CES liable for employer's harassment

Cases

CES liable for employer's harassment

A recruitment or employment agency that has reasonable grounds to suspect that there exists a material chance that employees placed in a particular workplace would be at risk of being discriminated against on the grounds of sex through sexual harassment, may by operation of s105of the Sex Discrimination Act 1984(Cth), be liable for permitting any subsequent unlawful conduct by the employer.

WantToReadMore

Get unlimited access to all of our content.

A recruitment or employment agency that has reasonable grounds to suspect that there exists a material chance that employees placed in a particular workplace would be at risk of being discriminated against on the grounds of sex through sexual harassment, may by operation of s105of the Sex Discrimination Act 1984(Cth), be liable for permitting any subsequent unlawful conduct by the employer. The decision in Elliott v Nanda & Commonwealth of Australia, [2001] FCA 418 (12 April 2001), was also significant in finding that the scope of the Federal Court's power, while enforcing a Human Rights and Equal Opportunity Commission (HREOC) determination, were not limited by the original determination, but rather by the complaint originally made to the HREOC.

Background

This matter initially commenced as two applications. Both applications were brought by a former receptionist (the applicant) at a medical centre. One of the applications was brought pursuant to s83a of the Sex Discrimination Act 1984(Cth) (SDA), against a medical doctor for whom the applicant worked as a receptionist throughout late 1995 and early 1996. In relation to the first application, it was alleged that the doctor sexually harassed the applicant. In this regard the applicant sought an order of the Court enforcing against the doctor an earlier determination of the Human Rights and Equal Opportunity Commission (HREOC). In that determination the Commission found that the receptionists had been sexually harassed and directed the doctor to pay her $15,000 in general damages for hurt and humiliation. The doctor did not comply with this direction.

The second application was brought under s46POof the Human Rights and Equal Opportunity Commission Act 1986(Cth). It related to an alleged contravention by the Commonwealth as a result of dealings that the applicant had with the Commonwealth Employment Service (CES) when she obtained employment with the doctor. It was claimed that the applicant was referred to the doctor for work by the CES, despite several complaints that the doctor's surgery constituted a sexually hostile working environment.

The allegations against the doctor

It was alleged that throughout her employment with the doctor, that being from September 1995 until March 1996, the then-17-year-old receptionist was subjected to harassment and intimidation. The incidents included but were not limited to:

  • the doctor grabbing her breasts;

  • comments about her physical features;

  • references by the doctor of his numerous sexual conquests - many of whom were patients;

  • the doctor patting her on the bottom;

  • a trouser sewing incident where the doctor told the applicant to sew a button back onto his trousers while he was wearing them, this required the doctor to undo his fly while the applicant knelt on the ground and sewed on the button.

Observation of the court regarding the allegations

His Honour commenced by noting that overall the applicant came across as a witness of truth, whereas the doctor gave the Court the impression that he was constructing answers in order to place his case in more favourable light. Moore J noted that even if he accepted the doctor's evidence in entirety, it would nonetheless manifest quite extraordinary behaviour. On his own account, the doctor would have it that in the first few weeks of the applicant's employment, he acquiesced her to repair his trousers in circumstances that involved close physical contact which included her inserting her thumb behind his waistband near his fly to enable the sewing to be done. Generally, his Honour was satisfied that having regard to the seriousness of the allegations, the applicant demonstrated that on the balance of probabilities the events took place as alleged in her initial complaint and again in her evidence to the HREOC.

Did the conduct constitute harassment or discrimination?

Having found that on the balance of probabilities, the allegations occurred, Moore J then turned his attention to a consideration of whether that conduct constituted either sexual harassment or sexual discrimination. It was noted that the application to the Federal Court was for the enforcement of a determination of the HREOC. The HREOC had found that the allegations of the applicant constituted clear examples of sexual harassment. In light of these findings the Commissioner did not consider whether the doctor's actions also constituted unlawful sexual discrimination pursuant to s14of the SDA. In the Federal Court proceedings the applicant also sought to raise the question of whether there had been unlawful discrimination. Therefore, Moore J was required to determine whether in enforcement proceedings the Federal Court could entertain a contravention that was not expressly determined by the HREOC at first instance.

On the question of whether the Court had the power to consider a contravention when enforcing a determination in circumstances where no finding or declaration of the particular contravention was made by the HREOC, his Honour was of the opinion that the scope of the Court's enquiry was not limited by the original determination. Rather, the scope of the Court's power was limited by the complaint originally made to the HREOC. Accordingly, it was found that the applicant could invite the Federal Court to declare that the doctor had discriminated against her because of her sex even though the Commission made no determination to this effect.

In relation to the harassment allegations, his Honour was satisfied that during the period of the applicant's employment with the doctor, that the doctor sexually harassed her in a way comprehended by Act and in so doing contravened s28Bof the SDA.

Sexual discrimination allegations

The claim that the doctor's conduct also constituted sex discrimination was a significant issue in that it impinged upon the applicant's claim against the Commonwealth. The gravamen of the applicant's submission was that the conduct of the doctor was unlawful discrimination in that it created a hostile, demeaning and oppressive work environment, and accordingly subjected the receptionist to a 'detriment' and afforded her less favourable 'conditions of employment' which would not have been experienced by a male employee in the same circumstances. In the circumstances of this matter, the Court was of the view that the doctor's conduct constituted unlawful discrimination.

Claim against the CES

By way of background it is worth noting that the job vacancy with the doctor was drawn to the applicant's attention by her caseworker who was based at the Newcastle office of the CES. Thus it was apparent that the applicant was introduced to the doctor as a prospective employee through the action of the CES caseworker.

The evidence against the Commonwealth took the form of oral evidence from a former receptionist of the doctor, whose employment proceeded that of the applicant. It was submitted in evidence that the former receptionist worked for the doctor for approximately six weeks but left because of his advances towards her. She subsequently lodged a written complaint with the CES. The matter was not pursued further on account of the fact that as she was a 17-year-old, her parents were of the view that she would not handle legal proceedings well.

Nonetheless, the evidence revealed that a note was placed on the doctor's CES file indicating that he was contacted in September 1985 and told of the complaint. It was apparent from the evidence that by August 1986, the CES had received several complaints of sexual harassment by the doctor. Two of those complaints had been in writing. Services to the doctor were suspended for a short period but were reinstated when none of the complaints were pursued.

The case against the Commonwealth was based upon the claim that it allegedly contravened sections 22, 26and 105of the SDA. According to Moore J the most relevant provision was that of s105. Section 105provides that a person who causes, instructs, induces, aides or permits another to unlawfully discriminate shall under the SDAbe taken to also have done the act. In other words s105provides a means of rendering liable persons who could prevent unlawful conduct, such as discrimination on the grounds of sex, from occurring. In this regard, an employment agency may place an employee with an employer, and be aware that there is a material chance that the employee would be at risk of being discriminated against on the grounds of sex. His Honour held that if this is the case and the agency fails to take steps to influence or control the employer's conduct then the agency may have permitted any subsequent unlawful conduct by the employer.

In arriving at this position, Moore J accepted that there could be practical problems that confront an employment agency. Namely, the task of maintaining a relationship with its clientele - the employers, by placing future employees and the agency's inability to investigate allegations or to flag the issue with potential employees. However, the fact that there may be practical problems for an employment agency concerning the substantiation of complaints or the communication of the risk of discrimination to potential employees did not mean, in his Honour's opinion, that s105should be given a narrow meaning. There was no reason apparent to Moore J why an employment agency, to whom several complaints had been made about sexual harassment, could not either terminate the service or inform the employer that the agency would tell, as a condition of maintaining the service, potential employees that complaints had been made or at least require the employer to put in place measures at the workplace to stop or at least influence the potentially unlawful conduct.

In this instance at the time that the applicant was placed in the employment of the doctor, the CES knew of several complaints against the doctor. Thus it was found that that the CES placed the applicant in employment having reasonable grounds for believing that there was a material chance that the applicant was at risk of being discriminated against on the grounds of her sex through sexual harassment and permitted the unlawful conduct in the way discussed. His Honour was scathing in noting that the number of complaints against the doctor should have alerted the CES to the distinct possibility that young females sent to work for the doctor were at risk of sexual harassment and being discriminated against on the grounds of sex. To this end it was found that the Commonwealth permitted the doctor to discriminate against the applicant on the grounds of her sex. In so doing the Commonwealth was by operation of s105, to be treated as having discriminated against the applicant on the grounds of her sex.

Compensation

Both the doctor and the Commonwealth were found to have engaged in conduct proscribed by the SDA. His Honour was satisfied that the conduct of the doctor had a significant impact upon the applicant, particularly having regard to her age and comparative vulnerability. In this regard, Moore J assessed damages by way of compensation as $15,000. His Honour was also satisfied that the matter had been considerably delayed by the conduct of the doctor, and in particular his failure to participate in the proceedings before the HREOC. Therefore, the doctor was ordered to compensate the applicant by way of aggravated damages in the sum of $5000.

Both the Commonwealth and the doctor were found to be legally liable to pay the $15,000 awarded as damages, and as such the parties were ordered to address the Court on how this would be reflected in the final orders.

 

 

Post details