Wayward governance : illegality and its control in the public sector / P N Grabosky
Canberra : Australian Institute of Criminology, 1989
ISBN 0 642 14605 5
(Australian studies in law, crime and justice series); pp. 173-184
Throughout most of its history the New South Wales Public Service would seem to have been less than hospitable to its female workforce. Traditionally, most women were in low-level, low paying positions, employed on a temporary rather than permanent basis, with limited opportunities for advancement (Deacon 1985).
The state Water Resources Commission, with headquarters in North Sydney, was one such bastion of male dominance. In the mid 1970s women comprised barely 12 per cent of over 2,000 strong staff. As recently as 1977, the Commission maintained separate male and female clerical seniority lists. Whilst men could rise through the clerical ranks to higher administrative positions, women could progress to the top of the stenographer scale and no further.
As principles of equal employment opportunity had been adopted as policy by the state Labor government, such formal barriers were soon to pass. A formal directive of Premier Wran amalgamated male and female seniority lists in 1978. Informal barriers to equal employment opportunity were to prove more durable, however.
Jane Hill had joined the Water Conservation and Irrigation Commission, as it was then known, in 1973. For five years, she served with competence and efficiency as an office assistant. With the 1978 integration of male and female seniority lists, she became an incremental clerk. Early in 1979 she was appointed as a Clerk Grade I in the Licensing Branch.
Ms Hill was an outgoing person who enjoyed cordial relationships with her co-workers. An active member of the Public Service Association, she was elected to a number of union committees. Eventually, she rose to become a member of the PSA Executive.
As part of the government's equal opportunity initiative, positions of 'spokeswoman' were created throughout the public service to represent women's interests in matters concerning employment and career development. Ms Hill was elected a spokeswoman as well.
Not all male employees of the Water Resources Commission were enthusiastic about their female co-workers, however. Upon her election as spokeswoman, Ms Hill received a number of snide comments. On occasion, equal opportunity circulars in her workplace were defaced. From time to time, she received telephone calls at her desk consisting of recorded messages from a venereal disease clinic.
Ms Hill nevertheless continued to succeed in her duties, impressing her superiors sufficiently to achieve further promotion. In September 1981 she became Secretary of the Tender Board in the Commercial Branch at a level of Grade 2, Clerk.
As one of the smallest branches in the Water Resources Commission, the Commercial Branch was a male bastion within a male bastion. Ms Hill's appointment as the first woman graded clerical officer in the branch met with resentment at the outset from her new colleagues.
Ms Hill's introduction to the branch can hardly be characterised as a warm welcome. When she arrived to take up her new position she was called in by the branch head, a Mr Bennett, and told that he was not looking forward to her joining the branch, as the men in the branch felt that she would not fit in. As if such a hostile reception from a new boss were not unpleasant enough, Mr Bennett had more words of discouragement. Having advised Ms Hill that the Secretary of the Tender Board normally moves into the acting Grade 3 position of Assistant Building Manager, he added that because the positions involved heavy lifting and as she was a woman, he would not be recommending her for the temporary promotions (NSW Equal Opportunity Tribunal 1985a, p. 11). A male Grade 1, clerical officer, junior to Ms Hill, was appointed to the position.
Ms Hill complained to the Commission's Equal Employment Opportunity Co-ordinator, then to the Secretary of the Commission. After six weeks and a subsequent protest from Ms Hill, the Secretary consented to her acting in the position when it again became vacant.
From her arrival in the Commercial Branch, Ms Hill was harassed by her co-workers. On two occasions when clerical staff unloaded large cartons from a delivery truck, two of the men threw the boxes at her with great force, at the same time causing them to spin. The nuisance telephone calls, which had plagued her previously, increased noticeably. Her mail was intercepted, and she received anonymous communications in the internal mail system often consisting of offensive cartoons. Additional offensive material was fixed to branch notice boards. These included advertisements for two brothels, a calendar advertising 'Rigid Tools' with a photograph of a naked woman and two boa constrictors coiled around her. Affixed to the photograph was an equal employment opportunity 'Girls Can Do Anything' sticker. From time to time Ms Hill was the target of offensive remarks and other annoying behaviour such as threats to dispose of her pet fish.
In June of 1982 when Ms Hill was acting in the Grade 4 position of Supervisor of Buyers of Mechanical Spare Parts, the previous incumbent, who was himself acting in a more senior position, refused to instruct her regarding her new duties (NSW Equal Opportunity Tribunal 1995a, p. 24). The buyers, moreover, refused to recognise her authority over them. She was told by one buyer that as she was only acting, she was not really their supervisor. All discussions were directed straight past her to the next senior officer.
The abuse from her co-workers, combined with the apparent lack of support from Commission management, began to take its toll. By the end of 1981, Ms Hill became depressed and anxious about work, and experienced a general lack of self-confidence.
Despite complaints to Commission management, the harassment increased in intensity during the first half of 1982. When Ms Hill served as Acting Assistant Building Manager, toilets were blocked, and faeces smeared on toilet walls.
The antagonism was to escalate still further. At the end of July 1982, Ms Hill was accosted by some of her workmates who subjected her to considerable verbal abuse. Shortly thereafter, Ms Hill was shifted, against her wishes, from her Grade 4 position, to a Grade 2 position in the office of the Water Resources Commission's Equal Employment Opportunity Co-ordinator.
But her difficulties were not to end with this effective demotion. In March 1983 she received through the internal mailing system and in a Commission's envelope, an anonymous threatening letter which read 'You'll get yours bitch'.
The following extract from the Equal Opportunity Tribunal's reasons for decision give some indication of the poisonous environment in which Ms Hill worked:
At a function which took place during the Annual Conference of the Public Service Association in May 1983, there was a conversation in which Graeme Brokman told some other delegates about his dislike of Ms Hill and said 'We're going to get her' or words to that effect. When told that this was just stupid talk he persisted, saying 'No, no, we're going to put her in concrete boots'. One of the others said 'But you're talking about murder' to which Brokman is said to have replied 'That's right, murder is too good for her' (NSW Equal Opportunity Tribunal 1985a, p. 31).
Ms Hill was transferred on secondment to the Public Service Board, having been promoted to Grade 3 before leaving the Equal Employment Opportunity Branch of the Water Resources Commission.
She was under medical treatment for a stress-related condition and required counselling sessions twice weekly. Costs for her treatment were paid by the Water Resources Commission.
The intensity and duration of Ms Hill's plight arose from what can only be described as gross mismanagement endemic to the Water Resources Commission. Part of the managerial lapse at branch level may be explained by the fact that each of the three most senior officers in the Commercial branch during the period 1981-83 suffered significant health problems. Indeed, all three were to retire on grounds of ill health. Their absence for prolonged periods during the course of Ms Hill's difficulties precluded continuity of managerial oversight.
But responsibility was not confined to branch level. In the words of the Equal Opportunity Tribunal:
Despite many complaints to Branch and upper management level about the repeated acts of harassment either no action or no timely and effective action was taken by those in authority (NSW Equal Opportunity Tribunal 1985a, p. 4).
This apparent inaction was perceived by Ms Hill's antagonists as implicit tolerance, if not endorsement of their actions. When asked to justify his inaction, the Deputy Secretary and Director of Affirmative Action of the Water Resources Commission at the time of Ms Hill's difficulties expressed fears that he would only have made matters worse:
I didn't want to trivialise the situation by having the Commission, or myself willy-nilly, if you like, making inquires about that and continually failing and being seen as impotent. Because it seemed to me that that would make the situation worse, make whoever was doing it even more sure of themselves (NSW Equal Opportunity Tribunal 1985b, DL 14, p. 46).
Lack of managerial initiative was suggested in further cross-examination:
You see you know it's an offence don't you to send through the post material of an offensive nature?...... Yes.
And it's also an offence to use the telephone system to make calls of an offensive nature?...... Correct.
And the federal police would have been the appropriate people to investigate if the mail had been coming from outside through the post?...... Yes.
And you've heard about fingerprinting and things like that haven't you?...... Yes.
Those are some of the steps that you could have taken to investigate fully what was happening to
Miss Hill in the Commission weren't they?...... Yes,
I could have taken those steps.
And you didn't take those steps did you?...... No I didn't.
I suppose it would also be possible wouldn't it, for you to have called in a private investigator to find out who was behind the harassment of Miss Hill?....... Yes it was possible, a private investigator never occupied my mind.
When you said that you didn't think there was anything you could successfully do about it and you thought that to be seen to try and fail was worse than to do nothing?...... Yes.
Did it enter your head that to make the presence of either the police or a private investigator known might in itself have a disciplinary effect?...... As I said I never considered a private investigator. I never though of it but it did occur to me with regard to the police, yes.
Didn't it occur to you that just the knowledge that the police were investigating those matters might have had the desired effect of itself?...... I didn't think it would.
You came to that conclusion did you?...... I came to the conclusion that there was so little that can be done that it would make it worse.
And you didn't discuss that with anybody in the police force?...... No.
(NSW Equal Opportunity Tribunal 1985b, DL 14. pp. 49-51)
The failure of management to reinforce Ms Hill's authority was made glaringly apparent in the course of further cross-examination:
And the two different kinds of complaints were made to you on this occasion were both demonstrative of the refusal of men in the commercial branch to acknowledge the seniority of a woman?...... Yes.
So that they were illustrations of a fundamental underlying problem in equal employment opportunity principles?...... Yes, you could put it that way, yes.
So it wasn't just a question of an incident that had occurred and was in the past and didn't need to be worried about was it?...... As a complaint I saw it as something that was in the past and I should say I think my recollection of it was the complaint that was made about that was an incidental complaint in connection with some other complaint.
But it was illustrative of a much more general problem wasn't it?...... Yes.
And one for which you had particular responsibility as director of affirmative action?...... Yes.
And you didn't do anything about it?...... No it seemed to me that it had passed by then.
You didn't think it was a good idea to call together the men in the commercial branch and say now look here, we are an equal employment employer, you are going to adjust to the principle of equal employment opportunity and one of them is that you recognise women in senior positions?...... That's correct.
It would have been a good idea to do that wouldn't it?...... I'm not sure whether it was a good idea to do that or not.
Well you didn't think about it at the time either did you?...... No.
You've never given it a moment's thought have you?...... What before essential ...
At any time...... No.
This is the first time you even turned your mind to it.
(NSW Equal Opportunity Tribunal 1985b, DL 14, pp. 58-9).
The Tribunal later referred to the lack of support for Ms Hill as a significant failure of management at three levels, within the Commercial Branch and the Commission as a whole.
Perhaps the ultimate illustration of managerial priorities was the transfer of Jane Hill to the Equal Employment Opportunity Section, and ultimately her secondment out of the Water Resources Commission altogether. By contrast, her antagonists, including the officer who was alleged to have spoken about murdering her, remained in the Commercial Branch.
The response of Commission management to Ms Hill's difficulties was not totally passive. On more than one occasion, the Deputy Secretary brought about the removal of offensive material from Commercial branch bulletin boards. But not until mid 1982 was any significant response forthcoming.
Following the incident in late July 1982, involving aggression and intimidation, the Water Resources Commission mobilised its disciplinary machinery. A fact finding inquiry was held, and as a result, internal disciplinary charges were laid against seven officers. Among the offences alleged were failure to provide adequate supervision, failure to prevent disruptions of work, abandoning supervisory duties when disruption was occurring, harassment, disruption of work, and insubordination.
Five officers were found guilty, reprimanded, and debited with one-half day of recreation leave. The officers appealed to the Government and Related Employees Appeals Tribunal, which held that all penalties be withdrawn with the exception of reprimands of three officers.
Recognising the managerial shortcomings in the Commercial Branch, Water Resources Commission executives transferred the entire unit, effectively making it the Purchasing Section of the Mechanical Branch, under the authority of a Principal Engineer.
Ms Hill finally made a formal complaint to the New South Wales Anti-Discrimination Board on 9th February 1983. In her complaint, she related the litany of abuses which she had suffered over the previous eighteen months, her complaints to Commission management, and the Commission's lack of response.
Ms Hill's complaint was made under the Anti Discrimination Act 1977 (NSW). It alleged that by being exposed to a hostile and offensive work environment, she was treated less favourably than male co-workers. The complaint further alleged that she was disadvantaged by Commission decisions regarding her transfer from the Commercial branch.
Counsel for the Water Resources Commission did not challenge Ms Hill's allegations of harassment. Rather, the defence rested on the argument that the employer was not liable under the Act for the misconduct of its employees, and that it did seek to discipline several employees as a result of the July 1982 incident. Counsel for the Commission further argued that even if Ms Hill were treated less favourably than her coworkers, it had not been shown that the treatment had been on the ground of sex.
After considering the evidence, the Tribunal concluded that the Water Resources Commission condoned the hostile work environment, and was thus in contravention of the Act. It noted that senior officers of the Commission were 'constantly made aware of the circumstances of the complainant's working environment' and that neither prompt nor adequate intervention was forthcoming to remedy these conditions.
The Tribunal concluded that Commission inaction or lack of adequate remedial action in the face of these problems served to encourage continued misconduct on the part of Ms Hill's co-workers. Indeed, the Tribunal noted that there was a fourteen-month delay in the Commission's implementation of the Public Service Board's anti-sexual harassment policy. The Tribunal's judgment referred to 'the crucial period of inactivity' from January to July 1982. It further faulted the Commission for transferring Ms Hill out of the Commercial branch, and leaving in place the men who were accused of victimising her. The Tribunal rejected the argument that the harmful conduct in question did not constitute sex discrimination, as it would not have occurred but for the victim's gender.
On 10 May, 1985 the Tribunal found Jane Hill's complaint substantiated and ordered the Water Resources Commission to pay her $34,872.34 in damages and $2,888 in costs. It further enjoined employees of the Commission from discriminatory conduct towards Ms Hill while she remained an employee of the Commission.
In support of its judgment, the Tribunal cited a doctor's report dated 3rd February 1984:
The factors which have been producing such stress have also obviously had an effect on her self confidence and ego. It is difficult to ascertain at this point how much of this present disability will continue, how much she will be able to reverse when the stress is removed.
... it is difficult to assess at this point just how deep the scars on her psyche are and how well or completely these will heal (NSW Equal Opportunity Tribunal 1985a, p. 44).
The Water Resources Commission was not content simply to abide by the Tribunal's judgment, and sought leave to appeal in the Supreme Court of New South Wales. At this point, Premier Wran concluded that further legal resistance by the Water Resources Commission was inconsistent with government equal opportunity policy. He would not tolerate the additional expenditure of public funds for this purpose, and ordered that the appeal not proceed.
Jane Hill resigned from the New South Wales Public Service in 1985. The man who had been Deputy Secretary and Director of Affirmative Action at the Commission during the period of Ms Hill's difficulties became Secretary of the Commission in February 1984.
In addition to its less than impressive record on matters of equal employment opportunity, the Water Resources Commission had developed a reputation for being something less than successful in achieving its objectives, and somewhat extravagant in its expenditure of public moneys. For whatever reason, the New South Wales government decided in 1986 to disband the Water Resources Commission. Some of its functions and staff would be transferred to local water boards, with the remainder reconstituted as a new Department of Water Resources within the public service. The success of this new department in meeting equal opportunity goals remained to be seen.
- Deacon, D. 1985, 'Equal Opportunity and Australian Bureaucracy, 1880-1930', The Australian Quarterly, Autumn/Winter, pp. 32-46.
- NSW Equal Opportunity Tribunal 1985a, Jane Hill v. Water Resources Commission, Reasons for Decision, 31st May, N.S.W. Equal Opportunity Tribunal, Sydney. Reported in Hill v Water Resources Commission (1985) EOC 92-127 Australian and New Zealand Equal Opportunity Law and Practice.
- NSW Equal Opportunity Tribunal 1985b, Jane Hill v. Water Resources Commission, Transcript of Proceedings, N.S.W. Equal Opportunity Tribunal, Sydney.