Sexual Harassment and Race Discrimination Claim Allowed

The Administrative Decisions Tribunal allowed a claim for sexual harassment, race discrimination, and victimisation, awarding damages of $27,500 for sexual harassment, $7,500 for race discrimination, and $12,500 for victimisation.

OUTCOME: Allowed

CITATION: [NAME_1] v Commissioner, Department of Corrective Services & Anor [2002] NSWADT 42 DIVISION: Equal Opportunity Division APPLICANT [NAME_1] FIRST RESPONDENT PARTIES: Commissioner, Department of Corrective Services SECOND RESPONDENT [NAME_2]: 001008 HEARING DATES: 19/03/01 - 23/03/01, 26/06/01, 27/06/01 SUBMISSIONS CLOSED: 06/27/2001 DATE OF DECISION: 03/26/2002

BEFORE: Goode P - Judicial Member; Nemeth de Bikal L - Member; Farmer L - Member APPLICATION: Race Discrimination - In work - Sexual Harassment - In workplace - Victimisation MATTER FOR

DECISION: Principal matter LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Public Sector Management Act 1988 Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362 O'Callaghan v Loder [1985] 3 NSWLR 89 [COMPANY_4] (1988) EOC 92 - 229 Shellharbour Golf Club v Wheeler [1999] NSW SC 224 Samuels Real Estate v Lamb & Anor (1998) EOC 92 - 923 University of New South Wales v [NAME_5] [(1974-75) 133 CLR 1] [NAME_6] v [COMPANY_7] (1990) EOC 92 - 313 [NAME_8] v Commissioner, [NAME_9] (1996) EOC 92 - 808 CASES CITED: [NAME_10] v Department of Public Works (1984) EOC 92 - 117 Waters v Public Transport Corporation (1991 - 92) 173 CLR 349 Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165 Waterhouse v Bell (1991) 25 NSWLR 99 Hill v Water Resources Commission (1985) EOC 92 - 127 Reddrop v Boeringer Ingleheim Pty Ltd (1994) EOC 92 - 031 D v Berkeley Challenge Pty Ltd [2001] NSWADT 92 Hall v Sheiban (1985) ALR 503 APPLICANT [NAME_11], barrister REPRESENTATION: FIRST RESPONDENT [NAME_14], barrister SECOND RESPONDENT [NAME_16], solicitor ORDERS:

1. In relation to the claim of sexual harassment, we order that the First and Second Respondents pay the Applicant within 21 days general damages in the sum of $27,500;

2. In relation to the claim of race discrimination, we order that the First and Second Respondents pay the Applicant within 21 days general damages in the sum of $7,500;

3. In relation to the claim of victimisation, we order that the First Respondent pay the Applicant within 21 days general damages in the sum of $12,500.

Background to the Complaint 1 [NAME_1] is of Maltese origin. She currently works as a First [NAME_17] with the Department of Corrective Services ("the Department"), having commenced her employment on 19 December 1988. 2 On 11 February 1999, she lodged a complaint with the Anti-Discrimination Board ("the Board") alleging that she had been sexually harassed, discriminated against on the ground of her race and victimised. She nominated Senior [NAME_2] (the Second Respondent) as the person who had sexually harassed her and made racist remarks to her. She alleged that at the relevant time, both she and [NAME_2] were working at [NAME_18] [COMPANY_19] ("[NAME_18]"). 3 Her complaint was lodged outside the 6 month period specified in s 88(3) of the Anti-Discrimination Act 1977 ("the Act"). However, good cause having been shown for the delay, the President of the Board exercised his discretion to accept the complaint out of time pursuant to s 88(4) of the Act. 4 Before complaining to the Board, [NAME_1] submitted a formal written complaint to the then [NAME_20] of [NAME_18], [NAME_21], on 18 December 1997 alleging that [NAME_2] had made racist remarks to her and that he had, in effect, also sexually harassed her (Exhibit F, Annexure B). 5 [NAME_21] and his deputy, [NAME_22], subsequently interviewed [NAME_1] on 19 December 1997. She indicated that she wanted a written apology in relation to both the alleged racist remarks and the alleged sexual harassment. 6 Later that day, [NAME_21] and [NAME_22] advised [NAME_2] of the allegations. He said he was prepared to verbally apologise to [NAME_1] in relation to certain alleged racial remarks but not in relation to the alleged sexual harassment. 7 Subsequently, on 30 December 1997 [NAME_1] informed [NAME_21] that she wanted the matter to go to an outside party and that she wanted departmental action taken against [NAME_2]. ([NAME_21]'s memorandum of 6 January 1998 to [NAME_23], Professional Standards Unit, Exhibit F, Annexure C.) 8 In due course, Senior Assistant Commissioner, [NAME_24], appointed [NAME_25] of the Inmate Movements Section to conduct an investigation into [NAME_1]'s allegations. She interviewed [NAME_1] on 17 March 1998 and [NAME_2] on 29 May 1998. Other officers interviewed were: * [NAME_22] * [NAME_26], a Senior Assistant Superintendent who held the position of Staff Officer at [NAME_18] from 1996 - 1998 * [NAME_27] and [NAME_29], Senior Correctional Officers working at [NAME_18] at the time in question.

9 [NAME_25]'s report of 14 June 1998 was subsequently forwarded to the Professional Standards Unit. She recommended that disciplinary action be commenced against [NAME_2] in relation to the alleged racist comments and the alleged sexual harassment. 10 On 31 July 1998, [NAME_24] directed that the [NAME_20] of the [COMPANY_31], [NAME_32], conduct a preliminary inquiry into the above allegations. After interviewing [NAME_1], [NAME_2], [NAME_26], [NAME_27] and [NAME_29], on 30 November 1998 [NAME_32] recommended that the Department proceed with the following charges against [NAME_2]: * That on or about 13 December 1997, at [NAME_18], he did harass [NAME_1] by saying words to the effect, "why can't you speak English", and "[NAME_1] why don't you go and learn how to speak English, you are in Australia now, not in your country, so forget your language and start learning English". * That sometime in 1997, at [NAME_18], he did sexually harass [NAME_1] by saying to her words to the effect, "you [NAME_1], every time you answer the phone and talk to me I get a hard on".

11 [NAME_24] formally advised [NAME_2] on 16 December 1998 that he had been charged with having committed two breaches of discipline within the meaning of s 66(1)(b) of the Public Sector Management Act, 1988 ("the PSM Act"), namely that he engaged in misconduct. Particulars of the breach were given in accordance with [NAME_32]'s recommendations in para 10 above (see Letter of Charge, Exhibit C, page 81). 12 On 9 February 1999, [NAME_24] formally notified [NAME_2] of his finding that the two disciplinary charges had been substantiated within the meaning of s 66(1)(b) of the PSM Act and that the appropriate punishment was a letter of reprimand and a formal direction that he attend a one day Harassment Prevention Seminar conducted by the Board (see Notice of Decision, Exhibit C, page 8). [NAME_1] was advised of [NAME_24]'s decision on 25 March 1999. 13 In her letter of complaint to the Board, received on 11 February 1999, [NAME_1] briefly refers to other alleged incidents of sexual harassment. She makes it clear that her claim of sexual harassment is far broader than the one incident investigated by the Department. Her letter of complaint to the Board also suggests that her claim of racial discrimination is wider than the one incident of racial discrimination investigated by the Department (see Exhibit 1, Tab 1). 14 In her letter of complaint to the Board, [NAME_1] also makes reference to an application she made in December 1997 for promotion to the rank of Senior Correctional Officer ("Three Stripes"). She states that, if successful, this would have given her greater opportunities for salary increases and promotion within the Department. She was interviewed for the position on 31 March 1998 but was not successful. She subsequently appealed to the Government and Related Employees Appeal Tribunal ("GREAT"). Her appeal was dismissed on 30 September 1998. 15 [NAME_1] claims that her performance at the interview, and her ability to obtain a promotion (both at that time and later), was affected by the alleged conduct of both the First and Second Respondents, the long-term effect of which was to undermine her confidence in herself and remove her desire to seek promotion. This is denied by the First Respondent and [NAME_2]. As we understand [NAME_1]'s case, the loss of promotional opportunities is relevant only to the question of relief. 16 It is common ground that from mid 1997 onwards, [NAME_1] wished to transfer out of [NAME_18] to [COMPANY_31]. However the reasons for the transfer, and the circumstances surrounding it, are very much in issue. [NAME_1] was not transferred to [NAME_30] until 15 May 1998. She claims that the alleged delay in transferring her constitutes victimisation and / or indirect sex discrimination. This is denied by the Department. The Applicant's Case Sexual Harassment 17 In relation to the allegations of sexual harassment, we note that the Act was amended on 4 July 1997 to expressly include sexual harassment as a ground of unlawful conduct (ss 22A and 22B of the Act). Prior to the amendments, sexual harassment was caught by the sex discrimination provisions of the Act (ss 24 and 25). 18 In the present case, the alleged incidents of sexual harassment occurred both prior to and after 4 July 1997. In relation to the alleged incidents which occurred after 4 July 1997, it appears that [NAME_2] could be personally liable under s 22B(2) without there being a corresponding requirement to find the First Respondent liable. 19 It is [NAME_1]'s case that from mid 1996 to December 1997, [NAME_2] sexually harassed her on many occasions during the course of her employment at [NAME_18]. In doing so, it is alleged that the First Respondent sexually harassed her within the meaning of s 22B(1)(a), and that the Second Respondent sexually harassed her within the meaning of s 22B(2) of the Act. 20 It is further alleged that by sexually harassing her, the First and Second Respondents unlawfully discriminated against her on the ground of her sex pursuant to s 25(2)(a), in the conditions of employment afforded to her, and / or pursuant to s 25(2)(c) of the Act, by subjecting her to a detriment. 21 [NAME_1] alleges that the First Respondent is liable for the conduct of [NAME_2], by virtue of the operation of s 53 of the Act and / or the common law. She further alleges that [NAME_2] caused, instructed, induced or aided the First Respondent to unlawfully discriminate against her on the ground of her sex within the meaning of s 52 of the Act. Race Discrimination 22 It is [NAME_1]'s case that on two separate occasions in 1997, [NAME_2] made comments of a racial nature to her during the course of her employment at [NAME_18]. It is alleged that both the First Respondent and [NAME_2] unlawfully discriminated against her on the ground of her race pursuant to s 8(2)(a), in the conditions of employment afforded to her, and / or pursuant to s 8(2)(c) of the Act, by subjecting her to a detriment. 23 [NAME_1] alleges that the First Respondent is liable for the conduct of [NAME_2], by virtue of the operation of s 53 of the Act and / or the common law. She further alleges that [NAME_2] caused, instructed, induced or aided the First Respondent to unlawfully discriminate against her on the ground of her race within the meaning of s 52 of the Act. Victimisation 24 It is [NAME_1]'s case that by delaying her transfer to [COMPANY_31], the First Respondent subjected her to detrimental treatment in breach of s 50(1)(c) of the Act, on the ground that she had made a complaint alleging that [NAME_2] had sexually harassed her and made racist remarks to her. Indirect Sex Discrimination 25 [NAME_1] also alleges that by delaying her transfer, the First Respondent imposed a requirement or condition on her, being the absence of a sexual harassment complaint, in contravention of s 25(2)(b): * with which a substantially higher proportion of men than women were able to comply (in that more women than men lodge sexual harassment complaints), * being a requirement which was not reasonable having regard to the circumstances of the case, and * with which [NAME_1] was not able to comply.

(See s 24(1)(b).) The Case for the First Respondent 26 The First Respondent does not deny that [NAME_2] sexually harassed [NAME_1] in the manner alleged or that he made the alleged racist remarks to her. It denies, however, that it is liable for his conduct in any of the circumstances alleged. Relying on s 53 of the Act, it expressly denies that it either expressly or impliedly authorised [NAME_2]'s conduct, and maintains that it took all reasonable steps to prevent [NAME_2] from contravening the Act. 27 In relation to the victimisation claim, it denies that the alleged circumstances of the delay in transferring [NAME_1] to [NAME_30] contravene s 50(1)(c). It further denies that the alleged circumstances contravene s 25(2)(b) of the Act. The Case for [NAME_2] 28 [NAME_2] denies that he ever sexually harassed [NAME_1]. He also denies that his alleged racial remarks to [NAME_1] on 13 December 1997 amount to unlawful race discrimination. He further denies that he made any other comments of a racist nature to [NAME_1]. Standard of Proof 29 In determining whether [NAME_1] has established her case, we have applied the civil standard of proof. However, in doing so, we have taken into account the gravity of the allegations and the serious consequences of any adverse findings to the Respondents. See the remarks of Dixon J (as he then was) in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362. See also O'Callaghan v Loder [1985] 3 NSWLR 89. 30 We propose to deal with the relevant provisions of the Act, the evidence and our findings in respect of each of the claims in turn below. SEXUAL HARASSMENT Relevant Provisions of the Act 31 Section 22A provides: "Meaning of "sexual harassment" 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. " 32 Section 22B relevantly provides: "Harassment of employees, commission agents, contract workers, partners etc (1) It is unlawful for an employer to sexually harass: (a) an employee, or (b) a person who is seeking employment with the employer. (2) It is unlawful for an employee to sexually harass a fellow employee or a person who is seeking employment with the same employer. . . ." 33 Sections 24(1)(a) and 24(1A) relevantly provide: "24 What constitutes discrimination on the ground of sex (1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of sex if, on the ground of the aggrieved person's sex . . . , the perpetrator: (a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of the opposite sex . . . (1A) For the purposes of subsection (1)(a), something is done on the ground of a person's sex if it is done on the ground of the person's sex, a characteristic that appertains generally to persons of that sex or a characteristic that is generally imputed to persons of that sex." 34 Section 25(2) of the Act provides: "25 (2) It is unlawful for an employer to discriminate against an employee on the ground of sex: (a) in the terms or conditions of employment which the employer affords the employee, (b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or (c) by dismissing the employee or subjecting the employee to any other detriment." The Evidence 35 [NAME_1] gave evidence that she first met [NAME_2] at [NAME_18] in 1995 and that in his capacity as a "Senior Assistant Superintendent", he was often [NAME_20] when [NAME_22] was away. She said she worked in the reception area of [NAME_18] in 1996 before working as [NAME_22]'s Clerk in the first half of 1997 and at the [NAME_33] in the second half of 1997. According to her evidence, she saw [NAME_2] on a regular basis. 36 She said that from mid 1996 onwards she became increasingly uncomfortable in his presence. She recalled that he would often make crude jokes or comments that she did not completely understand but which she thought were sexual in nature. She said that towards the end of 1996 these comments became very distressing to her and made her feel very uncomfortable, and that thereafter, until approximately September 1997, he regularly said to her the following words and other similar words: * "I love to hear your voice. * You are looking very sexy today. * I don't like pants on you, why don't you wear a skirt. * You don't look your age. * You are looking beautiful today. * When you are cranky, you look so beautiful. * Have you had a good night last night? * I am getting a hard on. * I love you when you blush. * Don't wear those pants, I don't like them on you. * You know where to find me."

37 [NAME_1] said that she never encouraged [NAME_2] to make these comments and that when he first started making them, she would not say anything. Instead she tried to get away from him. Over time, particularly when she worked at the [NAME_33], she said she responded by telling him to "shut up" (or words like that), and walking away. She recalled that after she said this, on a few occasions he would not say anything offensive when she saw him but then he would resume making the comments. 38 She said that on one occasion when she was standing working at a computer on a bench in the reception area, [NAME_2] came up behind her, put his hands on her shoulders and said: "You're having a hard day today . Did you have sex last night?" She turned around, resulting in him taking his hands away, and said: "What's that got to do with this?" She then walked away into another room. At the time, he laughed and said: "I hope you had a good day." 39 She also said that on about two or three occasions when she was working as the [NAME_20]'s Clerk, he approached her from behind and placed his arm on her shoulders. She immediately walked away. 40 She said she recalled that in about September 1997 when she was working at the [NAME_33], [NAME_27] was making coffee nearby in the visitors' area of the same building. She said she could not see [NAME_27] from where she was sitting. [NAME_2] came into the [NAME_33] and said to her, "How are you doing?" She replied: "All Correct Sir" (This was a formal way of speaking to a superior officer in the Department). He said, "It's quiet in here", to which she replied, "Yes, it is." He then said, "You're quiet, what's wrong?" to which she said, "Nothing". She said she recalled that he put his hands on her shoulders and said, "Every time I see you and talk to you on the phone I get a hard on." She said that when she stood up [NAME_27] came out of the coffee area and said to [NAME_2], "Why are you talking to her like that?" He replied, "She didn't understand anyway". 41 [NAME_2] had walked away, she said [NAME_27] said to her, "Why do you let him talk to you like that?" to which she replied, "I have to tell someone about it." She said [NAME_27] explained to her that he was referring to his penis getting hard. 42 [NAME_1] said that [NAME_2] had previously made similar comments to her which had embarrassed her. Although she wasn't completely sure what they meant, she gathered they were sexual in nature. 43 She said that on the day of the incident described in paras 40 and 41 above, she was very upset and went to see [NAME_26], the Staff Officer at the time. After describing the incident, she said, "I've had enough of him", to which [NAME_26] replied, "Do you want to put it on paper?" She said she responded by saying, "No, I don't like to put officers on paper especially an SAS [Senior Assistant Superintendent]." After being asked what she wanted to do, she said, "Nothing, I just don't know what to do." 44 According to [NAME_1]'s evidence, [NAME_26] then walked across the corridor to [NAME_22]'s office and said, "Guess what [NAME_34] said to [NAME_1]?" and then told her what had happened. She said [NAME_22] replied, "That's not very nice is it." 45 [NAME_1] said that after that incident, [NAME_2] did not make any more comments of a sexual nature to her. However, whenever he was near her she said she felt stressed and alone, and that she did not want to go to work each day. 46 [NAME_1] also described an incident which she said occurred at the [NAME_33], sometime between September 1997 and December 1997, when [NAME_2] accused her of disobeying orders for not allowing a prisoner to leave for a hospital visit. She recalled that he said to her, "You're nothing but a fucking idiot. You're disobeying orders." As he said this, he pointed to the insignia on his shoulder. 47 It is common ground that [NAME_1] applied for a 3 month transfer to [NAME_30] in July 1997 and that the reason given on her application form was that she wanted more experience at a "man's jail". [NAME_1] gave evidence that she gave that as the reason because she was scared of [NAME_2] and because he held a senior position. She said that after putting in her request, she went to see [NAME_21] to see if it had been approved. She recalled he said to her, "You're a good officer, I cant lose you", to which she replied, "It's only three months. I need a break from here. I want to get away from [NAME_2]." She said [NAME_21] responded by saying, "You're not the first, there are other people having trouble with [NAME_2]. Don't worry about it." When she replied, "I can't stand him anymore." [NAME_21] said, "You'll be right." 48 She gave evidence that she did not tell [NAME_21] the nature of her complaints about [NAME_2] and that he did not ask. She also said that she spoke to [NAME_21] on a number of occasions prior to December 1997 about her request to transfer to [NAME_30] and that although she repeated that she wanted to leave because of [NAME_2], she did not tell him what her problem was. She said she recalled that during one or more of the conversations he said to her words like: "I can't lose you. Why do you want to go to [NAME_30]. Don't worry. I will protect you." and "If you have a problem, just write it in your book. Whatever he does to you, just write it in your book." 49 The incident which ultimately led [NAME_1] to make a formal written complaint about [NAME_2] occurred on 13 December 1997. [NAME_1]'s evidence more specifically relates to her claim of race discrimination and is set out later. In her initial letter of complaint dated 17 December 1997 she states: "He has also spoken to me using sexual language which has deeply [e]ffected me. . . . I am concerned that he will use sexual language to me or touch me inappropriately." (See Exhibit 2, Annexure A.) 50 [NAME_1] also gave evidence of an incident that occurred on 31 December 1997 at the [NAME_33]. She said [NAME_2] spoke to her in a loud and aggressive way, wrongly accusing her of not answering either the phone or her motorola (walkie talkie). [NAME_35], a First [NAME_17] at [NAME_18], called by the Applicant, gave evidence that sometime in 1997 prior to June, she witnessed [NAME_2] speaking to [NAME_1] at the [NAME_33] in an aggressive manner because he considered (wrongly) that she had not answered either the phone or her motorola. She said that [NAME_2] was waving his arms in the air, was red in the face and appeared to be angry. She also said that [NAME_1] appeared to be shocked, embarrassed, humiliated and ready to burst into tears. She only recalled one incident when [NAME_2] had spoken to [NAME_1] aggressively at the [NAME_33] for not answering the phone. Notwithstanding the discrepancies in the dates given, we are satisfied that the evidence of [NAME_35] and [NAME_1] relates to the same incident. 51 To corroborate the incident which occurred at the [NAME_33] in about September 1997, [NAME_1] relies on a report prepared for [NAME_21] by [NAME_27] dated 5 January 1998 (Exhibit C, p 162) and the record of interview between [NAME_25] and [NAME_27], dated 29 March 1998 (Exhibit C, pp 203-216). [NAME_27] was summonsed to attend the hearing but did not appear. In her record of interview with [NAME_25], she said she has a "shocking memory for dates" and that she was unable to recall the date of the incident described in the report to [NAME_21] of 5 January 1998. 52 [NAME_27]' account to [NAME_21] reads: "Whilst working in visits I was present when [NAME_2] came into the gate house and had a conversation with the staff present. One of the staff being Officer J. [NAME_1]. Several times [NAME_2] directed comments towards [NAME_1], She appeared not to comprehend a lot of what was said to her by [NAME_2]. As [NAME_2] departed the gate I said to [NAME_1], "[NAME_1], you shouldn't let him say things like that to you. I would certainly have smacked him in the gob if he had said those things to me". She said, "what things". I said, "Do you understand any of the things he was saying to you?" She said "No". I said, "[NAME_1], when he says he gets a hard on every time you answer the phone to him, it means he gets a hard penis or an erection". She said, "Oh my God", and became extremely upset. After I explained the meaning of several other innuendoes and comments [NAME_2] had made, [NAME_1] became quite distraught. She was so upset she refused to answer the telephone the rest of her shift and she became weepy and very emotional. I felt very bad and sorry for [NAME_1] as she is a very nice, sensitive and naïve person who would not intentionally hurt or insult anyone. This is not the first incident with [NAME_2] and there have been a few more since [NAME_1] first approached the [NAME_20] regarding this matter. I have personally witnessed a few and I have seen the state that [NAME_1] gets into after an encounter with [NAME_2], not only can she no longer function in her assigned post, she gets so upset she stresses out." 53 In relation to the incident at the [NAME_33] on 13 December 1997, [NAME_1] relies on the evidence of [NAME_36], in particular his observations of her distressed state and the nature of her complaint to him. [NAME_36] said that for approximately 19 months until 27 December 1997 he worked as a Prison Officer at [NAME_18], and that at the time he was the local delegate as well as the Secretary for the State Executive Committee of the Prison Officers' Union, the union to which [NAME_1] belonged. 54 He said that early in the morning, before 9 o'clock, [NAME_1] asked him to come to the [NAME_33]. When he arrived, there were several other prison officers in the office who were on duty in the [NAME_33]. He observed that [NAME_1] was visibly distressed and that she appeared to have been weeping. She told him that there had been an incident involving [NAME_2] shortly beforehand. [NAME_36] said she described the details to him in the visit room adjacent to the [NAME_33] and that she also complained to him that [NAME_2] had also made rude and sexual remarks to her. She did not give any details. 55 [NAME_36] gave evidence that over a period of several months before the incident in December 1997 at the [NAME_33], [NAME_1] had complained to him (more than once) that [NAME_2] had made suggestive sexual remarks, told sexual jokes, and made sexual innuendoes through joking remarks to her. [NAME_36] also said that 4 or 5 other female staff had also complained to him over the previous months about similar conduct, and that all of the staff members, including [NAME_1], had found the remarks and the jokes offensive. 56 [NAME_36] said that [NAME_2] was well known among staff for his sexual innuendoes and sexual jokes, and that he had personally heard him crack inappropriate jokes of a sexual nature to the female staff on a regular basis. He had not heard him make derogatory remarks to [NAME_1]. 57 He said he had observed [NAME_2] to occasionally stand very close to the female prison officers, particularly the younger junior officers. In cross-examination, he said he viewed his "spatial relationship to the female officers" as inappropriate. 58 [NAME_36] gave evidence that he had previously spoken to [NAME_21] about the complaints that staff had made in relation to [NAME_2]'s sexual innuendoes and jokes. He recalled that he had spoken to [NAME_21] on at least three occasions over a number of months prior to the [NAME_33] incident. He said the last occasion had been about one month earlier. In cross-examination, he said that on the occasions he had spoken to [NAME_21] about the complaints from other staff members, he had also mentioned that complaints had been made about [NAME_2]'s "spatial relationship to the female officers". 59 The following exchange occurred when [NAME_36] was giving his evidence in chief: Q: . . . And can you, to the best of your recollection, taking the first occasion, can you recall what you said to him? A: Not specifically, except to say that the staff member whom I was talking about, and there were several, was offended by the remarks and the behaviour and that [NAME_21] needed to take some action to prevent it from recurring. Q: And do you recall what [NAME_21]'s response was? A: [NAME_21] explained to me that he was aware of the incidents but that no staff were willing to make a formal complaint so he was unable to proceed formally. But also that he has spoken to [NAME_2] in general terms, I believe. . . . Q: Can you remember anything else about that conversation? A: It appeared to me that [NAME_21] was frustrated." 60 In relation to the lodging of a formal complaint, [NAME_36] said the following: "Prison Officers are notoriously reluctant to make formal complaints about their managers and prefer to discuss matters with me and have me refer the matter to the [NAME_20]. Part of the reason is that Prison Officers can be in dangerous or vulnerable situations and need back up, and there is some concern that if complaints are made against a fellow officer, the backup may not be as forthcoming as it ought." (See Exhibit 6.) 61 In relation to the "September" [NAME_33] incident, [NAME_1] relies on the evidence given by [NAME_26] that she made a contemporaneous complaint to him about [NAME_2]'s conduct towards her on that day. [NAME_26] said in his statement of evidence, dated 19 February 2001 (Exhibit E), that after [NAME_1]'s conversation with him he "advised the [NAME_20] and the [NAME_20] of its contents". 62 In cross-examination, he said that he thought he had informed [NAME_22] and that "she in turn would've ensured the [NAME_20] would've been made aware of it". He conceded that he may have told [NAME_22] about the incident immediately after [NAME_1] had discussed it with him. He also agreed that the incident may have occurred months before December rather than weeks. He said that he would have told "them" (ie the [NAME_20] and the [NAME_20]) that [NAME_1] didn't want to proceed on paper and that she had indicated that she wasn't sure what to do. He stated that he briefed "them" because although he had an obligation to [NAME_1], there were wider obligations to other staff and the running of the gaol. 63 In his record of interview with [NAME_25] on 1 May 1998, [NAME_26] said that when [NAME_1] complained to him about the "September" [NAME_33] incident, she was "in a very distraught state, teary eyed and shaking". He also stated that he had advised her of the courses of action that she could take in relation to the incident, viz "one to make a formal complaint to the [NAME_20] to be dealt with locally, and if the need be it could go further than that, perhaps outside the Department". He also told [NAME_25] that [NAME_1] had stated that she did not want to cause trouble and would not take any action at present. He further said that he had informed the [NAME_20] of the incident and that she had said that she would speak to [NAME_1] in relation to the matter (Exhibit C, pp 224 – 225). 64 [NAME_26] then added the following words in his record of interview:

"A significant period of time lapsed between that particular incident and an incident, that I think was in December last year, when again [NAME_1] presented to my office in a very distraught state and actually turned on her heel and went away, I followed her to the gate area where the staff sign on, and made inquiries about why she was so upset. She then told me of an incident that had taken place earlier that morning where Area Manager, [NAME_2] had made comments about not being able to understand her." (Exhibit C, p 225.)

65 [NAME_22] said in her statement of evidence, dated 19 February 2001 (Exhibit D), that some weeks prior to December 1997 [NAME_26] informed her and [NAME_21] that [NAME_1] had spoken to him about an incident whereby [NAME_2] had said to [NAME_1] words to the effect that he gets a "hard on" when she speaks to him. She said that she did not pursue the matter because [NAME_26] had advised her that [NAME_1] did not wish any action to be taken. In cross-examination, she said that she did not think that [NAME_26] had spoken to her about the incident "some months before December 1997". However, she conceded that her recollection of exactly when it occurred was "fairly vague". 66 She agreed, in cross-examination, that the incident had been disclosed to the [NAME_20]. However, she could not recall whether she had personally told him. She said that no action could be taken because [NAME_1] had not lodged a formal complaint. She also said that, from recollection, [NAME_1] was not with [NAME_26] when he told her about the incident. When asked whether she had said, "that's not very nice is it", she said that she did not think so, although she "may have". 67 It is [NAME_21]'s evidence that he did not become aware of the "September" [NAME_33] incident until he interviewed [NAME_1], in the presence of [NAME_22], on 19 December 1997 in relation to her written complaint dated 17 December 1997 (Exhibit F, Annexure C). In his statement of evidence, dated 15 February 2001, he said the following: "Some weeks prior to December 1997 [NAME_1] spoke to me about problems she was having with [NAME_2]. [NAME_1] did not describe to me any specific incident. She did not describe to me any specific words he may have said to her or any specific deeds he may have committed. I recall she stated to me to the effect that he had been rude to her and that he was making rude jokes. [NAME_1] did not ask me for allocation of duties or rostered hours which could have limited or eliminated contact with [NAME_2]. I encouraged [NAME_1] to record any complaint she may have about [NAME_2] and present it to me, so that I could assess what intervention, if any, was necessary. I considered [NAME_1]'s approach to me informal to the degree that I did not record it in my [NAME_20]'s journal of daily activities. Around that time [NAME_37] also spoke to me about [NAME_1] and [NAME_2]. [NAME_26] advised me to the effect that [NAME_1] did not wish further action. From that conversation I understood that [NAME_26] had spoken to [NAME_2] about it." (Exhibit F.) 68 In cross-examination, [NAME_21] was asked whether the conversation with [NAME_1] (referred to above) could have occurred within months of December 1997. He said it was within weeks rather than months. However, when asked about the conversation he had with [NAME_26] "around that time", he said that it was possible that it had been in September 1997. He said, "I can't recall the dates, so many people come to me". He also said that when [NAME_26] came to see him, he had just said that [NAME_1] had a problem with [NAME_2]. He said he had not asked [NAME_26] what the problem was because "it would have breached confidentiality". According to [NAME_21]'s evidence, [NAME_26] had said to him something like, "oh there's a bit of a problem between [NAME_1] and [NAME_2] but I've spoken to him". 69 [NAME_21] also said that it was possible that [NAME_1] had spoken to him in the month or two prior to September 1997 about the problems she was having with [NAME_2]. However, he disagreed that it had been raised by [NAME_1] in the context of her request for a transfer to [NAME_30]. When asked whether [NAME_36] had come to him in 1997 and told him that members of staff had approached him about [NAME_2] making sexual jokes and innuendoes, he said that was correct but that he had told [NAME_36] that without a written complaint he couldn't do anything. Later in cross-examination, he said that he could not recall [NAME_36] saying that the complaints were of a sexual nature. He said it was possible that [NAME_36] had come to him around the same time that [NAME_1] and [NAME_26] had come to see him. 70 [NAME_21] also said that although he had spoken to [NAME_2] about many matters, he did not speak to him between mid 1996 and the [NAME_33] incident about his relations with female members of staff. He described [NAME_2] as "a pompous, rude person" and said that people complained about him. Equally, he said people complained about another executive officer because he was too soft. In relation to the requirement that a complaint be in writing before any action could be taken, he said: "I think people have the right to complain whether they put it on paper or not, but whether it is substantial or not is the matter and I personally believe that unless they put it down on paper then there is no substance in it." 71 [NAME_39] gave evidence that she was present as an observer in a support role during [NAME_1]'s interview with [NAME_25] on 17 March 1998. At the time, [NAME_39] was a Superintendent in Operations and she was also working with the Women's Operational Support Program (which looked at improving conditions for female staff). She said in her statement of evidence dated 15 November 2000 (Exhibit 8), that [NAME_1] was quite a strong and forceful woman in the early stage of her complaints to her but by late 1999, she could barely have a conversation with her without [NAME_1] crying. She expressed the opinion that [NAME_1] seemed to lose her confidence over that 12 month period. 72 [NAME_39] also said that after [NAME_2]'s transfer out of [NAME_18] (in March 1998), [NAME_1] called her on occasions to talk through any issues she still had. [NAME_1] informed her that she still felt uncomfortable at [NAME_18] because "there may be repercussions from other senior officers". [NAME_39] said that was a reasonable concern because the "CSD has a culture where if a complaint is made, there is likely to be retaliation from other officers, including the officer against whom the complaint is made". 73 [NAME_2] gave evidence denying that he had ever sexually harassed [NAME_1] or discriminated against her on the ground of her sex. He said that he had held the commissioned rank of Senior Assistant Superintendent since February 1993, and that within a correctional [COMPANY_19] his rank placed him in a position of third officer in charge. In February 1994, he was transferred to [NAME_18], firstly as Staff Officer for approximately 11 months and then as an Area Manager. This was a management position which placed him in a position of responsibility for one of three separate areas within the [COMPANY_19]. His role involved the direct supervision of over 40 staff members and up to 80 inmates at any one time. In December 1997 he had been Area Manager for nearly 3 years, having worked in all of [NAME_18]'s designated areas during that time. 74 He said that, as of December 1997, he was Area Manager of the [COMPANY_19]. His duties involved direct supervision of about 45 staff, including rostering, as well as oversighting inmate visits and movement through the main gate. He was also responsible for conducting staff parades and at times a reception discharge of inmates into and out of the [COMPANY_19]. 75 He also said that the position of First [NAME_17] held by [NAME_1] was a non-commissioned rank, three grades below his own. She had been under his supervision at various times throughout his years as Area Manager and had been assigned to the [COMPANY_19] since May 1997. 76 He described [NAME_1] as being "barely competent" in most areas of her duties, with a poor understanding of her role. Based on his own experience as well as comments made by other officers and inmates, he found her to have a highly volatile temper and, depending on her moods, to be loudly abusive towards her peers, inmates, visitors and management staff. He said that numerous complaints had been lodged by inmates against her for swearing at them, abusing them, and yelling and screaming at them. He did not give specific details of these complaints. In his report to [NAME_24] dated 19 January 1999 in relation to the [NAME_33] incident, he said the following: "[NAME_1]'s insolence and insubordination towards a far more senior officer of the Department was deplorable. The fact that she followed up this attack with a written complaint and more lies (lies that she continued to add to as the whim took her), is even more reprehensible. . . . I was advised by the [NAME_20] that [NAME_1] had lodged a complaint about the incident, and her version of events was very far removed from what actually occurred. In her very short report she also alleged I had made a sexual remark to her. This is completely untrue, and I believe [NAME_1] included this scurrilous accusation namely to cause me discredit. . . . Both of [NAME_1]'s ROIs [Records of Interview] and her written complaint are filled with inaccuracies, inconsistencies and deliberate lies. . . . [NAME_1] has a well known history of verbally abusing any person she finds fault with, irrespective of rank or station." 77 [NAME_2] was cross-examined about the circumstances which led to him receiving a letter of warning from [NAME_24], dated 2 July 1997, in respect of various alleged breaches of discipline relating to the sexual harassment of a Prison Officer named [NAME_40] (in 1996). [NAME_11] put the following paragraph of [NAME_24]'s letter to him: "While I have decided not to proceed with formal disciplinary action, I have decided to issue you with this letter of warning. The reason for my decision is that while your conduct towards officer [NAME_40] may not have amounted to breaches of discipline, it was, nonetheless, far from satisfactory. At the time you decided to declare your feelings towards [NAME_40] by giving to her two letters you have admitted writing, you were her supervising officer and had taken upon yourself the role of counsellor. There is considerable difference in rank between you.

For these reasons alone you should have been very careful and circumspect in your behaviour towards her." In responding to the letter, [NAME_2] said that when he first received it he did not accept that he deserved a warning because the seven charges of sexual harassment had been dismissed. 78 In essence, [NAME_2] said that [NAME_1], [NAME_27], [NAME_26] and [NAME_21] had not told the truth in relation to [NAME_1]'s allegations. 79 In cross-examination, he agreed that some of the sexual jokes he told were risqué, smutty, and contained "blue language" but, in the context of the type of work prison officers are engaged in, he said he did not regard the jokes as inappropriate. He also said that no one had ever indicated to him that they were offensive. 80 [NAME_2] called three witnesses in his case, all of whom said that [NAME_1] had been aggressive and abusive towards inmates and fellow officers. They did not provide specific details. [NAME_42] and [NAME_43] said that [NAME_2] had never made any suggestions of a sexual nature to them. In relation to [NAME_1]'s allegations of sexual harassment, we did not find either their evidence or that of [NAME_44] to be of any real probative value. 81 [NAME_45] did not dispute that [NAME_1] had been sexually harassed in the manner alleged. Indeed, she submitted that the Department's inquiry into the "September" [NAME_33] incident supported the Applicant's case that she had been sexually harassed. However, relying on s 53 of the Act, she submitted that the evidence did not support a finding of liability against the First Respondent. She placed particular reliance on the evidence of [NAME_21], [NAME_22], [NAME_26] and [NAME_44]. 82 [NAME_44], the Acting Superintendent of the [NAME_46], gave detailed evidence of the First Respondent's publications and training policies in relation to the prevention of harassment, including sex based harassment (see Exhibit G). She referred to the First Respondent's "Prevention of Harassment Policy and Guidelines", dated 9 April 1997. Paragraph 1.8 of the document states: "Supervisors and managers have a responsibility to provide a workplace that is free from harassment and to deal with any complaints or grievances promptly, impartially, fairly and confidentially (see the Grievance Resolution Policy and Procedures ['the Grievance Procedures'] ).". In cross-examination, [NAME_44] agreed that responsibility for the prevention of workplace sexual harassment rested with the [NAME_20], the [NAME_20], the Area Managers and the Senior Correctional Officers. 83 In cross-examination, she said that the Grievance Procedures would normally be available from the Staff Officer or the [NAME_20]. She also said that they did not require the lodgement of a written complaint and that a verbal complaint could be acted on. If, however, disciplinary action were sought, she said a written complaint would be necessary. Our Findings 84 In urging us to prefer [NAME_2]'s evidence to that given by [NAME_1], [NAME_16] submitted that it defied commonsense that [NAME_2] would have called [NAME_1] "a fucking wog" (sometime in the first half of 1997) and then make sexual advances to her after this time. We do not accept this submission. According to [NAME_21], [NAME_2] was known as a pompous, rude person. We do not consider it to be inherently unlikely that he would have behaved in the manner alleged by [NAME_1]. 85 We found [NAME_1] to be an honest, credible and, generally speaking, a reliable witness. Notwithstanding the considerable emotional strain she was under, she was not shaken in cross-examination in relation to any material evidence. We have reached the view that her evidence should be accepted in preference to that of [NAME_2] without the need to have recourse to either the untested account given by [NAME_27] in relation to the "September" [NAME_33] incident or the warning given to [NAME_2] in respect of his conduct towards [NAME_40]. In reaching this view, we have applied the standard of proof referred to in para 29 above. 86 Support for the conclusion we have reached can be found in the evidence of [NAME_26] and [NAME_36]. We do not accept [NAME_2]'s evidence that [NAME_26] was not a truthful witness. On the contrary, we found him to be an honest, reliable and frank witness who gave his evidence in a very straightforward manner. We are satisfied that his evidence can be safety accepted. Equally, we had no difficulty in accepting the evidence of [NAME_36]. 87 [NAME_1] gave evidence that immediately after the "September" [NAME_33] incident she became very upset. When [NAME_26] was interviewed by [NAME_25] on 1 May 1998, he told her that when [NAME_1] had complained to him about this incident she was in a very distraught state and that she was teary eyed and shaking. This resulted in a complaint about the specific incident being made to [NAME_22]. [NAME_21] was also advised of the incident. However, there is conflicting evidence as to when and what he was told, and by whom. We discuss this in greater detail later. 88 [NAME_1]'s evidence of [NAME_2]'s conduct towards her is consistent with [NAME_36]'s evidence that over a period of several months before the [NAME_33] incident she complained to him (more than once) that [NAME_2] had made suggestive sexual remarks to her. Her evidence is also consistent with [NAME_36]'s own observations of the manner in which [NAME_2] related to female officers generally. 89 To the extent that contemporaneous complaints were not made in relation to each incident of Mr [NAME_3]'s conduct, we find that this was generally attributable to [NAME_1]'s reluctance to make a complaint against a senior officer, particularly a Senior Assistant Superintendent. In circumstances where she was scared of [NAME_2] (and his authority) and feared that adverse repercussions could flow from any written record being made of her complaints, we find her reluctance entirely understandable. In this respect, her evidence was supported by that of [NAME_36] and [NAME_39]. 90 While we found much of [NAME_21]'s evidence was given in a frank and straightforward manner, parts of it were lacking in credibility and reliability. On those occasions where it was in conflict with that given by [NAME_1], we preferred her evidence. Was [NAME_2]'s Conduct Unlawful? 91 In relation to the conduct which post-dated the amendments to the Act in July 1997 (by Act No. 9 of 1997), we find that [NAME_2] is personally liable within the meaning of s 22B(2) of the Act. We find that he engaged in unwelcome conduct of a sexual nature in relation to [NAME_1], in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that [NAME_1] would be offended, humiliated or intimidated (s 22A(b)). 92 Prior to the July 1997 amendments, it was not possible to lay a complaint against a fellow employee. [NAME_2] could only be joined to the proceedings and in turn become the subject of a Tribunal order through the operation of s 53 of the Act and / or the common law.

Accordingly, in order to find [NAME_2] liable for the conduct which predated the 1997 amendments, it is necessary to first consider the liability of the First Respondent for the acts of sexual harassment committed by [NAME_2]. Liability of the First Respondent 93 The Applicant submits that the First Respondent is liable for [NAME_2]'s conduct by virtue of the operation of the common law and / or s 53 of the Act. We discuss these in turn below. Personal Liability - The Common Law Position 94 In [COMPANY_4] (1988) EOC 92 – 229 the then Equal Opportunity Tribunal ([NAME_47] presiding) discussed the various ways in which an employer could be found to have personally breached s 25(2) of the Act. At 77, 173 the Tribunal listed the following four ways (adding that the list was not intended to be exhaustive): (1) Where the relevant discriminatory act or conduct is personally performed by the employer. (2) Where, in the case of an incorporated entity, the relevant discriminatory act or conduct is performed by a senior official whose conduct is to be identified as being that of the incorporated entity because he or she represents the "mind or will" of that entity. (3) Where the relevant discriminatory act is that of a person or persons whose duty it is to, or who customarily or usually has the function of, afford(ing) terms and conditions of employment to the employee alleging discrimination. (4) Where the relevant discriminatory act or conduct is that of employees not in any of the three earlier categories, but whose conduct is known to any of the persons in those categories and, by active condonation or inactivity, no prompt or adequate steps are taken by or on behalf of those in any of the first three categories to rectify the adverse working conditions thus afforded to the employee. 95 In [NAME_6] v [COMPANY_7] the Tribunal ([NAME_47] presiding) at 78, 147 expanded upon the third category listed above by giving examples of the duties carried out by an employee who customarily or usually has the function of affording terms and conditions of employment to the employee alleging discrimination. The examples given were "dismissal or transfer, or the supervision and / or provision of the day-to-day working environment". 96 The Applicant submits that [NAME_2] falls into the third category listed in [COMPANY_4] on the basis that he was responsible for the supervision of the day-to-day working environment of [NAME_1]. Relying on the evidence of [NAME_26], the Applicant submits that a Senior Assistant Superintendent is responsible for providing a workplace environment free from harassment and one which is safe for all staff and personnel entering that area. She also relies on the evidence of [NAME_22]. In cross-examination, [NAME_22] said that the Area Manager of the [COMPANY_19] was responsible for the day-to-day supervision and work performance of the officers in that area, including the [NAME_33]. She also said that the Area Manager reported to the [NAME_20] and the [NAME_20]. 97 The evidence of [NAME_26] and [NAME_22] referred to above is consistent with that given by [NAME_2]. He said that as of December 1997, he had been Area Manager for nearly three years and that [NAME_1] had been under his supervision at various times over that period. 98 At the time of the two [NAME_33] incidents, it is clear that [NAME_2] was the Area Manager of the [COMPANY_19] and that [NAME_1] was under his supervision. In relation to the incidents of sexual harassment which occurred from mid 1996 to May 1997, the position is not entirely clear. When she worked as the [NAME_20]'s Clerk in the first half of 1997, it is reasonable to conclude that [NAME_22] was generally responsible for her day-to-day supervision unless, in her absence, [NAME_2] or another Senior Assistant Superintendent was [NAME_20]. During the relevant period in 1996, [NAME_1] said she worked in the reception area of the gaol. The evidence is unclear as to who was her supervisor. 99 We are satisfied that from May 1997 to the end of December 1997, [NAME_2] was responsible for [NAME_1]'s day-to-day supervision.

Accordingly, we find that he falls within the third category of [NAME_4] and a fortiori, the fourth category. It follows that we are satisfied that the First Respondent is personally liable for the incidents of sexual harassment which occurred during that period. 100 In relation to the incidents of sexual harassment falling outside the abovementioned dates, we are satisfied that [NAME_2] falls into the fourth category and, therefore, that the First Respondent is personally liable for the incidents of sexual harassment which occurred during that time. 101 The findings set out in paras 102 – 109 below lead to the conclusion that the conduct of the First Respondent's most senior officers at [NAME_18] can safely be construed as conduct amounting to both "inactivity" and "active condonation". 102 [NAME_21] was on notice from about August 1996 that, in relation to [NAME_40] at least, [NAME_2] had displayed a lack of professional judgment in his dealings with a female member of staff. 103 Sometime in 1997, [NAME_21] was on notice that female members of staff had made informal complaints about [NAME_2]'s sexual innuendoes and jokes. * [NAME_36] said that in 1997 he had spoken to [NAME_21], on at least 3 occasions, about the complaints that female members of staff had made to him in relation to [NAME_2]'s sexual innuendoes and jokes. [NAME_21] agreed that [NAME_36] had spoken to him about these complaints. However, we found his evidence on this point to be somewhat vague and internally inconsistent. Where his evidence differed from that given by [NAME_36], we had no difficulty accepting [NAME_36]'s evidence.

104 Shortly after the "September" [NAME_33] incident, both [NAME_21] and [NAME_22] became aware of [NAME_1]'s complaint that [NAME_2] had said to her words to the effect that he gets a "hard on" when she speaks to him. * It is [NAME_21]'s evidence that he did not become aware of the specifics of this complaint until 19 December 1997. We do not accept this evidence. It is inconsistent with the evidence given by [NAME_26] and [NAME_22]. Moreover, it is inherently unlikely that [NAME_21] would not have sought details of the complaint, particularly in circumstances where [NAME_1] had indicated to him that she was having problems with [NAME_2]. We are also satisfied that the relevant incident occurred in September 1997 (as was suggested by [NAME_1]) rather than "weeks before December 1997".

105 Apart from the [NAME_40]' matter, from mid 1996 through to December 1997, [NAME_21] never spoke to [NAME_2] about his relations with female members of staff. * [NAME_36]'s evidence suggests that [NAME_21] said to him that he had spoken to [NAME_2], in general terms, about the complaints made by female officers, [NAME_21] denied that he had ever spoken to [NAME_2] about his relations with female members of staff. Similarly, [NAME_2] did not suggest in his evidence that he had done so. We accept their evidence on this point.

106 Prior to the [NAME_33] incident, [NAME_21] took no action on the complaints made about [NAME_2] because of the mistaken belief that no steps could be taken unless a written complaint was lodged. This was a belief shared by [NAME_26] and [NAME_22]. * The Grievance Procedures were not in evidence. However, [NAME_44] said that the Procedures did not require that a written complaint be lodged; a verbal complaint could be acted on. She outlined various steps that could be taken to resolve a grievance without the need for a formal complaint to be lodged. She said that the steps taken would very much depend on the particular grievance and the "issues" involved.

107 Throughout the relevant period, the First Respondent's policies concerning sexual harassment in the workplace were not properly implemented by [NAME_21], [NAME_22] and [NAME_26]. * [NAME_44] said that in accordance with the Grievance Procedures, [NAME_18] was required to have a designated grievance officer. She also said that this officer would usually be the Staff Officer, and that the [NAME_20] and the [NAME_20] should have been familiar with the Grievance Procedures and been clear as to who was the designated grievance officer and what was their role. When cross-examined on the point, [NAME_26] said that he was not the designated grievance officer and he could not recall who was. When [NAME_22] was asked whether she knew what a grievance contact officer was, she said she did not know.

108 We do not suggest that [NAME_21] should have breached [NAME_1]'s confidentiality by providing [NAME_2] with details of the [NAME_33] incident (or any other incident) without her consent. However, against a background where [NAME_1] had complained on several occasions to him about the problems she was having with [NAME_2] (albeit without providing specific details); where he had been told by [NAME_36] about the complaints he had received from female members of staff in relation to [NAME_2]'s conduct; where he was aware of the warning given to [NAME_2] in relation to [NAME_40]; and where it was common knowledge that prison officers were extremely reluctant to make formal complaints about their managers, we find the First Respondent's conduct amounted to both "inactivity" and "active condonation". 109 In the circumstances, it was incumbent upon [NAME_21] to communicate to [NAME_2] the importance of the First Respondent's sexual harassment policies, and the importance of not engaging in conduct which might be classified as sexual harassment and which might contravene the relevant provisions of the Act. This could have been done without breaching the confidentiality of either [NAME_1] or the other female officers who had complained to [NAME_36]. 110 In the event that we are wrong in finding the First Respondent personally liable for the conduct of [NAME_2], we now turn to discuss whether the First Respondent is vicariously liable pursuant to s 53(1) of the Act. Section 53 of the Act 111 Section 53 relevantly provides: "53 Liability of principals and employers (1) An act done by a person as the agent or employee of the person's principal or employer which if done by the principal or employer would be a contravention of this Act is taken to have been done by the principal or employer also unless the principal or employer did not, either before or after the doing of the act, authorise the agent or employee, either expressly or by implication, to do the act. (2) If both the principal or employer and the agent or employee who did the act are subject to any liability arising under this Act in respect of the doing of the act, they are jointly and severally subject to that liability. (3) Despite subsection (1), a principal or an employer is not liable under that subsection if the principal or employer took all reasonable steps to prevent the agent or employee from contravening the Act. . . . . " 112 It is the First Respondent's case that: * It did not authorise the conduct in question either before or after the conduct occurred. * If found to have authorised the conduct in question, it took all reasonable steps to prevent [NAME_2] from contravening the Act.

113 It is well established that s 109 of the Act imposes an onus upon the First Respondent to prove the absence of authority contemplated by s 53(1): Shellharbour Golf Club v Wheeler [1999] NSW SC 224; Samuels Real Estate v Lamb & Anor (1998) EOC 92 – 923. In the latter case [NAME_38] J said at 78, 148: "Section 53 expressly provides that a principal or employer can authorise an act by an agent or employee, either before or after the doing of the act. Under s 53, the onus on the issue of authorisation is cast on the principal or employer; it is for the principal or employer to establish that it did not authorise the act of the agent or employee." 114 In [NAME_48] v [NAME_50] J gave a broad interpretation to the word "authorise" in s 53(1) of the Act. His Honour said at para 58: "The decision in University of New South Wales v [NAME_5] [(1974-75) 133 CLR 1] has been much followed in copyright cases and the broad concept of 'authorise' . . . has been frequently applied for the purposes of statutory construction under the copyright legislation. For present purposes, bearing in mind the nature of the Anti-Discrimination Act, I consider that the word 'authorise' should be given an equally broad meaning to that given to the word in the copyright cases.

Accordingly, it seems to me that for the purposes of s 53 the word 'authorise' embraces 'sanction, approve, countenance and permit'. Permission may be inferred from inactivity and indifference where the person sought to be made liable is aware that some particular behaviour may occur." 115 Based on our findings in paras 102 – 109 above, we are not satisfied that the First Respondent has established that it did not authorise [NAME_2]'s conduct. 116 Equally, based on our findings in paras 102 – 109 above, we are not satisfied that the First Respondent has established that it took all reasonable steps to prevent [NAME_2] from contravening the Act. Liability : Conduct before 4 July 1997 117 It is widely accepted that although the Act did not specifically make sexual harassment unlawful until the 4 July 1997 amendments, prior to that time such conduct could constitute unlawful discrimination on the ground of sex within the meaning of s25 of the Act : O'Callaghan v Loder; Hill v Water Resources Commission (1985) EOC 92 –127; Shellharbour Golf Club v Wheeler [1999] NSWSC 224. 118 We are satisfied that the conduct the Applicant was subjected to was both unsolicited and unwelcome. We are also satisfied that the Second Respondent either knew or, ought to have known, that his conduct was unwelcome. We find that the harassment the Applicant was subjected to produced an offensive, intimidating and sexually permeated work environment which was sufficiently pervasive to adversely affect the terms and conditions of her employment. Moreover, she was clearly placed under a disadvantage as to a matter of substance, as distinct from a trivial matter, which resulted in her being subjected to a detriment. 119 Accordingly, we find that the conduct complained of constitutes both a discriminatory condition of employment, within the meaning of s 25(2)(a), and a detriment within the meaning of s 25(2)(c). We further find that the Applicant was treated less favourably than male employees were or would have been treated in circumstances that were the same or not materially different within the meaning of s 24(1)(a). 120 We are satisfied that pursuant to both ss 25(2)(a) and 25(2)(c), the First Respondent is liable for the Second Respondent's discriminatory conduct. The Second Respondent's liability under s 25(2) arises by virtue of the operation of s 52 of the Act. We are satisfied that he is a person who caused the First Respondent to do an act which was unlawful pursuant to ss 25(2)(a) and 25(2)(c). 121 Accordingly, we find that both respondents are liable, jointly and severally, in respect of the contravention of the Act (s 53(2)). Liability : Conduct after 4 July 1997 122 We have previously found the Second Respondent to be personally liable for sexually harassing the Applicant within the meaning of s 22B(2). We also find that, pursuant to s 22B(1), the First Respondent is liable for the Second Respondent's conduct. 123 Accordingly, we find that both respondents are liable, jointly and severally, in respect of the contravention of the Act. RACE DISCRIMINATION Relevant Provisions of the Act 124 Sections 7(1) and 7(2) relevantly provide: "7 What constitutes discrimination on the ground of race (1) A person ( the perpetrator ) discriminates against another person ( the aggrieved person ) on the ground of race if, on the ground of the aggrieved person's race . . . , the perpetrator: (a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of a different race . . . (2) For the purposes of subsection (1)(a) . . ., something is done on the ground of a person's race if it is done on the ground of the person's race, a characteristic that appertains generally to persons of that race or a characteristic that is generally imputed to persons of that race." 125 Section 8(2) of the Act provides: "8 (2) It is unlawful for an employer to discriminate against an employee on the ground of race: (a) in the terms or conditions of employment which the employer affords the employee, (b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or (c) by dismissing the employee or subjecting the employee to any other detriment." The Evidence 126 The Applicant's case relies on two specific incidents. The first incident, according to [NAME_1]'s evidence, occurred when she was working as the [NAME_20]'s Clerk in the first half of 1997. She said [NAME_2] came into her office one morning and handed her a pile of paperwork to process. As he was leaving her office, she called him back and said words like: "Where do you want this paper to go?" She said he grabbed the papers from her hand, saying: "You're nothing but a fucking wog." She said he sounded frustrated and angry when he said this. 127 She gave evidence that she told [NAME_22] about the incident approximately an hour later. She recalled that [NAME_22] had said she would speak to him, and that later that afternoon [NAME_2] returned to her office and said to her: "I'm sorry I was only joking." 128 When she described the incident to [NAME_25] in her record of interview on 17 March 1998, she said that she went to see [NAME_22] because she was upset. The interview reads: "She [[NAME_22]] said: 'Do you want it on paper?' I said: No, I would like someone to speak to him why he speaks to me like that. . . . In the afternoon he came and apologised. He said: "I was only joking.' I said: 'No you were not. Your face was all red and you don't talk like that.'" 129 [NAME_22] gave evidence that she had no recollection of [NAME_1] complaining to her about such an incident. In cross-examination she conceded that it was possible that she had told her but that she could not remember it. 130 [NAME_2] was also cross-examined in relation to the incident. He denied that he had said to [NAME_1] that she was "nothing but a fucking wog" and that he had apologised to her. 131 The other incident relied on by the Applicant is the [NAME_33] incident. She gave evidence that on 13 December 1997, at about 8.00 am, she was standing in the gate control office when [NAME_2] announced the 8 o'clock parade for staff commencing duty at that time. She said that when she told [NAME_2] that [NAME_27] was upstairs in the Roster Clerk's Office, he was standing directly in front of her about one metre away. After saying the word "what" to her in a sharp tone with a quizzical look on his face, [NAME_1] said she repeated that [NAME_27] was upstairs, and walked away from him. As she did so, she heard another officer say "[NAME_1] said [NAME_51] is upstairs". She said [NAME_2] followed her and when he placed his left hand on her shoulder, she turned around whereupon he said in a loud voice, "Why can't you speak English". She said he was waving his hands around and smiling, and that she considered he had spoken to her in an offensive manner by treating her as a fool and by laughing at her. 132 When she said to him, "I spoke very clearly to you, why can't you understand me", she said that she was upset and her voice was shaking. She said he responded by saying, "[NAME_1] why don't you go and learn how to speak English, you are in Australia now not in your country, so start learning English.". When she replied, "I've been in this job for years and I haven't had any problems", she said [NAME_2] said: "No, no, no one can understand you." At the time, she said there were approximately 10 – 15 other officers within 5 metres and that some of them walked out during the conversation. 133 In her statement of evidence, dated 13 March 2001 (Exhibit 2), she described the impact on her of [NAME_2]'s conduct in the following way: "When I spoke to [NAME_2] I spoke to him in the way I normally speak to everybody. I did not raise my voice to him. He spoke to me in a way that made me feel ashamed of myself and he's upset me very much. I also saw that he was laughing at me. In the entire time that I have worked for the Department no one else has ever questioned my ability to speak English or referred to my ethnic background." 134 [NAME_1] said that a short time after the incident, she complained to [NAME_21] about [NAME_2]'s remarks. In due course, she wrote out a written complaint on 17 December 1997 and gave it to [NAME_21] the following day. 135 [NAME_21] said that when he interviewed [NAME_2] on 19 December 1997 about [NAME_1]'s written complaint, he agreed that he had made a remark about [NAME_1]'s country of origin but it was said purely in fun and the "spirit of the moment". [NAME_21] said that [NAME_2] agreed to verbally apologise to [NAME_1] in relation to the racist remarks, but not the sexual comments. 136 In his memorandum to the Professional Standards Unit dated 6 January 1998, [NAME_21] expressed the opinion that when he saw [NAME_1] in his office on 13 December 1997 she was "extremely upset" and in tears. The memorandum reads: "I asked [NAME_1] what the problem was. She said something like 'this is not the first time he has done this, I want something done, I can't work under these type of conditions.'" 137 [NAME_36] and [NAME_26] also gave evidence that on 13 December 1997 they observed [NAME_1] to be visibly distressed. [NAME_36] said that he arrived at the [NAME_33] early in the morning after receiving a call from [NAME_1]. When he arrived, she appeared to have been weeping. He also said she described the incident to him which had occurred with [NAME_2]. His statement of evidence dated 15 November 2000 reads as follows: "She said words to the effect 'He pretended not to understand what I was saying and then he mimicked my accent and told me that I should learn to speak English'. I think she said that she objected to what he said and that he then repeated what he had done previously – mimicked her accent. I asked her if she thought he was joking, and she replied 'No'. She asked me what she could do about it. She said words to the effect 'He has done this before to me, and he is doing it again and I am sick of it'." 138 In his record of interview with [NAME_25] on 2 July 1998, [NAME_26] said that when discussing the [NAME_33] incident with him, [NAME_1] "ventilated quite a lot of animosity directed towards [NAME_2]", as well as recalling other incidents that had led up to or were significant to her in the past. He said: "I think that she was seeking guidance, that's my interpretation as to whether her complaint would be treated [as] valid by the administration of the [COMPANY_19], and she expressed concern about the reaction from her peers if she did proceed with a formal complaint. . . ." 139 [NAME_26] gave evidence that he held the same rank as [NAME_2] and, therefore, that he had no authority to discipline him. He said in his capacity as Staff Officer, he had heard that [NAME_2] had made some inappropriate jokes, and that around the time that [NAME_1] spoke to him about the "September" [NAME_33] incident, he spoke to him about the jokes and advised him to the effect that he needed to be careful and considerate with the use of language. 140 In his record of interview with [NAME_25], [NAME_26] said that he spoke to [NAME_2] about his conduct and some of his speech in relation to behaviour he had seen or noticed by chance. He said that he informed [NAME_2] that it was not acceptable behaviour from a Senior Executive of the Department. When asked by [NAME_25] whether his advice was "taken on board" by [NAME_2], he replied: "No, And that is why I actually refer it to the Deputy and the [NAME_20] because they have more whack or more authority." 141 In cross-examination, [NAME_26] said that the unacceptable behaviour he had witnessed related to racial comments [NAME_2] had made one day in the lunch room. He said that two officers, of either Indian or African extraction, were playing table tennis and that [NAME_2] had said to them, "righto you jungle bunnies, get out of here and let us white fellows have a go". [NAME_26] said that this was the only time he had spoken to [NAME_2] about his behaviour, and that he had not informed either the [NAME_20] or the [NAME_20] about it. 142 [NAME_2] denied that [NAME_1]'s version of the [NAME_33] incident was correct. His version of what occurred is set out in his letter to [NAME_24] of 19 January 1999 (Exhibit AG, Annexure A). It reads: "On 13 December 1997 I conducted the 0800 hours staff parade at [NAME_18] C.C. During that parade it became evident that S.P.[NAME_28] was absent, however I had seen her in the [COMPANY_19] prior to that time. At the completion of the parade after directing staff to their duties, I entered the [NAME_33] to use the telephone in an attempt to locate [NAME_28]. I lifted the receiver and called the Roster Clerk, asking her if she knew [NAME_28]' whereabouts. During this call I remained standing, facing out of the Gate towards [NAME_52] [COMPANY_19]. Present in the [NAME_33], sitting beside me on my right and also facing the same way, was [NAME_53]. [NAME_1] eavesdropped on my conversation and, upon hearing my enquiry regarding [NAME_28], made a comment to me that I could not hear. When I hung up the phone I asked [NAME_1] to repeat what she had told me. She did so, and again I did not hear. I apologised and asked her to repeat it once more. [NAME_1] became very angry and started screaming abuse at me, saying, "I'm not fucking telling you again! You probably can't understand because of my accent!" I became quite angry at her verbal attack, and replied, "You're probably right. If you want to live in this country you should learn to speak the language". I then left the [NAME_33] without locating [NAME_28]. In hindsight, what I said to [NAME_1] may be seen not to be appropriate, however, it should be realised she had made me angry, and my words were said in the heat of the moment. . . . " 143 In cross-examination, [NAME_2] was adamant that he had never said to [NAME_21] that he had made a remark about [NAME_1]'s country of origin purely in fun and the "spirit of the moment". He also denied that he had said the racial comments attributed to him by [NAME_26] (in para 141 above) or that [NAME_26] had spoken to him about it. 144 [NAME_2] relies on the evidence of [NAME_42], [NAME_43] and [NAME_44] to show that [NAME_1] had often displayed abusive conduct towards prisoners. He specifically relies on the evidence of [NAME_43] to show that [NAME_1] had on occasions been vulgar and crude in her discussions with other officers; the evidence of [NAME_44] to show that she had described an inmate as a "fucking dirty stinking Abo junkie"; and the evidence of [NAME_42] to show that she had addressed new prisoners as "pieces of shit", "dogs" and "dirty junkies". Our Findings 145 We are satisfied that [NAME_1]'s account of the [NAME_33] incident and her account of the occasion on which [NAME_2] called her "a fucking wog" can safely be accepted. In reaching this view, we have preferred her evidence to that given by [NAME_2]. 146 In relation to the occasion on which [NAME_2] called her "a fucking wog", we find that she spoke to [NAME_22] about it because she was upset and because she wanted her to do something about it. [NAME_22] could not remember [NAME_1] complaining to her about the incident, she conceded that it was possible that she had done so. We find that [NAME_1]'s evidence can safely be relied on. 147 [NAME_36], [NAME_26] and [NAME_21] all said that [NAME_1] was distressed by the [NAME_33] incident. In relation to the conflict between the evidence given by [NAME_21] and that given by [NAME_2], we prefer the account given by [NAME_21] that [NAME_2] had told him that he had made a remark about [NAME_1]'s country of origin purely in fun and the "spirit of the moment". While we found some aspects of [NAME_21]'s evidence to be unsatisfactory and lacking in credibility, we are satisfied that his evidence on this point can be safely relied upon. 148 Where [NAME_26]'s evidence conflicts with that given by [NAME_2], we prefer the evidence given by [NAME_26]. As mentioned earlier, we found [NAME_26] to be a reliable and honest witness. We are satisfied that the "jungle bunnies" incident occurred as he described it. We also find that [NAME_26] subsequently told [NAME_2] that his behaviour on that occasion was unacceptable. However, in finding that [NAME_2] made the racial comments alleged by [NAME_1], we have not found it necessary to take the "jungle bunnies" incident into account. 149 We find that while there were no official complaints recorded against the Applicant and that she was regarded by [NAME_21], [NAME_22], [NAME_26], and others as a competent, professional and courteous officer, there may well have been occasions on which her behaviour was inappropriate. However, this does not in our view detract from the finding that [NAME_2] uttered the racial remarks in question. Was [NAME_2]'s Conduct Unlawful? 150 The amendments made to the Act in July 1997 did not affect the race discrimination provisions of the Act. [NAME_2]'s conduct can only be found to be unlawful through the operation of s 53 of the Act and / or the common law.

Accordingly, it is necessary to first consider the liability of the First Respondent for the racial comments made by him. Liability of the First Respondent 151 It is the Applicant's case that the First Respondent is liable for [NAME_2]'s conduct by virtue of the operation of the common law and / or s 53 of the Act. We discuss these in turn below. Personal Liability – The Common Law Position 152 We have previously found that at the time of the [NAME_33] incident, [NAME_2] was responsible for [NAME_1]'s day-to-day supervision. It follows that we are satisfied that the First Respondent is personally liable for [NAME_2]'s conduct on that occasion. 153 In relation to the earlier incident which occurred when [NAME_1] was working as [NAME_22]'s Clerk, we are satisfied that the First Respondent is also liable. 154 Based on the findings set out in paras 155 – 160 below, we conclude that the conduct of the First Respondent's most senior officers at [NAME_18] can safely be construed as conduct amounting to "inactivity" and "active condonation". 155 [NAME_22] was aware that in early to mid 1997 [NAME_2] had uttered an offensive racial remark to [NAME_1] which had upset her. 156 [NAME_21] was aware that [NAME_1] was having problems with [NAME_2] which [NAME_21] thought related to the fact that he had been rude to her and was making rude jokes. 157 [NAME_26] was aware that [NAME_2] had behaved in an unacceptable manner on the occasion of the "jungle bunnies" incident but he had not informed either [NAME_22] or [NAME_21]. 158 Throughout the relevant period, the First Respondent's policies concerning harassment (of any kind) in the workplace were not properly implemented by [NAME_21], [NAME_22] and [NAME_26] (see paras 106 – 107 above). 159 Against a background where [NAME_1] had complained to [NAME_22] about the "fucking wog" incident; where [NAME_21] was aware that [NAME_1] was having problems with [NAME_2]; where [NAME_21], [NAME_22] and [NAME_26] were aware of the [NAME_33] incident (albeit it was not a racially based complaint of harassment); where [NAME_21] was aware of other complaints made about [NAME_2] (albeit not racially based); where [NAME_26] was aware of racially based conduct exhibited by [NAME_2]; and where prison officers were extremely reluctant to make formal complaints about their managers, we find the First Respondent's conduct amounted to both "inactivity" and "active condonation". 160 In the circumstances, it was incumbent upon [NAME_21] to communicate to [NAME_2] the importance of the First Respondent's harassment policies (including racial harassment) and the importance of not engaging in conduct which might be viewed as racially offensive and / or amounting to racial harassment, and which might contravene the relevant provisions of the Act. This could have been done without breaching [NAME_1]'s confidentiality. Section 53 of the Act 161 Based on our findings in paras 155 – 160 above, we are not satisfied that the First Respondent has established that it did not authorise [NAME_2]'s conduct, or that it took all reasonable steps to prevent [NAME_2] from contravening the Act. Liability 162 We find that the conduct complained of constitutes unlawful discrimination on the ground of [NAME_1]'s race within the meaning of s 8(2) of the Act. The conduct constitutes both a discriminatory condition of employment, within the meaning of s 8(2)(a), and a detriment within the meaning of s 8(2)(c). We further find that the Applicant was treated less favourably than employees of a different race were or would have been treated in circumstances that were the same or not materially different within the meaning of s 7(1)(a). 163 We are satisfied that pursuant to both ss 8(2)(a) and 8(2)(c), the First Respondent is liable for the Second Respondent's discriminatory conduct. The Second Respondent's liability under s 8(2) arises by virtue of the operation of s 52 of the Act. We find that he is a person who caused the First Respondent to do an act which was unlawful pursuant to s 8(2). 164 Accordingly, we find that both respondents are liable, jointly and severally, in respect of the contravention of the Act (s 53(2)). VICTIMISATION Relevant Provisions of the Act 165 Section 50 of the Act provides: "50 Victimisation (1) It is unlawful for a person (the [NAME_54]) to subject another person (the person victimised) to any detriment in any circumstances on the ground that the person victimised has: (a) brought proceedings against the [NAME_54] or any other person under this Act, (b) given evidence or information in connection with proceedings brought by any person against the [NAME_54] or any other person under this Act, (c) alleged that the [NAME_54] or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or (d) otherwise done anything under or by reference to this Act in relation to the [NAME_54] or any other person, or by reason that the [NAME_54] knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them. (2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith. 166 The wording of s 50(1) makes it clear that the person victimised must be subjected to a detriment "on the ground that" he or she has made a complaint or an allegation of the type set out in paras (a) – (d). As was pointed out in [NAME_6] v [COMPANY_7] (1990) EOC 92 – 313 at 78, 145, the clear legislative purpose of s 50(1) is to ensure that victims of discrimination shall not be deterred from doing any of the acts set out in paras (a) – (d) by the fear that they may be further victimised. In the present case, the Applicant seeks to bring the First Respondent's alleged conduct within para (c). 167 In [NAME_8] v Commissioner, [NAME_9] (1996) EOC 92 – 808, the then Equal Opportunity Tribunal set out what it described as the four-fold elements of victimisation at 78, 986: "Firstly, the respondent must have caused the complainant to undergo or experience something. Secondly, the complainant must have suffered some consequential detriment in any circumstances. Thirdly, that detriment must have occurred on one of the grounds set out in sub-paragraphs (a) to (d) of section 50(1). Fourthly, it must appear that the complainant did one of the things referred to in sub-paragraphs (a) – (d). Under sub-section 2 the respondent has a complete answer to the claim if it is shown the allegation of discrimination was not made in good faith." 168 The defence provided for in s 50(2) is not relied on by the First Respondent. It is clear that [NAME_1]'s complaint of 13 December 1997 constitutes an allegation within the meaning of s 50(1)(c). What is not so clear is whether the alleged delay in transferring [NAME_1] to [NAME_30] constitutes a "detriment" and, if so, whether the First Respondent "subjected" her to this detriment "on the ground that" she had alleged that [NAME_2] had committed an act (or acts) of unlawful discrimination or, alternatively, "by reason that" the First Respondent knew that [NAME_1] intended to make such an allegation or suspected that she had done, or intended to, make it. The meaning of "subjected" 169 Unlike the provisions relating to discrimination on substantive grounds, s 50(1) uses the terminology of subjection to a detriment. In this respect, the then Equal Opportunity Tribunal (Barbour DCJ presiding) said in [NAME_10] v Department of Public Works (1984) EOC 92 – 117 at 76, 133: "The better view appears to be that the word "subjected" carries with it a requirement that the respondent intended to cause detrimental consequences to flow to the Complainant." See also [NAME_6] v [COMPANY_7] at 78, 146. 170 However, these decisions predated the decision in Waters v Public Transport Corporation (1991 – 92) 173 CLR 349 where two members of the High Court, Mason CJ and Gaudron J, made it clear that in the context of the discrimination provisions at least, an absence of intention or motive on the part of the alleged [NAME_54] does not preclude a finding of unlawful discrimination (at 359). See also the comments of Deane and Gaudron JJ in Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165 at 176 – 177; Waterhouse v Bell (1991) 25 NSWLR 99 at 106. 171 In the light of these decisions, the Tribunal in [NAME_8] v Commissioner, [NAME_9] expressed the view that the word "subject" means no more than that the conduct of the respondent was done on one of the grounds referred to in s 50(1) and adds nothing of substance to the other stated requirements (at 78, 986). We propose to adopt this view. What constitutes a "detriment"? 172 In [NAME_8] v Commissioner, [NAME_9], the Tribunal said, at 78, 986, that victimisation occurs when the respondent causes the complainant to undergo loss, damage or injury based on the fact that the complainant has made a complaint or an allegation within the meaning of s 50(1). When considering the meaning of the word "detriment", the Tribunal expressly said that it preferred the Macquarie Dictionary meaning of "loss, damage or injury" and that it did not consider it helpful to refer to the concept, applicable to discrimination provisions, of suffering a material difference in treatment. 173 For present purposes, we prefer the meaning given to the word "detriment" in [NAME_6] v [COMPANY_7]. In that case, following Hill v Water Resources Commission (1985) EOC 92 – 127 at 76, 290, the Tribunal held that all was required to constitute a "detriment" in a victimisation complaint is that the complainant has been placed under a disadvantage as to a matter of substance, as distinct from a trivial matter (at 78, 146). Thus defined, we are satisfied that the delay in transferring [NAME_1] constitutes a "detriment" within the meaning of s 50(1). 174 The real issue in the present case appears to relate to the question of causation, ie whether the Applicant has proved the necessary causal connection between the First Respondent's conduct and the detrimental consequence alleged (namely, the delay in being transferred to [NAME_30]). Observations to this effect were made in [NAME_10] v Department of Public Works (1984) at 76, 133 and [NAME_6] v [COMPANY_7] at 78, 146. The meaning of "on the ground that" 175 Section 4A of the Act, which was inserted in 1994, provides that if an act is done for two or more reasons, provided one of the reasons consists of unlawful discrimination, then the act is taken to be done for that reason (whether or not it is the dominant or a substantial reason for doing the act). In [NAME_8] v Commissioner, [NAME_9], the Tribunal noted that this section did not apply to an act of victimisation (at 78, 986).

Accordingly, it is instructive to derive assistance from the cases which dealt with the comparable phrase, "on the ground of", in the context of discrimination on substantive grounds before the 1994 amendment took place. 176 Two distinct approaches have emerged from the relevant authorities. The first approach requires a determination of whether the act in question is "a significant factor" in the alleged decision making process or conduct (eg O'Callaghan v Loder; Reddrop v Boeringer Ingleheim Pty Ltd (1994) EOC 92 – 031). The second approach requires an examination of whether the act in question is "a real" or "an operative ground" of the alleged decision or conduct (eg [NAME_55] v [NAME_56]). 177 In [NAME_55] v [NAME_56], Clarke JA said at 106: "In the event, however, that the Tribunal decides that there are two grounds for the action or decision, one which does and one which does not fall within [the prohibition] then, as it seems to me, a case of discrimination on the ground of marital status will have been made out. That is because less favourable treatment was accorded on the ground, amongst others, of, for example, marital status. The fact that there was another ground for the discriminatory action is, in this context, of no importance." 178 We prefer the approach taken by Clarke JA in [NAME_55] v [NAME_56] and consider that, although the phrase "an operative ground" was originally adopted in the context of alleged discriminatory acts, it is equally applicable to alleged acts of victimisation. This is consistent with the approach adopted in [NAME_8] v Commissioner, NSW Fire Brigades and D v Berkeley Challenge Pty Ltd [2001] NSWADT 92. The meaning of "by reason that" 179 As was noted in [NAME_6] v [COMPANY_7] at 78, 146, the latter part of s 50(1) appears, in its terms, to pose a different causal connection from that set out in the earlier part of s 50(1) namely, a requirement that the person victimised has been subjected to a detriment "by reason that" the [NAME_54] has the relevant knowledge or suspicion. The Tribunal in [NAME_6] considered that the same principles applied to the application of each causal requirement in the two parts of s 50(1) notwithstanding the variation in terminology between them.

Accordingly, the Tribunal's view was that the words, "by reason that", merely require that one of the relevant states of knowledge or suspicion was a substantial operative reason, although it does not have to be the sole reason, for subjecting the person victimised to a detriment. 180 In [NAME_6], the Tribunal's interpretation of the second part of s 50(1) (that the operative reason be "substantial") may well impose a more stringent test than that we have adopted in respect of the term "on the ground that" which appears in the first part of s 50(1), namely, that the ground of the alleged victimisation be "an operative ground" rather than a substantial operative ground. However, in the present case, nothing turns on this distinction.

Accordingly, it is not necessary to decide the point. The Evidence 181 It is common ground that [NAME_1] applied for a three month secondment to [NAME_30] in July 1997 and that both [NAME_21] and [NAME_26] were aware at the time that her stated reason for the transfer was that she wished to gain more experience in a male prison. The application form is Annexure A to [NAME_21]'s statement of evidence. It shows that the application was supported by [NAME_26] conditional upon a replacement officer being located and upon [NAME_1] returning to [NAME_18] after 3 months. A further note on the form shows that, as of 16 July 1997, no responses had been received to the proposed secondment but that [NAME_1] was advised to make further inquiries. 182 [NAME_1] gave evidence that she was on leave from 12 January 1998 to 9 February 1998 and that prior to taking leave, she became aware that an officer at [NAME_30], [NAME_57], wished to be transferred to [NAME_18]. She said she spoke to him, confirmed that he was interested, then spoke to [NAME_21] about transferring. She recalled that when she asked him whether she could get a transfer he replied, "No, I can't lose you. [NAME_57] changed his mind." 183 It is common ground that after she returned from leave in February, she lodged another application for a transfer on 14 February 1998. The application form is Annexure G to [NAME_21]'s statement of evidence and shows that it was signed by him on 16 February 1998. He gave evidence that he was aware that between July 1997 and 16 February 1998 [NAME_1] was always looking for a transfer if one became available. He said that a replacement officer was not available. However, in cross-examination, he agreed that although he became aware that [NAME_57] was available to do a swap, he refused to accept him because he was not satisfied with his sick leave record. 184 [NAME_26] gave evidence that in due course approval for [NAME_1] to be seconded to [NAME_30] for a period of 3 months was given by [NAME_24] in May 1998, with a commencement date of 15 May 1998. No replacement officer was transferred to [NAME_18]. In cross-examination, [NAME_26] agreed that the swap with [NAME_57] became available in late 1997 or early 1998. He said that given the circumstances he would have approved the swap; however, [NAME_21] was resistant to the transfer. The reasons for his resistance are canvassed later. In order to appreciate the context in which they arose, it is helpful to examine first, the degree of contact between [NAME_2] and [NAME_1] after 13 December 1997, and secondly, the conversations [NAME_1] had with [NAME_21] about the transfer. 185 It is common ground that prior to the [NAME_33] incident, [NAME_1] and [NAME_2] had regular contact with each other. After that time, the evidence is unclear as to how often they had contact with each other for the remainder of the year. The "motorola" incident which occurred on 31 December 1997 shows that, as of that date, they were still in contact with each other. 186 Thereafter, [NAME_1] said they worked together in early January 1998, before she went on leave from 12 January to 9 February, and that they then worked together for a few weeks somewhere in February to March. [NAME_2] said he was on leave from the first week of February to the first week of March, whereupon he returned to work for a short time before taking sick leave "around about the 12th to the 18th or something of that nature". He said he was "guessing" but he thought he worked with [NAME_1] on less than six days between 13 December 1997 and the time when he left [NAME_18]. It is not in dispute that as a result of a direction given by [NAME_24] on 18 March 1998, he was transferred out of [NAME_18] forthwith pending the completion and evaluation of [NAME_25]'s investigation. 187 It is [NAME_1]'s evidence that between July 1997 and December 1997 she spoke to [NAME_21] on a number of occasions about the request to transfer to [NAME_30], and that although she did not say what the nature of her complaint was, she told him that she wanted to leave because of [NAME_2]. [NAME_21] disputes that [NAME_1] ever told him that this was why she wanted to transfer to [NAME_30]. He concedes, however, that [NAME_1] had spoken to him about problems she was having with [NAME_2], specifically that he had been rude to her and that he was making rude jokes. 188 After the [NAME_33] incident, it is clear that [NAME_21] became aware of [NAME_1]'s reason for wanting to transfer to [NAME_30]. In this regard, [NAME_2] said that after 13 December 1997, [NAME_21] told him that [NAME_1] had said she could not work with him. He also said that when he asked [NAME_21] to change the rosters so that he could have minimal contact with [NAME_1], [NAME_21] said that would not be possible; and that he [[NAME_2]] then suggested that either [NAME_1] be moved out of the gaol or that he be moved. 189 [NAME_59], the [NAME_20] of [NAME_30] from November 1995 until November 1998, gave evidence that he supported the proposed swap arrangement between [NAME_1] and [NAME_57]. He said that when he spoke to [NAME_26] about the swap, in early 1998, [NAME_26] told him that [NAME_1] was having problems with [NAME_2] and, without providing any details, he said that it would be best if [NAME_1] was out of [NAME_18] for a while. [NAME_59] said that had he known of the details then, he would have taken steps to expedite [NAME_1]'s transfer to [NAME_30]. 190 He also gave evidence that some time later he received a report, signed by [NAME_21], declining the secondment because [NAME_57] had taken too much sick leave. He said that when [NAME_26] hand delivered the report to him, he provided details of the issue between [NAME_1] and [NAME_2] and said, in effect, that [NAME_1] had to get out. He also said that [NAME_26] said to him words to the effect: "[NAME_60] is pissed off with her and said that 'she can go to [NAME_52]. We are not going to put her where she wants to go'." He said he replied with words to the effect: "That's silly. [NAME_18] and [NAME_52] are close and they are going to meet." He also said that [NAME_26] agreed with him. 191 After speaking with [NAME_26], he said he referred the matter to [NAME_39] who then made representations to [NAME_24] and, in due course, [NAME_24] approved the secondment. After the 3 month secondment had lapsed, he said he received a letter from [NAME_21] requesting her return to [NAME_18]. When [NAME_1] became upset and said she would not return to [NAME_18], he said he called [NAME_39], who in turn called [NAME_24], with the result being that [NAME_1] stayed at [NAME_30]. 192 When cross-examined about his opposition to [NAME_1] being transferred to [NAME_30], [NAME_21] agreed that his resistance flowed from his general suspicion that in the past employees had sought to manipulate such transfers. The following exchange took place: "Q: The triggers for the suspicion in relation to [NAME_1] were her complaint of stress. A: Right, yes? Q: And coupled with the fact that she had made a complaint of sexual harassment. A: Yes. Q: You were suspicious of requests for transfer when there were stress claims. A: Yes." 193 Earlier in cross-examination, the following exchange occurred: "Q: . . . Were you prepared to countenance a transfer of her to the [NAME_61] or [NAME_61]? A: If that would tell me, yes, if she was genuine or not or she was just doing it to manipulate herself. Q: Right. You took that as a measure of whether she was genuine or not. A: Yes. . . . Q: . . . Is it fair to say that you were annoyed with [NAME_1] at this time? A: Yes Q: You were concerned that the combination of lodging a complaint of sexual harassment and it could somehow be used to give her assistance in her transfer. A: Yes. Q: The previous year when [NAME_40] had made her complaint, you had become annoyed with her because you thought that she had used that to give support to a workers compensation claim. Is that right? A: I could prove that, yes." 194 [NAME_26] gave evidence that [NAME_21] was resistant to the swap because [NAME_18] needed more female staff. In cross-examination, he agreed that [NAME_21] was annoyed with [NAME_1] because she wanted a transfer to [NAME_30]. He also agreed that [NAME_21] was reluctant to let someone who had lodged a complaint to go to the gaol of their choice, and that he did not want the lodging of a complaint to somehow allow people to effect a transfer. 195 The following exchange occurred in cross-examination between [NAME_26] and [NAME_11]: "Q: And indeed you accepted that [NAME_1] was stressed and upset? A: Yes. Q: And I think you agree that at least from your perspective, leaving aside the question of whether she had lodged a complaint, the fact that she was stressed and upset would ordinarily tend to support her going to [NAME_30]? A: Yes. Q: And in your experience if there was no complaint, the fact that she was stressed and upset would result in [NAME_21] supporting her going to [NAME_30]? A: Yes." Submissions of counsel 196 We understand [NAME_11] to be submitting that the evidence discloses the following: * Based on his previous experience with other employees, [NAME_21] was inherently suspicious of [NAME_1]'s stated reason (after 13 December 1997) for seeking a transfer. * [NAME_21] was opposed to [NAME_1]'s transfer because he thought it would result in an "advantage" being gained by the making of a complaint. * In these circumstances, the lodging of the complaint by [NAME_1] motivated [NAME_21] to resist the transfer when he otherwise would have supported it (given that [NAME_1] was upset and under stress at the time, and was a competent, well respected employee with a good work record and no prior history of rorting the system). * [NAME_21] may have had other reasons for resisting the transfer (namely, that there was a shortage of staff at [NAME_18] and the proposed replacement, [NAME_57], was considered to be unsuitable), they do not detract from the fact that [NAME_21]'s primary motivation was that he doubted the genuineness of [NAME_1]'s claimed need for a transfer arising out of the events which formed the subject of her complaint. * Accordingly, based on [NAME_21]'s opposition to the transfer, the First Respondent subjected her to a detriment on the ground that she had lodged a complaint against [NAME_2].

197 [NAME_45]' submissions are summarised below: * [NAME_1] told [NAME_21] prior to December 1997 that she was having problems with [NAME_2], she did ot say that this was the reason why she wanted a transfer until after the [NAME_33] incident. * [NAME_1] may have wanted to transfer, she did not need to do so. After December 1997, [NAME_2] was substantially on leave until he was transferred out of [NAME_18]. There is no specific evidence that anyone else harassed or victimised her after she made the complaint about [NAME_2]. In summary, life was not so unbearable for [NAME_1] that she needed to transfer. * At the relevant time, [NAME_21] was faced with a shortage of staff at [NAME_18]. In particular, he did not want to lose a competent female prison officer (which [NAME_1] clearly was). * Having had past experience with officers "scamming" their way out of [NAME_18], [NAME_21] regarded every application for transfer with suspicion, not just applications associated with a complaint of sexual harassment or some other complaint against a prison officer. * When [NAME_21] was unable to resolve [NAME_1]'s grievance locally, he promptly forwarded the matter to Head Office on 6 January 1998. * The First Respondent provided [NAME_1] with considerable assistance first, through [NAME_39] and secondly, by [NAME_24] transferring her to her chosen location in May 1998. * [NAME_21] wanted [NAME_1] to return to [NAME_18] at the expiration of the three month secondment because he didn't have enough staff and needed good officers.

198 As we understand the Applicant's case, by delaying her transfer to [NAME_30] the First Respondent subjected her to a "detriment". She claims that this delay was attributable to [NAME_21]'s opposition to her transfer (an operative ground of which was the making of her complaint against the Second Respondent), and that the First Respondent is directly liable for [NAME_21]'s act of victimisation. Our Findings 199 We have previously found that the delay in transferring [NAME_1] constitutes a "detriment" within the meaning of s 50(1). The more difficult issue to determine is whether an operative ground of [NAME_21]'s opposition to the transfer (and hence the delay) was the making of a complaint against [NAME_2]. 200 The situation is complicated by the fact that [NAME_1] first lodged a transfer application in July 1997 and complained to [NAME_21] about [NAME_2] prior to lodging a formal complaint. It is not entirely clear whether the Applicant is alleging that the delay which occurred prior to her formal complaint, forms part of an ongoing act of victimisation or whether it is only relevant as background information to later events. We discuss this below. 201 In our earlier findings, we stated that [NAME_21] first became aware of the nature of [NAME_1]'s problems with [NAME_2] shortly after the [NAME_33] incident. [NAME_21]'s private views may have been at that stage about [NAME_1]'s transfer, in circumstances where her reasons for seeking a transfer were not entirely clear (although she had said to him that she wanted to leave because of [NAME_2], she had not provided any details) and no replacement officer was available, we are unable to conclude that an operative ground of [NAME_21]'s opposition to the transfer was that she had made an informal complaint against the Second Respondent.

Accordingly, we are not satisfied that, at that stage, the delay in transferring her formed part of an ongoing act of victimisation. We propose to treat it as background information only. 202 [NAME_21] became aware of the details of [NAME_1]'s formal complaint against [NAME_2], the situation changed. The evidence discloses that sometime in early 1998, approval was given by [NAME_26] and [NAME_59] for a swap to take place between [NAME_1] and [NAME_57]. However, [NAME_21] did not approve the swap, ostensibly on the ground that he considered that [NAME_57] had taken too much sick leave. 203 We have previously stated that we found [NAME_26] to be an honest, reliable and credible witness. Equally, we formed the same view of [NAME_59]. 204 We are satisfied that after [NAME_1] had formalised her complaint against [NAME_2] and [NAME_57]'s transfer had been approved by [NAME_59], [NAME_26] viewed her need to transfer as genuine and urgent, primarily because he was concerned about her emotional state. We are also satisfied that [NAME_59] viewed her need to transfer as genuine and that it needed to be expedited. 205 It is clear that [NAME_26] did not share [NAME_21]'s concerns about [NAME_1]'s motives for wanting to transfer and that if the decision had been up to him, given the circumstances, he would have approved the swap with [NAME_57] notwithstanding the shortage of female prison officers at [NAME_18]. 206 As noted previously, we found [NAME_21]'s evidence on occasions to be unreliable and lacking in credibility, and that where his evidence was in conflict with that given by [NAME_1], [NAME_26] and [NAME_36], we preferred their evidence. In relation to [NAME_1]'s victimisation claim, where there is a conflict in the evidence between [NAME_26] and [NAME_21], we preferred that given by [NAME_26]. 207 We found [NAME_26]'s evidence to be particularly persuasive. Of particular note, he said that had [NAME_1] not lodged a formal complaint, the fact that she was stressed and upset about the conduct of another officer would ordinarily have resulted in [NAME_21] supporting her transfer. 208 Based on the overall evidence, we are satisfied that: * In a gaol setting, making a formal complaint against a senior officer was a difficult task and, once made, the intensity and stress of the situation would be magnified. * [NAME_1] was a respected, competent officer with no history of rorting the system. * [NAME_21] was aware that [NAME_2] had been the subject of previous complaints. * In the circumstances there was no valid reason to doubt the genuineness of [NAME_1]'s reason for wanting a transfer (namely that she wanted to get away from [NAME_2]).

209 We find that [NAME_21] was opposed to [NAME_1] being transferred to [NAME_30] for several reasons: * He did not want to lose her because she was a competent prison officer. * At the time, [NAME_18] had a shortage of female prison officers. * He did not consider [NAME_57] to be a suitable replacement. * He doubted the genuineness of [NAME_1]'s claimed need for a transfer arising out of the events which formed the subject of her complaints. * Notwithstanding his evidence to the contrary, he did not want [NAME_1] to be seen to have gained an advantage in effecting the transfer by having lodged a formal complaint.

210 We do not accept [NAME_45]' submission that [NAME_1] did not need to transfer out of [NAME_18]. Admittedly, [NAME_2] was transferred out of [NAME_18] on 18 March 1998. However, we are satisfied that, in the 3 months preceding his transfer, [NAME_1] and [NAME_2] had contact with each other at work on many occasions. [NAME_2] "guessed" the number to be less than 6. We prefer [NAME_1]'s evidence that they had contact with each other in December 1997, early January 1998 and a few weeks somewhere in February to March. 211 Given these circumstances, we accept that [NAME_1]'s stated reason for wishing to transfer (namely, to cease having any contact with [NAME_2]) was totally genuine and that she herself regarded the need for a transfer as urgent. We are also satisfied that [NAME_1] held a genuine fear that, having lodged a complaint against [NAME_2], senior officers at the [COMPANY_19] would join ranks against her in sympathy for [NAME_2], thereby making it difficult for her to remain at [NAME_18]. In this regard, she said that from February 1998 until May 1998 a number of staff at the gaol either ignored her or would barely communicate with her. She specifically named a Senior Assistant Superintendent, [NAME_44] (who gave evidence before us in [NAME_2]'s case), and an Assistant Superintendent, [NAME_62]. 212 After carefully considering the matter, we find that [NAME_21] subjected [NAME_1] to a detriment on the ground that she had made a formal complaint against [NAME_2]. While this was clearly not the only reason why [NAME_21] was opposed to the transfer, we are satisfied that it was a real or an operative ground of his opposition.

Accordingly, provided that [NAME_1] can establish that the First Respondent is liable for [NAME_21]'s conduct, she is entitled to a finding that her claim has been substantiated. Liability of the First Respondent 213 We are satisfied that in his capacity as [NAME_20] of [NAME_18], [NAME_21] clearly falls within the third category listed in [COMPANY_4].

Accordingly, we find that the First Respondent is personally liable for his conduct. Indirect Sex Discrimination 214 Given our finding above and the award of damages we propose to make (see para 234 below), we do not consider it necessary to determine the Applicant's alternative claim that the First Respondent's conduct contravenes s 25(2)(b). Relief 215 The Applicant expressly asks the Tribunal not to make any findings in relation to [NAME_1]'s clinical depression on the basis that this injury is being pursued in the workers' compensation jurisdiction. She also asks that any awards of damages exclude the effects of a car accident she had in November 1999. 216 Pursuant to s 113(1)(b)(i) of the Act, [NAME_1] seeks an order for general damages for hurt, humiliation and injury to her feelings in respect of each of the substantiated claims. In respect of the claims of sexual harassment and race discrimination, this provision permits us to order that the First and Second Respondents pay to the Applicant damages not exceeding $40,000 (for each claim) by way of compensation for any loss or damage suffered by reason of the Respondents' conduct. In respect of the claim of victimisation, we are permitted to make a similar order but only against the First Respondent. 217 Pursuant to s 113(1)(b)(iii), [NAME_1] also seeks an apology from each of the Respondents. This provision permits us to order the Respondents to perform any reasonable act or course of conduct to redress any loss or damage suffered by the Applicant. 218 To support her case that she was very deeply affected by [NAME_2]'s conduct and the conduct of the First Respondent, [NAME_1] relies on the distress, anguish and suffering it caused her and its consequential effects upon her self-esteem, confidence and relations with her family. 219 As acknowledged by Wilcox J in [NAME_63] (1985) ALR 503 at 543, the task of determining the appropriate level of damages in a case of unlawful discrimination is difficult: "… [D]amages for such matters as injury to feelings, distress, humiliation and the effect on the complainant's relationships with other people are not susceptible to mathematical calculation . . . To ignore such items of damage simply because of the impossibility of demonstrating the correctness of any particular figure would be to visit an injustice upon a complainant by failing to grant relief in a proven item of damage." 220 We find that during the period in question, [NAME_2]'s overall conduct towards [NAME_1] caused her a great deal of distress and had a significant impact on her psychological wellbeing and enjoyment of life. We also find that the consequent anger and hurt she experienced had an adverse impact on her relations with her husband and children, and that it played a significant role in the breakdown of her marriage and her subsequent separation from her family in February 2000. 221 We further find that the hurt, anger and feelings of hopelessness she experienced also played a significant role in her decision in June 2000 to take an overdose of sleeping and painkiller tablets. 222 In cross-examination, she said she had been miserable for 3 years as a result of [NAME_2]'s conduct and the consequential problems she had experienced with her husband. She said she had lost a lot of weight. In relation to her present condition, she said: "My head is not improved, it is the same. I swallow a lot of tables, and without them, I can't live. I need sleeping tables; I can't sleep. I'm living away from my kids and my husband, what else do you want?" 223 We accept that the impact on her of [NAME_2]'s conduct necessitated regular visits to a psychiatrist, [NAME_64], from 22 May 1998 onwards. He was called by the Applicant to give evidence of her ongoing symptoms and the treatment he had prescribed for her. His evidence was generally consistent with that given by the Applicant herself. 224 We also find that [NAME_1] suffered additional hurt, humiliation and embarrassment during the course of the present proceedings, as a consequence of the suggestion made by the Second Respondent that she had told a series of lies and as a consequence of the attempts made by him to denigrate her character. 225 We further find that the First Respondent's failure to act promptly on her complaints heightened her anguish and distress. 226 It is the Applicant's case that any award of damages should allow for a "cushion" for economic loss or compensation for the effect upon her ability to obtain a promotion. She said that on 31 March 1998, when she attended for an interview for a promotion to the position of Senior Prison Officer, she was very upset as a consequence of having had a difficult few months (arising out of her formal complaint). She said she considered that this had affected her performance in the interview. 227 We accept [NAME_1]'s evidence that the long-term effect of [NAME_2]'s conduct (and the First Respondent's inactivity) was to undermine her confidence in herself and to remove her desire to seek promotion. Had it not been for this conduct, we are satisfied that her long-term plan was to remain at [NAME_18] and be promoted to the position of Senior Prison Officer. 228 We accept that the successful applicants who were interviewed for the position of Senior Prison Officer in March 1998 were selected on merit. However we are satisfied that in the ordinary course of events, in time [NAME_1] would in all likelihood have received a promotion to Three Stripes. This finding is consistent with the generally accepted view of her as a competent, professional and well respected officer.

Accordingly, we find that as a consequence of both the First and Second Respondent's conduct, [NAME_1]'s opportunities for promotion and increased job satisfaction have been significantly diminished. We consider that any award of damages should adequately reflect this loss. 229 We consider that $27,500 is an appropriate amount to award the Applicant for her claim of sexual harassment. This figure includes the claim of sex discrimination relating to those incidents of sexual harassment which occurred prior to 4 July 1997. 230 The figure of $27,500 includes a specific amount of $7,500 for loss of promotional opportunities and loss of enjoyment at work. We consider it appropriate to make this award in relation to the claim of sexual harassment. 231 In relation to the claim of race discrimination, we find that [NAME_1] was humiliated, embarrassed and distressed by [NAME_2]'s conduct and the First Respondent's inactivity. We also find that it undermined her confidence in her ability to speak English and her ability to communicate. In relation to the [NAME_33] incident, we find that her humiliation and embarrassment was heightened by the fact that other officers were present. 232 We consider that $7,500 is an appropriate amount to award the Applicant for her claim of race discrimination. 233 In relation to the claim of victimisation, we find that [NAME_21]'s opposition to [NAME_1]'s transfer, and the ensuing delay in transferring her to [NAME_30], significantly added to her anguish and distress. We are satisfied that had she been transferred immediately a swap became available, much of the stress associated with putting [NAME_2] "on paper" could have been alleviated. Instead, it escalated. 234 We consider that $12,500 is an appropriate amount to award the Applicant for her claim of victimisation. 235 In awarding each of the above amounts, we have not taken into account any evidence relating to the Applicant's clinical depression or the effects of a car accident she had in November 1999. 236 While we acknowledge that we have the power to order that the First and Second Respondents apologise to [NAME_1], we do not consider that it is appropriate to do so. The Second Respondent has steadfastly denied the allegations and, in these circumstances, we are of the view that there would be limited benefit in issuing an apology which is not genuine. Orders 237 In relation to the claim of sexual harassment, we order that the First and Second Respondents pay the Applicant within 21 days general damages in the sum of $27,500. 238 In relation to the claim of race discrimination, we order that the First and Second Respondents pay the Applicant within 21 days general damages in the sum of $7,500. 239 In relation to the claim of victimisation, we order that the First Respondent pay the Applicant within 21 days general damages in the sum of $12,500.

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