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Sexual discrimination

Poniatowska v Hickinbotham & Ors [2009] FCA 680. Mansfield J.

In her late 30s, a law graduate from Warsaw who had emigrated from Poland in 1991, the divorced mother of two applicant held a realty sales job with a subsidiary, Employment Services Australia PL, of the Adelaide developer, Hickinbotham Group, from January 2005 until dismissal in February 2006.

She brought industrial proceedings in March but withdrew such before commencing sales work with A V Jennings in May 2006, from which she resigned in that September, and did not work subsequently, because of incapacitating depression and anxiety caused by work with Hickinbotham.

In August 2006 the worker complained to the Human Rights and Equal Opportunity Commission under the Human Rights and Equal Opportunity Commission Act 1986 (Cth) that she had been subject of sexual discrimination, racial discrimination, and sexual harassment while working for Hickinbotham.

In June 2007, a Commission delegate concluded there was no prospect of conciliation, concordant with s46PH(1)(i) of the HREOC Act.

Pursuant to s46PO(1), the worker then commenced in the Federal Court, against the actual employer company, its parent, two directors and three other employees, and relying on substantially the same unlawful discrimination of her complaint to the Commission.

Mansfield J awarded her $463,000 damages plus costs,

She claimed on six, three found, affronting incidents of unwanted crude advances from colleagues between April and September 2005, the employer’s responses, and employer discipline warning letters in late 2005.

Mansfield J [29-31: “The starting point is the HREOC Act. S 3 defines ‘unlawful’ discrimination to include any acts, omissions or practices that are unlawful under Pt II of the Sex Discrimination Act 1984 (Cth), which includes ss 14 and 28B, and conduct that is an offence under s 94 of the SD Act.

“Part IIB of the HREOC Act deals with redress for unlawful discrimination. A complaint of unlawful discrimination must be dealt with by the President of HREOC: s 46PD. S 46PH empowers the President to terminate a complaint on a number of grounds, including relevantly by s 46PH(1)(i) that the President is satisfied that there is no reasonable prospect of the matter being settled by conciliation. That is what happened here.

“That enlivens the ability of a complainant to apply to the Court under s 46PO(1), as Ms Poniatowska has done.”

His Honour detailed SD Act ss 5 Sex discrimination, 14 Discrimination in employment or in superannuation, 28A Meaning of sexual harassment, 28B Employment, partnerships etc.

Also, “S 94 dealing with victimisation, although expressed as establishing a criminal offence, is also conduct which may amount to unlawful discrimination as defined in s 3 of the HREOC Act,” although that was not pressed here. [36]

SD Act s9 applied Pt II Prohibition of discrimination to trading or finance corporations and employees: s 9(11). His Honour noted s 8 Act done for 2 or more reasons, applying to s 5 et al, and vicarious liability provision at s 106, and its uninvoked proviso of reasonable employer preventive measures.

Mansfield J detailed the complex of facts. In several episodes, colleagues had sent offensive text and picture messages by telephone and email, as well as made unwanted sexual advances, over objections from the applicant. A company code of conduct was routinely ignored. Inquiry was superficial. There was no protocol for dealing with such complaints.

Whereas the company compiled documentary evidence in specious complaints of the applicant’s employment performance, no such issued about the discriminatory behaviours.

Warning letters were unfounded. One included: “As was explained to you, your files do not meet the company standard and overall are far worse than all of our other Building Consultants, all of whom have received the same training as you, with many having received less.”

Mansfield J [infra 276] noted “… the impression I have developed from the whole of the evidence that the process leading to Ms Poniatowska’s termination was preordained, that is directed to a particular end.”

Thereafter [282+], “In my judgment, Ms Poniatowska was not dismissed for the reasons stated in the termination letter. I also find, for the reasons indicated, that none of the first warning letter, the second warning letter, the third warning letter or the suspension letter set out accurately matters about which her employer was satisfied that she had conducted herself in her employment so as to warrant the giving of those letters. Put bluntly, I find that none of those warning letters, or the suspension or termination of her employment, were for her poor work performance.

“I find that there was a different, but consistent, motivation for those communications. It was to set the scene for the termination of, and ultimately to terminate, Ms Poniatowska’s employment because she had, over a period of time, revealed by what she had done in relation to the May 2005 allegations, the June 2005 allegations and the Lotito allegations, a sensitivity to the conduct of the type to which those allegations related.”

Re unwelcome sexual advances, his Honour referred to Aldridge v Booth [1988] FCA 170. SD Act s 28A sexual harassment test was objective: Leslie v Graham [2002] FCA 32 at [70].

At [310], ”In my judgment, ESA has discriminated against Ms Poniatowska on the ground of her sex because, by reason of her sex, she was treated less favourably than it would have treated a male person in the same or not materially different circumstances. It has, further contravened s 14(2)(c) of the SD Act by so discriminating against her by dismissing her.”

At [316], the applicant was entitled to relief: HREOC s 46PO(4).

Breach of implied term of trust and confidence would not have availed, considering authorities: [317+].

Mansfield J declined to order apology [324+]. Relief liability was confined to ESA: [329].

Later [350], his Honour: “On the basis of the evidence, I find that she has since early 2006 at least suffered from an adjustment disorder with mixed anxiety and depression as a result of the unlawful discrimination of ESA. It has been a severe depression. I do not need to find whether she has suffered post traumatic stress disorder in addition, as any symptoms in relation to it, if she suffers from that condition, have been of a similar nature to those suffered from the other conditions, and the future for her is no worse by any additional diagnosis of post traumatic stress disorder than from her primary conditions. I also find that those conditions are caused by the conduct of the Hickinbotham Group in the way I have described above, that is by its sex discrimination and therefore by its unlawful discrimination.”

Infra [352], “The evidence is that there is a range of periods over which she is likely to recover. It ranges from about six months to about two years, when she is likely to be able to return to full-time work. Clearly, the resolution of this case will remove an impediment to her medical progress. I find that upon the resolution of this case, she is likely to progressively improve in her condition to the point where, at the expiration of about one to two years, she is likely to be able to return pretty much to any form of work,” his Honour said.

Past and future pain and suffering compensation awarded $90,000: [353]. Noting ESA earning in 11 months $82,000, his Honour awarded past loss of earning capacity $200,000: [355]. Future loss of earnings $140,000: [356]. Future medicals $3,000, no past expenses proved. Interest $30,000: [360]. Exemplary and aggravated damages not ordered. Total $466,000 sic: [363]. Costs. Leave to apply for contribution orders.

A: P Heywood Smith QC, A Pridmore, inst Duncan Basheer Hannon. R1-4, 6,7: A Gotting, inst EMA Legal. 5R: In person.

Appeal dismissed: Employment Services Australia Pty Ltd v Poniatowska [2010] FCAFC 92 >>


Sharma v QSR Pty Ltd t/as KFC Punchbowl [2009] NSWADT 166. Smyth Judicial Member, E Hayes & L Mooney Non-Judicial Members.

Submissions closed 30.07.08, after hearing 4 days, in March, April and July 2007.

The applicant worked at the fast food retailer from August 2005, when 15yo, until May 2007, when she complained in writing that her superviser, an assistant manager twice her age, had sexually harassed her.

Some days before termination, a co-worker called by the employer saw the assistant manager grab the applicant’s leg and drag her along the floor, despite her frightened protests, then releasing her, stood close to her, touching her legs and making “cat noises”. The assistant manager had afterwards propositioned to drive the applicant to swim nude at Bondi.

Other persistent, unwelcome conduct – showing telephone pornography, sexual comments - of the assistant manager was alleged.

The applicant complained of sexual harassment to the NSW Anti-Discrimination Board in respect of the assistant manager, which settled, and the employer.

The employer denied occurrences, authorisation or permission, the applicant’s objections, and that it had failed to take reasonable steps to prevent such behaviour..

The Tribunal detailed Anti-Discrimination Act 1997 (NSW) ss 22A Meaning of ‘sexual harasment’; 22B Harassment of employees, commission agents, contract workers, partners etc; and [12] noted Chand v Rail Corporation NSW (EOD) [2007] NSWADTAP 54 describing four elements to meet s 22A:

a) one person has engaged in unwelcome conduct;
b) that conduct is a sexual advance, a request for sexual favours or other conduct of a sexual nature;
c) the conduct is ‘in relation to’ another person; and
d) a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated by that conduct.

The Tribunal said [14]: “The applicant maintained that she had been subjected to direct sex discrimination. She submitted that a hostile work environment was created by the sexual harassment over a lengthy period of time and that the respondent had failed to take all steps to deal with the harassment and properly deal with her complaints.

Direct sex discrimination was defined in s 24(1)(a).

“Consequently the question for the Tribunal is did the employer, on the ground of sex or a characteristic of sex, treat Ms Sharma less favourably than it treated or would have treated a man in the same circumstances or in circumstances that are not materially different?” [15]

To onus, the applicant’s, and weight, “the Briginshaw test”, the Tribunal cited Chand v Rail Corporation NSW (No 2) [2009] NSWADTAP 27, its references, and Evidence Act 1995 s 140 Civil proceedings: standard of proof.

The A-D Act s 53 Liability of principals and employers “… provides a defence if the employee took all reasonable steps to prevent the employee from contravening the Act. The onus is on the respondent to prove that they did not authorise the actions of their employee either expressly or by implication. Similarly the onus is on the respondent to prove that they took all reasonable steps to prevent their employee from contravening the AD Act [s. 104 AD Act].” [23]

Late evidence application by the employer was refused, relying on procedural discretion of s73.

The Tribunal described itself as “comfortably satisfied” the leg pulling and nude swim proposition occurrences were unwelcome, were of sexual nature, constituting conduct towards the applicant, which an ordinary reasonable person would anticipate the applicant “would be offended, humiliated or intimidated by that conduct” [infra 63], and that the applicant was sexually harassed contrary to s 22B(2).

Incidents of the assistant manager showing porn to her boyfriend was not sexual conduct to her. Touching incidents were not sufficiently specified. The applicant exaggerated.

At [89], the Tribunal noted Hunt v Rail Corporation of NSW [2007] NSWADT 152 [at 140] relating sexual harassment and sex discrimination.

“We are satisfied that one of the reasons for his treatment of Ms Sharma was her gender and that she was treated less favourably than a male staff member in the same circumstances or circumstances that are not materially different. That constitutes direct sex discrimination within the meaning of s 24(1)(a) of the AD Act.” [infra 93]

Then [infra 94], “We are satisfied that Mr Matic’s treatment of Ms Sharma on or about 10 May 2007 constituted subjecting Ms Sharma to a detriment under s 25(2)(c) of the AD Act. We also consider that by that time the sexual nature of Mr Matic’s conduct had become pervasive and that a hostile work environment existed for Ms Sharma. That adversely affected the terms and conditions of her employment contrary to s 25 (2)(a) of the AD Act.”

The request of the store manager for written complaint, and statements from others, evidenced the employer taking the complaint seriously. The employer proved training courses and staff handbook.

At [114], “We do not consider that the employer expressly authorised the unlawful conduct. However Mr Matic was able to go about the workplace openly ‘talking dirty’, showing employees pornography and engaging in unlawful sexual harassment seemingly unchecked. After carefully considering the evidence we are satisfied that the respondent’s failure to identify and address the conduct of Mr Matic constitutes authorising that conduct by implication.” The employer was vicariously liable.

On damages [116], the Tribunal referred to the Act s 108(2)(a) damages not exceeding $100,000, although instantly the limit was $40,000 because the conduct occurred before 2008 amendments. “Awards can be made for economic and non-economic loss. For example, damages can be awarded for injury to feelings, humiliation and distress: Hunt [above].”

A social worker’s letter was the medical case: “…we have no evidence before us from those who treated her depression at the time regarding the impact of the unlawful conduct on her at the time.” [119].

“On the evidence before us we are satisfied that the applicant was intimidated and humiliated by the conduct of Mr Matic. We accept her evidence that she was scared during the leg pulling incident. The Tribunal considers that an amount of $15,000 is adequate to compensate her for the injury to her feelings and distress she suffered as a result of the unlawful conduct.[120]

“We do not consider this an appropriate case for aggravated damages. As stated in Hunt [220], aggravated damages apply where behaviour that amounts to discrimination is high handed, malicious, insulting or oppressive.” [121]

The applicant had undertaken course work after termination.

“It is also evident that she had significant family problems at the time of the alleged harassment. We have no evidence before us of the exact amount of lost wages. In these circumstances we have insufficient evidence to award damages for economic loss.” [122]

Ordered complaints substantiated of sexual harassment, and of sex discrimination, the respondent to pay the applicant $15,000 damages in 28 days.

A: P Elias, solicitor. R: J Murphy.

Appeal dismissed: Sharma v QSR Pty Ltd t/as KFC Punchbowl [2010] NSWADTAP 22 >>


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