Tribunal Decisions

Shepherd v. Tuck & Tuki Marine Surveys Pty Ltd
(Member Pagani)

Background

Ms Shepherd was a 23 year old woman employed by Mr Tuck, who owned and managed a marine survey business. After two months, Ms Shepherd's employment was terminated on the basis, she alleged, that she would not engage in a personal relationship with him.

She based her complaint on a series of incidents alleged to be sexual harassment. These included: statements of a sexual nature to and about her: `blonde' jokes (apparently inferring that she was not intelligent), taking a photograph of another woman's legs and suggesting it be stuck on Ms Shepherd's office desk, gifts and a suggestion of shared accommodation while travelling in order to minimise costs.

Mr Tuck admitted he was attracted to Ms Shepherd, but said it was she who made advances to him and that she proposed a relationship. He countered the allegations with other claims. These included Ms Shepherd introducing herself by kissing him on the neck, not voicing any objection to shared accommodation, referring to herself as a slut, and dressing scantily in his presence.

Mr Tuck argued that Ms Shepherd's employment was terminated because of her inappropriate conduct while representing the company, her lack of capacity to do the tasks, and inadequate workplace performance. Examples included giving out company business cards to males in whom she was interested, making a serious error in a ship's manual and instead of correcting it as asked, going to "have a drink" with the ship's cook, refusing to do field work, putting personal matters before business appointments, and driving the company car after drinking alcohol. On the issue of jokes, Mr Tuck said Ms Shepherd joined in the general joke-telling and humour of the office.

Outcome

Member Pagani found that neither party was "deliberately untruthful", and agreed in general on the facts. She found the main divergence was that Mr Tuck indicated he never intended offence, and Ms Shepherd said she was offended.

In terms of Mr Tuck's desire to have a relationship with Ms Shepherd, it was found "that no reasonable person in her circumstances would have been offended by the proposal, had it been made by the first respondent as alleged".

In summing up, the Member said "Ms Shepherd and Mr Tuck had shared a very casual, and personal, working relationship. The working environment was `rough and tumble', but the complainant was an equal participant in it". The Member found that Ms Shepherd failed to prove her case to the required standard.

Hoffman v. Jones t/a Classic Images Hair & Beauty Salon
(Member Wyvill QC)

Background

Ms Jones owned and conducted a hair and beauty Salon. Ms Jones and her staff provided the hairdressing services and Ms Hoffman provided the beauty therapy. Ms Hoffman rented two rooms at the salon in which to conduct her business. She paid rent, contributed towards the electricity and reimbursed Ms Jones for the use of the telephone.

Ms Hoffman became pregnant. She had previously experienced a number of miscarriages about which she had spoken to the staff. After a few weeks she began to suffer seriously from morning sickness and bleeding. This affected her ability to keep her appointments. The rescheduling of Ms Hoffman's appointments fell largely on Ms Jones' staff. Ms Jones and her staff became concerned for the welfare of her business and expressed their concerns to her. They suggested that she employ someone such as a student in beauty therapy to stand in for her when she was too ill to attend the salon. She rejected these suggestions. Ms Hoffman also alleged that Ms Jones' reaction to her pregnancy was very negative and that she felt that the entire staff were putting her under stress. For example, she alleged that the staff were concerned that she was too old to have a child.

A heated discussion took place between Ms Jones and Ms Hoffman. Ms Hoffman alleged that Ms Jones told her to "pack her gear and get out". The business relationship came to an end when Ms Hoffman packed up her equipment and vacated the premises. Ms Jones denied this and contended that Ms Hoffman left the salon of her own free will.

Outcome

Member Wyvill found that Ms Jones did not display either by words or conduct an attitude of disapproval or intolerance of Ms Hoffman's pregnancy or ill health associated with her pregnancy. He found that Ms Hoffman misinterpreted the spirit in which Ms Jones offered advice on matters associated with her pregnancy, such as suggesting to her that she should think about getting a student to do her work in the salon until she was back on her feet. He was satisfied that Ms Hoffman's belief that the staff were being negative about her pregnancy and her feeling of being stressed by the staff's attitude towards her pregnancy were based on a misunderstanding of the attitude of the staff towards her pregnancy and the difficulties she was experiencing in trying to cope with her associated ill-health and business commitments. The Member also found that Ms Hoffman's reason for vacating the rooms was substantially because of her unfounded belief that Ms Jones did not want her to continue to occupy the rooms. The complaint was dismissed.

 

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