caused by a contravention of the Act, then it is acceptable to be guided by the level of compensation which might be awarded at common law for that personal injury.6 [86] The loss and damage for which Mrs Bell seeks compensation is for embarrassment and humiliation attended by the sexual harassment which occurred on 17 December, 2011 and for the psychiatric injury she later sustained. [87] I agree with the submissions of Queensland Health and Ms Ralph that limited to the embarrassment and humiliation arising from the “threesome” comment any award of compensation would be small. I consider the sum of $2,000.00 is appropriate compensation. However, the matter did not stop there. The medical evidence I have accepted is that the incident of sexual harassment made her so apprehensive that she was predisposed to a psychiatric injury as a result of the subsequent bullying and aggressive management at the hands of Ms Ralph. Mrs Bell did in fact suffer from a recognized psychiatric injury, being an “adjustment disorder with mixed anxiety and depressed mood, chronic”. [88] Based on the evidence of Dr Slack and Dr Stacey, I find that the incident of sexual harassment was a material cause of Mrs Bell’s psychiatric injury and that the injury was the direct and natural result of Ms Ralph’s contravention of the Act. [89] In the text “Australian anti-discrimination law”, the authors express the view that the approach taken by the courts when dealing with other statutory wrongs is helpful to the problem of establishing whether there is a sufficient connection between a complainant’s loss or damage and breach of the Anti-discrimination Act. They refer to Henville v Walker, where Justice McHugh of the High Court discussed principles which assist tribunals of fact in deciding causation issues: 4 Gama v Qantas Airways (No.2) [2008] FCAFC 69; State of Queensland & Anor v Barney [2013] QCATA 104. 5 ACN 070 037 599 P/L & Anor v Larvik P/L & Anor [2008] QCA 416; Travel Compensation Fund v Tambree [2005] HCA 69; as discussed in McCauley v Club Resort Holdings Pty Ltd (No.2) [2013] QCAT 243. 6 Hall v Sheiban [1989] 20 FCR 217; State of Queensland & Anor v Barney [2013] QCATA 104. -- 18 of 21 -- 19 “If the defendant’s breach has “materially contributed” to the loss or damage suffered, it will be regarded as a cause of the loss or damage, despite other factors or conditions having played an even more significant role in producing the loss or damage. As long as the breach materially contributed to the damage, a causal connection will ordinarily exist even though the breach without more would not have brought about the damage. In exceptional cases, where an abnormal event intervenes between the breach and damage, it may be right as a matter of common sense to hold that the breach was not a cause of damage. But such cases are exceptional.”7 [90] Following this principle I consider that there is sufficient evidence from the medical specialists that the sexual harassment played a material role in causing the psychological injury, in that it predisposed Mrs Bell to injury and if it had not been for the sexual harassment and the apprehension caused, by it, she may not have been as affected by the bullying and harassment. [91] Accordingly, I reject the submissions made on behalf of Queensland Health and Ms Ralph that the incident of sexual harassment did not cause the psychological injury. [92] I find that the sexual harassment on 17 December, 2011, materially contributed to, and therefore caused, a personal injury being an adjustment disorder with mixed anxiety and depressed mood. The other main contributory factor being the bullying and harassing conduct of Ms Ralph in early 2012. Assessment of compensation [93] An assessment of the appropriate level of an award of compensation is assisted by previously reported cases. [94] Mrs Bell relies on the decision of Williams v Robinson & Anor.8, which was decided in 2000. A sum of $30,000.00 was awarded for emotional pain, humiliation, embarrassment and other negative emotions and loss of chance to fulfil the complainant’s desire to follow a career in the RAAF. The complainant was found to have suffered from post traumatic stress disorder relating to her history of sexual assault. It was found that the conduct of RAAF superior officers in dealing with the allegations in 1985 and 1996 caused the complainant’s relatively minor assaults to be considerably more damaging than they would otherwise have been. [95] Queensland Health and Ms Ralph offered no comparative decisions with respect to psychiatric injury. [96] There are three recent cases in this Tribunal which offer some comparative guidance. 7 (2001) 206 CLR 459 at 493, discussed in Rees, N, Rice, S, Allen, D, Australian anti- discrimination law,2nd ed, The Federation Press, Sydney, 2014 at [13.4.7]. 8 (2000) EOC 93-112. -- 19 of 21 -- 20 [97] In McCauley v Club Resort Holding Pty Ltd9, sexual harassment continued over a period of three days, the complainant suffered an adjustment disorder with mixed anxiety and depressed mood over a period of nine months or so, although the psychological effects of the harassment lasted longer than that. The award for non-financial loss was $20,000.00. [98] In Barney v State of Queensland and Anor10 the complainant suffered a major depressive episode of moderate severity with symptoms continuing over a period of about 20 months but which still affected him 5 years later. An award of $40,000.00 was made for non- financial loss. [99] In Nunan v Aaction Traffic Services Pty Ltd11, the complainant suffered a major depressive disorder of moderate severity which encompassed a Generalised Anxiety Disorder with sexual harassment being the substantial cause of her injury. She was awarded $40,000.00 for non- financial loss. [100] I consider this matter involves damage closer to that suffered in McCauley’s case, although not as severe, because of Mrs Bell’s good prognosis and responsiveness to treatment. [101] I consider that if contravention of the Act by Ms Ralph, and on the basis of vicarious liability, by Queensland Health, was entirely causative of Mrs Bell’s psychological injury she could be awarded compensation in the sum of $20,000.00 plus a further sum of $2,000.00 for embarrassment and humiliation. However, I do not consider the entirety of that loss and damage is recoverable from Queensland Health and Ms Ralph. [102] I accept the submissions of Queensland Health and Ms Ralph that this Tribunal can only award compensation for loss and damage caused by a contravention of the Act. I agree that to the extent the loss and damage is caused by acts of bullying and harassment, this Tribunal has no jurisdiction to make any award. [103] The medical evidence of Dr Stacey and Dr Slack is that the majority of the psychological injury was caused by the acts of bullying and harassment. [104] Neither party ventured an assessment of the extent to which each of the stressors contributed to the loss and damage. [105] Doing the best I can, I intend to adjust the sum assessed for compensation for the psychological injury and award Mrs Bell the sum of $7,000.00. A further sum of $2,000.00 is awarded for embarrassment and humiliation. Queensland Health and Ms Ralph are jointly and severally liable to pay the sum of $9,000.00 to Mrs Bell. 9 [2013] QCAT 243. 10 [2012] QCAT 695. 11 [2013] QCAT 565. -- 20 of 21 -- 21 [106] At the conclusion of the hearing it was suggested by Mrs Bell that the Tribunal should order training programmes in sexual harassment to be implemented at Queensland Health. Counsel for Queensland Health objected that this was not part of the pleaded case and that it is not open to press such an order at a late stage in the proceedings. I accept that submission and decline to make such an order. [107] The issue of costs was reserved until after the decision in this matter. Orders [108] It is ordered that: (a) the First Respondent Queensland Health and the Second Respondent Lindy Ralph, pay to the Applicant Karen Bell, the sum of $9,000.00 within 28 days of the date of this Order; (b) Mrs Bell to file and serve submissions in relation to costs by 18 March, 2014; (c) Queensland Health and Ms Ralph to file and serve submissions in relation to costs by 31 March, 2014; (d) Mrs Bell to file and serve any submissions in reply by 7 April, 2014. -- 21 of 21 --