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ACT CIVIL & ADMINISTRATIVE TRIBUNAL
COMPLAINANT 201808 v TRANSPORT CANBERRA AND CITY
SERVICES (Discrimination) [2018] ACAT 132
DT 8/2018
Catchwords: DISCRIMINATION — race — age — sexual harassment —
victimisation — contractor — unfavourable treatment — formal
pleadings not required — credibility
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 9
Discrimination Act 1991 ss 7, 8, 13, 58, 59, 68
Fair Work Act 2009 (Cth) s 361
Human Rights Commission Act 2005 ss 28, 53A, 53CA
Sex Discrimination Act 1984 (Cth) s 28A
Cases cited: Briginshaw v Briginshaw [1938] 60 CLR 336
Cheluvappa v University of Canberra [2018] ACAT 108
Cooley v Australian National University [2007] ACTDT 2
Edgely v Federal Capital Press of Australia Pty Ltd [2001]
FCA 379
Elliott v Nanda and Anor (2001) 111 FCR 240
Gindy & Chief Minister & ACT Government and Ors [2011]
ACAT 67
Harwin v Pateluch [1995] HREOCA 23
O’Callaghan v Loder and Anor [1983] 3 NSWLR 89
Poniatowska v Hickinbotham [2009] FCA 680
Prezzi v the Discrimination Commissioner [1996] ACTAAT
132
Purvis v New South Wales (2003) 217 CLR 92
Robinson v Goodman [2013] FCA 893 Sharma v Legal Aid (Qld) [2002] FCAFC 196 Shiels v James [2000] FMCA 2
List of
Texts/Papers cited: Neil Rees, Simon Rice and Dominique Allen, Australian anti-
discrimination and equal opportunity law (The Federation
Press, 3rd edn, 2018)
Tribunal: Senior Member H Robinson
Date of Orders: 3 December 2018
Date of Reasons for Decision: 21 December 2018
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) DT 8/2018
BETWEEN:
COMPLAINANT 201808
Applicant
AND:
TRANSPORT CANBERRA AND CITY SERVICES
Respondent
TRIBUNAL: Senior Member H Robinson
DATE: 3 December 2018
ORDER
The Tribunal orders that:
1. The application is dismissed.
…………..Signed…………..
Senior Member H Robinson
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REASONS FOR DECISION
1. By way of this application, the complainant sought relief for discrimination on
the grounds of race, age, sexual harassment and victimisation.
2. I dismissed the application on 3 December 2018 and gave brief oral reasons on
that day. I advised the parties I would deliver written reasons in due course. These
are those reasons.
The relationship between the parties
3. At all relevant times, the complainant was a contractor, engaged by Manpower
Services Australia (Manpower), but assigned to a Territory workplace pursuant
to a labour hire arrangement.
The complainant’s case
4. This complaint came to the Tribunal on referral from the ACT Human Rights
Commission (HRC), and as such the complainant did not need to file an
originating process. The tribunal regards complaints referred by the HRC under
section 53A of the Human Rights Commission Act 2005 (HRC Act) as
applications made to the tribunal under section 9 of the ACT Civil and
Administrative Tribunal Act 2008 (ACAT Act).1
5. The nature of the referral process meant that the precise grounds of the application
were not entirely clear on the face of the application.
6. At a directions hearing on 13 June 2018 the complainant was directed to file a
document outlining each act, matter, circumstance or thing which she said, either
individually or taken collectively, amounted to discrimination. She did not fully
comply with this direction. However, on 31 July 2018, the complainant did send
two emails to the tribunal setting out in broad terms the outcomes she was
seeking. A further email filed on 21 September 2018 provided further context.
The tribunal is an informal jurisdiction and formal pleadings are not required.
These emails, together with the complaint to the HRC and the complainant’s oral
evidence, provide a sufficient basis for understanding her case.
1 Gindy & Chief Minister & ACT Government and Ors [2011] ACAT 67 [1]; Cheluvappa v University of
Canberra [2018] ACAT 108 [3]
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7. On the basis of the emails, and her oral evidence, the Tribunal understands that
the complainant’s case is as follows:
(A) The complainant was discriminated against on the ground of two protected
attributes, being her:
(i) age – she is in her thirties, but looks younger,2 and she was
discriminated against on the basis of her youth, or assumed youth,3
by being belittled or ignored by her older colleagues:
I feel that if I was older, that they would’ve been more acceptance
from me. I think there was jealousy there4; and
And the fact that you know, [her manager] never was engaging
with me. Like she’d engage with [an older colleague]. Like
personal conversations and me apparently interrupting but she’d
never had any personal - like there was never any engagement
with me.5
(ii) She was also discriminated against on the basis of characteristics that
young people are assumed to have, being:
(a) an assumption that because she was young she had lots of
energy – “all the bounce”6 – and was best placed to perform
unnecessary additional tasks, such as getting the jam and cream
for morning tea;7
(b) of a dramatic8 or precious character – the characteristics of a
‘princess’.
(iii) race9 – she has Croatian heritage, and was discriminated against on
the basis of characteristics of Croatian people, being:
(a) the way she spoke, which she clarified as being:
the way I spoke, the way that I was a bit – you know … like
animated. Because I am a colourful person and I do like to talk
to people and I do like to give people a smile, because I don’t
2 Transcript of proceedings 22 November 2018 page 22, lines 45-46; page 23, line 3 3 Discrimination Act 1991 section 7(1)(b) 4 Transcript of proceedings 22 November 2018 page 22, lines 2-4 5 Transcript of proceedings 22 November 2018 page 22, lines 15-20 6 Transcript of proceedings 22 November 2018 page 22, line 2 7 Transcript of proceedings 22 November 2018 page 21, line 44 to page 22, line 3 8 Transcript of proceedings 22 November 2018 page 19, line 46 9 Discrimination Act 1991 section 7(1)(r)
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think that it - I think it’s part of making a friendly
environment.10
(b) being animated11 and passionate.12
(c) She also alleges that she was called a ‘wog’, an offensive term
ascribed to people of eastern European or Mediterranean origin,
that she would not be called if she were not of that background
(B) The alleged discrimination was direct discrimination as per section 8(2) of
the Discrimination Act 1991 (Discrimination Act), in that she was treated
unfavourably because of one or both of those protected attributes; and
(C) The discrimination occurred in the area of her employment, in that the
Territory discriminated against her by not allowing her to work or continue
to work and/or by subjecting her to another ‘detriment’, in breach of
sections 13(b) and (d) of the Discrimination Act. Although the Territory
was not her employer, provisions in the Discrimination Act extend
protection to labour hire workers in some circumstances,13 and it was not in
contest that this is one of those cases.
8. Late in the proceedings, the complainant suggested that she might also have been
discriminated against on the basis of a medical condition that she had, or on the
basis that she was a contractor rather than an employee. No doubt, having a
medical condition may be a ‘disability’ that attracts protection under the
Discrimination Act. Whether status as a contract worker is a protected attribute
is less clear. However, as neither ground of discrimination was raised before the
HRC14 — and the Tribunal gets its jurisdiction to hear matters through the referral
from the HRC — these are not matters that this Tribunal can consider. Further,
little evidence was provided in support of them.
10 Transcript of proceedings 22 November 2018 page 23, lines 15-20 11 Transcript of proceedings 22 November 2018 page 24, line 1 12 Transcript of proceedings 22 November 2018 page 24, line 3 13 Discrimination Act section 13 14 HRC referral letter 21 May 2018
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9. The complainant cited a number of incidents in relation to which she says that
she was treated unfavourably. As best I can determine, those incidents include:
(a) Being treated differently by being denied access to the work premises
before business hours.15
(b) Being disciplined for things that other staff were not disciplined for —
for example, she was disciplined about entering the building alone when
other staff were not.16
(c) Being disciplined in public, in front of other staff, rather than in private —
for example, her direct manager (the direct manager) asked why she did
not attend a performance meeting in front of other staff.
(d) The direct manager making unjustified, negative assumptions about her
conduct — for example, the direct manager assumed that the complainant
simply forgot or deliberately chose not to attend a staff meeting, when she
was in fact left off the invitation list.
(e) The direct manager being reluctant to engage with her in a friendly way, as
she did other colleagues.17
(f) Her colleagues making jealous or judgemental comments about her.18
(g) Not being offered counselling when she requested it, and/or being asked to
explain why she wanted counselling.
(h) Being criticised for her work output, in circumstances where other
employees who were being visibly less than productive were not —for
example, other staff took smoking breaks during working hours and were
apparently not disciplined for it and nor was their performance
questioned.19
(i) Being denied adequate protection from the actions of other staff, including
protection from sexual harassment or bullying by a co-worker, Mr X.
15 Transcript of proceedings 22 November 2018 page 25, lines 30-32 16 Transcript of proceedings 22 November 2018 page 72, lines 45-46; page 77, lines 26-30 17 Transcript of proceedings 22 November 2018 pages 18-20 18 Transcript of proceedings 23 November 2018 page 4 19 Transcript of proceedings 22 November 2018 pages 18-19
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(j) Being asked to undertake additional tasks — for example, being asked to
go to the shops to get the jam and cream for morning tea.
(k) Being excluded from opportunities provided to other employees —
including, for example, not being invited to participate in the staff survey
(although she was offered the opportunity after her engagement was ended).
(l) Being excluded more generally — for example, her direct manager did not
engage with her as she did other employees, as set out above.
(m) Not being given clear feedback about her performance.
(n) Not being offered the same adjustments to her working environment as
other employees who had different capacities — for example, despite some
concerns with her shelving, she was not offered adjustments in the way that
other employees who struggled with shelving by reason of autism were.
(o) Being treated disrespectfully — for example, her direct manager failed to
acknowledge the several apologies she sent when she missed her
performance meeting.
(p) Being called disrespectful and offensive names – for example, a ‘princess’
and a ‘wog’.
10. In terms of the link between this unfavourable treatment and her race or age, the
complainant’s position is set out in her email to the tribunal of 21 September 2018
where she says, in reference to her allegations of unfavourable treatment:
These are the facts and I refuse to call them allegations. I am frustrated
with Presidential Members and Lawyers asking me but what does that have
to do with race or age? Honestly I cannot say other than my race and age.
Why else … was I treated differently?
The complainant maintained this position, consistently, throughout the
proceedings — that is, that there was no other explanation for the way she was
treated by the respondent and the respondent’s staff, other than that she was young
and had Croatian heritage. She maintained that the alleged name calling — ‘wog’
and ‘princess’ — was evidence of a pattern of discrimination against her because
of these attributes.
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11. The complainant further alleged that the Territory engaged in unlawful conduct
by subjecting her, or permitting her to be subjected to, sexual harassment in
breach of section 59(4) of the Discrimination Act. She cited three incidents, all
involving a fellow employee, Mr X. These were that:
(a) within two weeks of the commencement of her placement Mr X pushed his
crotch into her elbow and breathed on her neck;
(b) sometime after approximately one month into her placement Mr X sat on
her lap; and
(c) in early June 2017 Mr X pretended to trip and fall with his body pressed
against her and attempted either kiss her20 or hug her.21
12. The complainant further says that the respondent victimised the complainant by
terminating her employment because she asserted her rights under the HRC Act
by making complaints about the way she was treated.
13. The complainant seeks, by way of remedy:
(a) that the Territory:
(i) employ (or perhaps more accurately, engage) her again; or
(ii) pay out the remainder of her employment contract, or damages
equivalent to that; and
(b) an order that the Territory, or perhaps only Transport Canberra and City
Services (TCCS), reflect on why there was no warning about her
performance prior to her termination; and
(c) an apology for the way she was treated by her manager; and
(d) that Mr X undergo training and education about respecting boundaries and
personal space.
14. The complainant also sought further compensation for breach of contract by the
respondent. The alleged breaches were the failure to perform a proper
investigation into her allegations of sexual harassment, a failure to keep the
20 Transcript of proceedings 22 November 2018 page 15, line 40 21 Transcript of proceedings 22 November 2018 page 58, lines 11-12 and 17
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allegations confidential, and perhaps also a failure to protect her from workplace
bullying. While the Tribunal could consider some aspects of these allegations in
so far as they may be elements of the ‘unfavourable treatment’ she alleges she
suffered for the purpose of the Discrimination Act, any argument about breach of
contract is outside the scope of the Tribunal’s jurisdiction in this matter.
The Territory’s position
15. The Territory’s position may be more succinctly stated.
16. First, the Territory says that the complainant has not provided any evidence with
respect to the reasons why the protected attribute of ‘age’ was engaged.
17. Secondly, the Territory denies some of the incidents of alleged unfavourable
treatment happened — most particularly the allegations that the complainant was
called a ‘princess’ or a ‘wog’. It does not deny all the incidents, although it does
dispute the complainant’s characterisation of them.
18. Thirdly, it says that to the extent that the complainant was treated unfavourably,
or subject to some disadvantage, it was not because of her age or her race.
19. The Territory also denies the allegation of victimisation, and denies that the
complainant has been subjected to a detriment for any reason under section 68 of
the Discrimination Act. In particular, the Territory says that it was unaware that
the complainant had made allegations of discrimination or sexual harassment
prior to the termination of her employment (as opposed to generalised complaints
about her treatment), and therefore the termination could not have been ‘because’
of those complaints.
20. The Territory also denies that the alleged incidents of sexual harassment
happened at all, or alternatively says that if they did happen, they were inadvertent
and not capable of amounting to sexual harassment.
Findings of fact
21. As a number of alleged facts were in dispute, it was necessary that I draw
conclusions about the credibility of some witnesses. I make the following
observations about that process.
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22. There were some inconsistencies in the evidence of several of the witnesses,
including but not limited to the complainant. This included some (sometimes
minor) inconsistencies between their witness statements and their memories. That
is not surprising. These events happened over the course of a few months, over a
year ago. Some witnesses, frankly foreseeing difficulties, kept notes (most
particularly Mr X and the direct manager). The complainant did not. The
Territory’s witnesses also had access to computer records and documents and,
again, the complainant did not. It was apparent that the Territory’s witnesses
relied on these notes and records to refresh their memories. No criticism is made
of this. That is what the notes and records are for. Their recollection of dates and
times are more reliable as a result.
23. The complainant provided a witness statement to the HRC, and this formed the
basis of her evidence prior to her oral testimony. This was prepared by an
industrial advisor, apparently over the phone.22 She did not refer to it at hearing
and instead gave evidence from memory. Some of her recollections differed from
the statement. I have taken account of the complainant’s submission that she was
the only witness who attempted to rely on her memory rather than her witness
statement. I accept it is reasonable to assume that her memory, like that of the
other witnesses, has faded over the year since these events transpired. I am
unconcerned by her inability to recall dates. I also accept, as happens too often,
that some refinement or gloss may (and I put it no higher than that) have been put
on her statement to the HRC by the person who prepared it. However, I am
concerned about her inability to remember the sequence of key events and some
of the detail. For example, she gave differing accounts of whether she actually
heard a colleague calling her a ‘princess’ or a ‘wog’ or only heard rumours that
she had been called such. I am concerned that the emotive nature of her evidence
may amount to exaggeration, albeit perhaps not intentionally so. Further, I have
formed the view that she has ascribed adverse motives to persons, particularly Mr
X, that were not there. However, I do not find that the complainant was
deliberately misleading the Tribunal. I am satisfied she gave honest evidence of
her impressions to the best of her recollection, albeit that recollection may not
22 Transcript of proceedings 22 November 2018 page 72, line 2
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have been reliable. Accordingly, for the purpose of this hearing, unless I am
satisfied I should not do so for reasons I will explain later (most particularly in
relation to the sexual harassment allegations) I am prepared to take the
complainant’s case at its highest. On that basis, I assume the following facts.
24. On or around 2010 the Territory engaged Manpower under a services agreement
to provide temporary contract staff to TCCS. It did this because it wanted access
to a supply of temporary, flexible labour, without the need to directly engage
those workers as public servants.
25. In early 2017, TCCS identified a need for additional administrative assistance in
a service division of the respondent (the service).
26. The service provides books to persons who are unable to visit a public library to
make their own selections. Members of staff are required to review an
information sheet provided by a client, and select books based on the client’s
interests. The books need to be identified, collated, delivered and, when returned,
re-shelved. The role involves working in a defined area to the rear of the main
library. Employees also drive to premises of clients, or hospitals or other
locations, in pairs. They require skills in administration, customer service and
teamwork.
27. Manpower proposed the complainant as a candidate to provide services to the
service. On 2 May 2017 the respondent interviewed the complainant, and also
found her suitable for a role in the service.
28. The respondent did not directly engage the complainant. Rather, Manpower
engaged her on a casual employment contract, and then assigned her to the role
at the service. Her assignment with the service commenced on 8 May 2017.
29. The complainant’s placement at the service was not successful. Following
complaints from the direct manager, on 30 June 2017 Manpower advised the
complainant that her employment was terminated. The reasons for the termination
of the complainant’s employment are disputed.
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30. To put the termination in context, it is necessary to go back to the beginning of
her assignment.
31. At the commencement of her engagement, the complainant was assigned to work
with Mr X, an ongoing employee who appears to be relatively experienced in the
service. Her manager was the direct manager, and the direct managers’ manager
was a senior manager (the senior manager).
32. The senior manager was the Territory’s contact person under the services contract
with Manpower. She had responsibility for the placement of the complainant at
the service and for liaising with Manpower. She also had responsibility for
overseeing 130 staff members across nine locations. The senior manager was not
involved in the complainant’s induction or her day to day management.
33. The direct manager was responsible for the management of the service as a whole
and was located on site. She had direct supervision of Mr X and the complainant,
as well as another employee, Ms M. On the direct manager’s evidence, it appears
that the workplace was busy and, at some points, understaffed. Consequently, the
direct manager appears to have, albeit rather informally, delegated the majority
of the training and induction of the complainant to Mr X. This included using the
computer.
34. Mr X appeared as a witness in these proceedings, and gave full and, I accept,
honest evidence. He is, by his own evidence, not a people-person, and while I
have no doubt he did his job with absolute professionalism and diligence, it
appears that the induction process was perhaps not the welcome to the public
sector the complainant — who had been out of the workforce for some time and
had never worked in a similar environment before — might have hoped for.
35. The complainant sought to cast Mr X is an unfavourable light. She referred to
personal information he had posted on his Facebook, namely a self-description of
himself as, amongst other things, a ‘perve’. Mr X gave very frank evidence as to
the basis for that self-description, and the context in which it was used (being one
of a number of adjectives used in connection to online activities and his online
persona and intended to be self-deprecating and humorous). I draw nothing
12
adverse from that self-description. It relates to his private interests, and is not
relevant to these proceedings.
36. Sometime during the second week of her placement with the service, the
complainant asked Mr X to show her how to use the computer. On her initial
version of events, his crotch touched her elbow and he breathed down her neck.
Mr X cannot remember the incident, but he honestly and frankly conceded the
way he was standing, and the fact that the complainant is “very tall” and her
“elbows stick out”, meant some inadvertent, non-provocative touching may have
happened.23 Following this exchange, the complainant conceded that the touching
“wasn’t deliberate”.24
37. Having regard to the above, I find that, even if some touching occurred, it was
inadvertent, unintended and transitory. While I accept that the complainant may
have felt uncomfortable and disconcerted by it, the touching was neither
deliberate nor sexual in nature.
38. The complainant claimed that she raised the touching incident with Mr X and
with the direct manager. Both denied this. I accept their evidence that they did
not know about the complaint.
39. Mr X agreed that he had a number of difficult interactions with the complainant,
including on one occasion after raising concerns about her re-shelving accuracy.
He also agreed that on one occasion, when showing her how to use a computer,
he grew frustrated and swore at her. He concedes this was inappropriate.
40. Under cross-examination by the complainant, Mr X agreed that he was not a
“shiny, happy person.”25 The complainant claimed that she was a happy person,
and this caused conflict between them. There was little evidence before the
Tribunal as to the complainant being a particularly happy person, but a hearing is
hardly the place to display those traits. What is apparent, on any view, is that there
were personality conflicts between Mr X and the complainant. Mr X frankly
conceded that he struggled with training the complainant, and that after some
23 Transcript of proceedings 23 November 2018 page 177, lines 25-26 24 Transcript of proceedings 23 November 2018 page 177, lines 40-41 25 Transcript of proceedings 23 November 2018 page 165, lines 8-10
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adverse interactions, he googled her, formed a view about her behaviour and
personality on the basis of what he found online, and then tried to minimise his
interaction with her.26
41. The direct manager agreed that she was made aware fairly early in the
complainant’s employment that there were difficulties in the complainant’s
working relationship with Mr X, and that these difficulties culminated with Mr X
swearing at the complainant. She held an informal meeting in her office, at which
she asked the complainant and Mr X to share brief life experiences in the hope of
building a better relationship. Mr X apologised the complainant for swearing at
her. They shook hands.
42. I accept that the complainant did not consider informal mediation to be an
appropriate response, but I am not satisfied that she said so to the direct manager
at the time, or until much later. I am satisfied the informal meeting was an
appropriate enough response, given the information before the direct manager at
the time, and having regard to the brief period of the complainant’s employment
with the Territory.
43. On or around 30 May 2017, the complainant attended an all-staff meeting and
made some comments to Mr B, an senior executive service officer, about how
much she liked working at the service. The respondent appeared to suggest that
this was confirmation that nothing was amiss in the workplace at that time. I do
not accept that — it would not be surprising if a temporary employee, unsure of
her position and inexperienced in the public service, did express some favourable,
if not genuinely held, comment to a senior officer in the hope of making a good
impression. The same may be said of early communications with the senior
manager.
44. The next incident took place approximately one month into her placement. This
was the incident where Mr X allegedly sat on the complainant’s lap, which she
asserted was sexual harassment. At the hearing, the complainant conceded that
she was sitting at Mr X’s desk, and he was speaking on the phone when he sat
26 Transcript of proceedings 23 November 2018 page 159, line 32
14
down, and the event was “very brief and was very sudden.”27 Mr X did not
remember the incident.
45. Having regard to this evidence, I am prepared to accept that the incident happened
— I do not accept the complainant was simply making it up. However, I am not
satisfied that the incident was of a sexual nature, or indeed anything other than a
momentary, distracted mistake by Mr X.
46. The complainant also alleges that during her employment there was an Italian
man who would come and deliver things and he was called “wog” in front of her
eyes, although her evidence does not say by who. In her oral evidence, she said
that she overheard herself being called a “wog” and that the direct manager called
her “woggy” to Ms M.28 This later oral latter evidence possibly contradicts her
written statement, in which she claimed she only heard rumours the direct
manager had called her a wog.29 Ms M did not give evidence, but the direct
manager strongly denied the allegation. I accept the manager’s denial, but I am
also prepared to accept, in the absence of any evidence from Ms M, that she or
some other colleague may have used the offensive term, perhaps when repeating
rumours about what other persons were alleged to be saying.
47. By late May 2017, the direct manager began to grow concerned about the
accuracy of the complainant’s shelving and selections and also her interaction
with colleagues. By at least early to mid-June 2017 she had begun to raise those
concerns with the senior manager. Unfortunately, other than Mr X on one
occasion commenting to her on her re-shelving accuracy (advice that does not
appear to have been well received by the complainant), there is nothing to suggest
that these concerns were raised with the complainant.
48. The complainant further alleged that in early June 2017, while she and Mr X were
working in a confined space, Mr X fell against her and either pressed his body
against her or attempted to kiss her on the lips.30 Unlike the other two incidents,
the complainant maintained this incident was absolutely deliberate and she “was
27 Transcript of proceedings 23 November 2018 page 180, line 18 28 Transcript of proceedings 22 November 2018 pages 58-59 29 Applicant’s submissions 11 October 2017 [31] 30 Transcript of proceedings 22 November 2018 page 58, line 16
15
not falling for the tripping thing.”31 Mr X has no memory of the event and indeed
could not recall any event that met the description of tripping or falling near the
complainant.32
49. I accept that Mr X has no recollection of any event that could be described as
tripping or falling near the complainant. On balance, I accept that something
happened that caused the complainant to be disconcerted, but I am also satisfied
that, whatever that event was, it was again accidental, momentary and neither
deliberate nor sexual in nature.
50. On 2 June 2017 the complainant engaged in a verbal altercation with another
employee, Ms M. The direct manager became aware of the dispute because the
complainant and Ms M made their way to her office toward the tail end of it.
The exact words spoken during the exchange was the subject of some dispute, but
as Ms M did not attend the hearing, I accept the complainant’s uncontested
evidence that Ms M suggested to her that if she did not stop complaining she
would lose her job. The complainant in turn said words to the effect “gee, there’s
a lot of bitching around here.”33 When this came to the attention of the direct
manager, she directed both women to “stop arguing.”34
51. On 9 June 2018, the complainant asked the direct manager for permission to leave
work early, explaining that she had commenced work at 7:39am that morning.
Although permission was granted, the direct manager advised her that she was
not to attend the workplace before working hours, both because she could not
vary her hours and also because it was unsafe.
52. The complainant questioned why she had been given such a direction when other
staff had not. At the hearing, it became apparent from the evidence of Mr X that
while there was an official direction for staff not to enter the workplace early,
other staff (including Mr X) did so in breach of the policy, and were perhaps not
subject to the same stern words and directions as the complainant.
31 Transcript of proceedings 22 November 2018 page 58, line 17 32 Transcript of proceedings 23 November 2018 page 161, lines 1-2 33 Transcript of proceedings 22 November 2018 page 36, lines 20-21 34 Exhibit R6, paragraph 13
16
53. There is not really enough information before the Tribunal for me to draw any
conclusions about the rationale for this policy. However, while on one level I am
reluctant to excuse differing treatment of similar workers, I can understand why
the complainant’s manager may be more tolerant of minor breaches by a long
standing, well trusted employee than by a newer recruit. In any case, Mr X
confirmed that he had also been spoken to about entering the building early and
did not do it anymore.
54. Sometime in early June 2017, the direct manager sent the complainant an email
invitation to a meeting to discuss her performance. The meeting was scheduled
for 2pm on 14 June 2017. The complainant did not attend the meeting on time.
The direct manager, who was located in the same building, did not go and get her.
The time for the meeting passed with the direct manager in her office, doing other
work, and the complainant working in her work area. Later that afternoon, the
direct manager went to the complainant’s work area and asked why she did not
attend the meeting. The evidence of the witnesses differs as to the tone of the
conversation, but I do not doubt that, justifiably or not, the complainant took the
question as a criticism, and a public one at that.
55. The complainant said that she simply forgot about the meeting. I accept this
evidence. While not ideal, in a busy environment where the complainant is not
sitting at a desk with the benefit of an Outlook reminder, forgetting it is
understandable.
56. At the hearing the complainant asked why, given the importance of the meeting,
her manager did not go and get her. This is a good question. The direct manager’s
explanation that she was “busy”35 and had work that she was required to
complete36 is no doubt true, but this was an important meeting, intended to
provide necessary feedback to a worker whose employment was in jeopardy. It
should have been a priority. I was left with the impression that the direct manager
simply did not want to deal with the difficult complainant, and so chose not to on
this occasion. While understandable on one level, it was also unfortunate.
35 Transcript of proceedings 22 November 2018 page 95, line 5 36 Transcript of proceedings 22 November 2018 page 95, line 7
17
57. The complainant apologised to the direct manager both personally and then by
email on several occasions for missing the performance meeting. The direct
manager did not respond, other than to say on one occasion that she would
organise another meeting at a later time.
58. During the course of 15 June 2017, the complainant approached the direct
manager on several occasions, both to apologise (again, verbally) for missing the
meeting and to ask why her emails had not been responded to. Although the
complainant probably did not intend this, it is apparent that the direct manager
found the repeated apologies and questions intimidating and difficult to deal with.
59. Late in the afternoon on 15 June 2017 the complainant had a brief meeting with
the direct manager to get her timesheet signed. At this meeting she told the direct
manager that she felt that she needed counselling. The direct manager asked:
“what for?” The complainant did not answer, except to say that she thought she
was entitled to counselling. Her manager confirmed that she was so entitled.
60. The manager’s question of “what for” was somewhat clunky and unfortunately
worded. However, I do not ascribe to it any of the negative connotations that the
complainant does. In any case, the counselling was arranged, although the
complainant’s employment was terminated before arrangements were completed.
61. Later that afternoon, the direct manager prepared a lengthy file note setting out
what happened at the 15 June 2017 meeting.37 She was clearly concerned.
62. On Friday 16 June 2017, the complainant sent an email to the direct manager
regarding a skin irritation which she alleged was caused by exposure to books.
She asked whether the Territory could assist with the purchase of gloves. She also
enquired about a response to her email apologising for her failure to attend the
14 June 2017 meeting and apologised again for missing it. The direct manager
responded by email, asking that she fill out a work health and safety report on the
service’s computer system.38 She also set out, again in the email, that she did not
feel it necessary to respond to the complainant’s previous emails, and asked the
37 Exhibit R6, annexure LP1 38 Exhibit R6, annexure LP2
18
complainant not to discuss work issues with her while she was on duty serving
customers. The tone of the direct manager’s email is curt. It is quite evident that
the relationship between the two colleagues was on a downwards slide.
63. On 20 June 2017 — that is, the following Tuesday — the complainant sent an
email in reply.39 She said she would seek a medical certificate for the skin
irritation. She also promised to “never speak to you while you are on duty for
customer service again.” Tone is not conveyed well through an email, so it is
difficult to tell what tone was intended — that is, whether it is conciliatory or
passive-aggressively sarcastic. The direct manager appears to have assumed the
latter.
64. As best I can tell, it was around this time that, the complainant alleges, her
manager referred to her as a ‘princess’, apparently in response to the request for
gloves. The complainant’s evidence is inconsistent as to whether she heard this
directly, or whether it was repeated by Ms M as a rumour from elsewhere.
The manager denies making the comment. As with the allegation about the use
of the word ‘wog’, I am prepared to accept that there may have been gossip
around the workplace that the direct manager called the complainant a princess,
but I take it no higher than that.
65. In late June 2017, the senior manager became aware of the aforementioned email
exchange between the complainant and the direct manager. She called Manpower
and informed them of the direct manager’s concerns with the complainant’s
underperformance and interpersonal skills. The senior manager also told
Manpower that she intended to end the complainant’s appointment unless her
performance improved. Manpower said that they would speak with the
complainant and clarify expectations.40
66. On 28 June 2017, the complainant was called into a meeting at Manpower. At
that meeting Manpower advised the complainant that the respondent had
concerns about her work output. It appears that this was the first time substantive
feedback was provided to the complainant, be it formally or informally.
39 Exhibit R6, annexure LP2 40 Exhibit R7 [12]
19
Manpower later advised the senior manager that they had clarified work
expectations, and also that they had advised the complainant that she was not to
discuss the meeting with the respondent’s staff. On that basis, the senior manager
decided to allow the engagement to continue.
67. On the morning of 29 June 2017 (ie the next morning), the complainant
approached the direct manager and requested a meeting to discuss her work
output. At the start of this meeting, the direct manager asked the complainant why
she was not at an all staff meeting scheduled for 29 June 2017. I accept that the
complainant was, in fact, not aware of the meeting, and I am satisfied that the
direct manager, incorrectly, assumed that the complainant had chosen to confront
her rather than attend the meeting. The direct manager then said she would check
her diary for an appropriate meeting time, but also said she did not want to
continue the conversation about the complainant’s performance without another
person present. There is some disagreement about what else was said. I have little
doubt that the complainant was very upset and emotional, and was
characteristically assertive. The direct manager, determined not to engage in a
conversation with her, left her office.
68. Following this incident, the complainant sent an email to both the direct manager
and the senior manager expressing concern about how she was being treated. The
email contained personal information that I do not need to repeat. The
complainant also stated that she would appreciate feedback and more
communication about her key performance indicators and that she would
appreciate being told in private about disciplinary matters. She also said that:
I would like an apology for the way I have been spoken to as I am not a liar
and this morning I was made to feel like I am as [the direct manager] would not
believe that I have not received an email to attend a staff meeting.
69. Again, while I can appreciate the complainant’s frustration at the situation she
found herself in, the tone of her email was very unhelpful.
70. When the senior manager was advised of the morning discussion between the
direct manager and the complainant, she interpreted it as a direct breach of the
direction given to the complainant to not discuss the Manpower meeting with
colleagues. She contacted the manager at Manpower and terminated the
20
complainant’s assignment at the service. The inevitable consequence of this was
the termination of the complainant’s employment.
71. In an email to the HR Department, the senior manager described her actions as
follows:
When I spoke to Manpower, they were initially cautious about terminating
[the complainant] as she has lodged a complaint against us – which they
felt if they then terminated her may have fair work issues.
However, following our conversation they now understand that – despite
their explicit instructions to NOT discuss the meeting she had with them or
the topics covered, [the complainant] attempted to engage [the direct
manager] in a (increasingly heated) conversation re same at 8.20am this
morning – they are now comfortable terminating her employment…41
72. The senior manager had instructed Manpower not to tell the complainant her
assignment was ending while she was at work, as she might create a ‘scene’.
Manpower then called the complainant into their offices and, on 30 June 2017,
terminated her employment.
73. Following the meeting, a staff member at Manpower sent the complainant a letter
confirming that her employment was terminated. A copy was provided to the
tribunal at the hearing. The letter sets out a number of basis for the decision,
including:
(a) inappropriately interrupting other staff members and managers to discuss
matters relating to herself;
(b) walking in on a manager and interrupting a conversation to discuss matters
relating to herself;
(c) her volume of work was well behind that of other employees; and
(d) inappropriate use of language, including calling another employee a ‘bitch’.
74. The letter also asserts that, at the meeting on 28 June 2018, the complainant had
had been:
advised that if you needed to discuss anything such as lateness for work
that you needed to notify the client, then you should send an email and make
41 Exhibit R7, annexure MG3
21
an appropriate time to have a discussion rather than interrupt the client
manager.42
75. It is apparent from the hearing that the complainant interpreted this passage as an
allegation that she attended work late. She produced work login sheets to prove
this never happened. For the record, I am satisfied that late attendance to work
was never a basis for the termination of the complainant’s employment.
76. I am also not convinced, having heard the senior manager’s evidence, that the
letter clearly articulates the reasons for the termination of the complainant’s
employment at all. It is cursory at best. Such a termination letter is the unfortunate
consequence of a labour hire organisation, external to the workplace, terminating
the complainant’s employment on the basis of information from an offsite senior
manager, relaying information from the direct manager. It appears that relatively
informal second-hand and even third-hand information was relied upon.
77. During the hearing, I allowed the complainant a considerable amount of leeway
in the questioning of witnesses. The reason for this was that it was apparent that
the complainant was confused about the basis for the termination of her
assignment, and hence her employment. This was understandable, as (at least on
the evidence before me) at no point was she given clear feedback as to what about
her conduct led to her employment being terminated.
78. On one level, the lack of feedback is a consequence of the precarious nature of
the complainant’s employment. A purpose of engaging contract labour is
flexibility and no doubt there are many circumstances where this flexibility is
essential, but one consequence is it allows staff to be engaged on short-term
arrangements in circumstances where their employment can be terminated
without an excessively long process — or indeed without any real due process at
all. Whether this is a good or bad thing is not a matter for this Tribunal, but it was
the brutal reality for the complainant.
42 Exhibit A1
22
79. Accordingly, I understand the confusion the complainant felt when she was,
effectively, summarily terminated. I note here that I am not suggesting that the
reasons for the termination of the complainant’s employment are not evident to
an objective observer — but they were not evident to her.
80. I agree that the termination process, at least, was unfavourable treatment. But that
alone does not make it discrimination. This leads to some observations that need
to be made before I deal with the substance of this claim.
Some preliminary observations
81. Before considering the application before me, it is necessary to set out what issues
are not before the Tribunal.
82. This is not an application for unfair dismissal. The Fair Work Act 2009 (Cth)
provides a means by which some protected employees may contest the
termination of their employment on the basis that the termination was harsh,
unjust or unreasonable. Were this an unfair dismissal application, I would be able
to, for example, consider procedural questions such as the fact that it is apparent
that no person at the service had a frank conversation with the complainant about
her behaviour or her performance. But that is not the issue before the Tribunal.
83. This is also not a review of the respondent’s internal management policies. There
is some evidence before me that the senior staff at the service may have taken
inconsistent approaches towards the enforcement of policies for different staff —
albeit this may be explainable by the circumstances — and the complainant
questioned whether one of those policies made any sense. But again, this is not
the case before me.
84. The only issues before the Tribunal are those that fall under the purview of the
Discrimination Act.
85. The Discrimination Act is not a panacea to resolve all disputes between
individuals, or even all forms of unfavourable or discriminatory treatment.
Rather, the Discrimination Act protects persons who have ‘protected attributes’
from discriminatory treatment that relates to or arises from those attributes, as
23
well as protecting people from sexual harassment and victimisation. It is only
issues within the ambit of the Discrimination Act that this Tribunal can determine.
The Discrimination claims
86. The Discrimination Act applies to discrimination against a person on the ground
of certain ‘protected attributes’ as defined in section 7 of that Act. ‘Age’ is one
protected attribute43 and ‘race’44 is another.
87. A ‘protected attribute’ includes a characteristic that people with that attribute
generally have, or are generally presumed to have, or are thought to have. The
grounds upon which the complainant alleges age and race discrimination are set
out in paragraph 7 above.
88. Having had regard to the material before me, I am not satisfied that the
complainant possesses, for relevant purposes, the protected attribute of ‘age’, as
I am not convinced that any of the characteristics relied upon by the complainant
can truly be said to be related to age. I am also not convinced that the attributes
that the complainant relies upon in relation to ‘race’ can truly be said to be
characteristics of the Croatian culture. But, taking the complainant’s case at its
highest, I will assume she relevantly possesses the claimed protected attributes or
characteristics of that attribute.
89. ‘Discrimination’, for the purposes of the Discrimination Act, is defined in
section 8(1) of that Act to occur when a person “discriminates either directly or
indirectly against someone else”.
90. Under the Discrimination Act, ‘discrimination’ may take one of two forms: direct
or indirect. Pursuant to sections 8(2) and 8(3) of the Discrimination Act:
(a) a person directly discriminates against someone else if the person treats, or
proposes to treat, another person unfavourably because the other person has
one or more protected attributes;
(b) a person indirectly discriminates against someone else if the person
imposes, or proposes to impose, a condition or requirement that has, or is
43 Discrimination Act section 7(1)(b) 44 Discrimination Act section 7(1)(r)
24
likely to have, the effect of disadvantaging the other person because the
other person has one or more protected attributes.
91. Although it is not entirely clear on the face of the complainant’s application and
supporting documents, this case has been run on the basis of alleged direct
discrimination, being unfavourable treatment because of age and/or race.
92. In a case of ‘direct discrimination’, the prohibition lies against treating a person
‘unfavourably’ because of a protected attribute.
93. The Discrimination Act does not define ‘unfavourably’ or ‘unfavourable
treatment’, but a body of case law has developed which gives meaning to the
term.
94. Most relevantly, in Prezzi v the Discrimination Commissioner (affirmed by the
Federal Court in Edgely v Federal Capital Press of Australia Pty Ltd [2001] FCA
379 at [54]-[57]) the then discrimination tribunal said that:
22. The ACT Discrimination Act … does not invite a comparison between
the way in which a person who has a particular attribute is treated
compared with a person without that attribute or who has a different
attribute. All that is required is an examination of the treatment
accorded the aggrieved person or the conditions upon which the
aggrieved person is or is proposed to be dealt with. If the
consequence for the aggrieved person of the treatment is
unfavourable to that person, or if the conditions imposed or proposed
would disadvantage that person there is discrimination where the
treatment is given or the condition is imposed because of the relevant
attribute possessed by the aggrieved person. 45
95. Put another way, ‘unfavourable treatment’ encompasses acts or omissions which
result in some detriment, being loss, damage or injury.46
96. I outlined the alleged incidents of unfavourable treatment above at paragraph 9.
I have no doubt that each incident, assuming that it happened, was unpleasant.
However, not every uncomfortable or unpleasant thing that happens to a person
at work is ‘unfavourable treatment’ under the Discrimination Act. Many of the
incidents relied upon by the complainant are not sufficiently substantial to be
45 [1996] ACTAAT 132 [22] 46 Cooley v Australian National University [2007] ACTDT 2 [44]
25
considered a ‘detriment’ in the sense the word is used in the Discrimination Act.47
However, I am, again, prepared to take the complainant’s case as its highest, and
consider the alleged incidents as part of a pattern of conduct rather than
individually. I note that, in any case, a sufficient number are unfavourable such
that the matter can proceed to the next step. In particular, there is really no doubt
that the termination of the applicant’s employment, at the least, is a detriment.
97. However, even assuming that these acts — individually or collectively —
constitute unfavourable treatment, the Discrimination Act is breached only where
the “true basis or real reason” for that conduct is the existence of a protected
attribute (in this case, the applicant’s age48 or her race or a characteristic thereof).
There must be a proven causative relationship between the discrimination and the
protected attribute.
98. The starting point is that complainant bears the onus of establishing this causative
link.49 However, there is a rebuttable presumption that discrimination has
occurred if the complainant establishes unfavourable treatment and presents
evidence that enables the tribunal to decide, in the absence of any other
explanation, that the treatment was because of the protected attribute.50
99. The test for direct discrimination can be difficult to meet. It requires that a
complainant establish the reason for the respondent’s conduct. There is rarely
direct evidence of a discriminatory intention by the decision-maker — unusual
are the cases where a complainant can point to a ‘smoking gun’ in the form of
correspondence, records or documents that establish that a protected attribute was
the reason for unfavourable treatment, and discrimination may in any case be
subconscious.51 The difficulties in meeting the test is why legislation in some
other jurisdictions reverses the onus.52
47 For example, without more, the incidents set out in paragraphs 9(e), (f), (g), (i) and (m) are
unlikely to amount to a detriment 48 See Purvis v New South Wales (2003) 217 CLR 92 49 HRC Act section 53CA 50 HRC Act section 53CA(2)(a) 51 Sharma v Legal Aid (Qld) [2002] FCAFC 196 [40] 52 Fair Work Act 2009 (Cth) section 361
26
100. In the absence of direct evidence of the reason for unfavourable treatment,
inferences may be drawn from circumstantial evidence.53 The complainant is
asking that the Tribunal draw such an inference in this case. She relies upon the
lengthy list of alleged incidents of unfavourable treatment, and asks: “why else
… was I treated differently?”54
101. I decline to draw the inferences requested. There is simply nothing in the evidence
before the Tribunal that could found an inference that any of the incidents of
alleged unfavourable treatment were due to age or race or any characteristic
thereof, or that any of the unfavourable events were due to the complainant’s age
or race.
102. The possible exception is the alleged name calling — that is, the allegation that
the complainant was called a ‘wog.’ However, for reasons set out above, I am not
satisfied that this incident happened as alleged.
103. I reiterate to the complainant that that does not mean that I do not believe that
some, or even most, of the incidents of alleged unfavourable treatment occurred
in some form. But I do not believe that there is any causative link between the
complainant’s race or age and those events.
104. The complainant has asked: what other cause can there be? Having heard the
evidence of the parties over the two days of hearing, the inference I can draw is
that the unfavourable treatment was a direct result of the complainant’s own
conduct and behaviour and the nature of her interactions with her colleagues,
none of which are characteristics of age or race.
The sexual harassment allegations
105. Section 59(3) of the Discrimination Act provides that it is unlawful for a principal
to subject a contract worker to sexual harassment.
53 Sharma v Legal Aid (Qld) [2002] FCAFC 196 [40] 54 Applicant’s email to the Tribunal 21 September 2018
27
106. ‘Sexual harassment’ is defined in s 58(1) of the Discrimination Act, relevantly,
to occur where:
A person subjects someone else to sexual harassment if the person makes
an unwelcome sexual advance, or an unwelcome request for sexual favours,
to the other person or engages in other unwelcome conduct of a sexual
nature in circumstances in which the other person reasonably feels
offended, humiliated or intimidated.
107. Each of the allegations of sexual harassment are made against Mr X. Mr X
vehemently denies having intentionally engaged in harassing behaviour. While
he concedes that his crotch may have come into contact with the complainant’s
elbow instructing her to use a computer, this was accidental. He has no memory
of the other two incidents at all.
108. The onus of proof in sexual harassment allegations lies with the complainant.
That onus is the balance of probabilities, but given the seriousness of the
allegations, and the serious consequences for the accused, findings of sexual
harassment should only be found where the evidence is such that the Tribunal
must “feel an actual persuasion of its occurrence or existence”55 of the facts as
alleged.
109. Although the complainant’s evidence was sometimes inconsistent, I do not
believe that she was simply fabricating the allegations against Mr X. As set out
above, I am satisfied, on the balance of probabilities:
(a) that at some stage, while Mr X was demonstrating the use of the computer
to the complainant, the complainant’s elbow came into contact with Mr X’s
crotch — this does not seem to be contested; and
(b) that at some stage, Mr X, while distracted or talking on the telephone,
accidentally sat down, or commenced to sit down, in his chair while the
complainant was still sitting it, but the incident was very quick and
momentary; and
(c) at some time during the complainant’s employment, while Mr X and the
complainant were working in a small area, Mr X may have moved or
55 Briginshaw v Briginshaw [1938] 60 CLR 336 [361]
28
stumbled toward the complainant. I am not satisfied that he fell on her, or
that he attempted to kiss or hug her.
110. It is not in contest that Mr X swore at the complainant. Such conduct is
inappropriate, but it was not suggested that it was sexual harassment.
111. The definition in section 58 of the Discrimination Act contains both subjective
and objective elements. The relevant subjective element, in this case, is whether
the conduct was of a ‘sexual nature’ or was a ‘sexual advance’. The objective
element is whether the complainant reasonably felt offended, humiliated or
victimised. The intention of the respondent does not appear to be a relevant
consideration, although it may perhaps be influential on whether the conduct
could be considered ‘sexual’ in nature.56 The definition would encompass a single
action, as well as a succession of actions.
112. None of the three incidents, as proven, amounts to a “sexual advance” or a
“request for sexual favours”. Can they be considered “unwelcome conduct of a
sexual nature”?
113. Conduct of a sexual nature is defined inclusively in section 58(2) as follows:
conduct, of a sexual nature, includes the making of a statement of a sexual
nature to, or in the presence of, a person, whether the statement is made
orally or in writing.
114. No court or tribunal has attempted a more definitive definition of ‘sexual
harassment’ or ‘sexual conduct’.57
115. Authorities indicate that some forms of unwanted touching will amount to
conduct of a sexual nature58 — for example, in Elliott v Nanda and Another
(2001) 111 FCR 240 the Federal Court held that conduct such as patting the
complainant on the bottom, trying to kiss her, massaging her shoulders and
brushing against her breasts was conduct of a sexual nature. That kind of conduct
is much more serious than what is alleged here.
56 For example, tendency evidence was admitted in Robinson v Goodman [2013] FCA 893 57 Neil Rees, Simon Rice and Dominique Allen, Australian anti-discrimination and equal opportunity law
(The Federation Press, 3rd edn, 2018) [12.3.12] 58 See O’Callaghan v Loder [1983] 3 NSWLR 89 [103]
29
116. Not all unwelcome physical conduct amounts to conduct of a sexual nature. As
was observed by Mansfield J in Poniatowska v Hickinbotham, in relation to a
similarly worded provision in section 28A of the Sex Discrimination Act 1984
(Cth):
I think [sexual conduct] involves some conduct which invites or otherwise
explores the prospect of the object of such conduct participating or
engaging in some form of sexual behaviour or which suggests that the
object of such conduct may have done so or may do so, or is a person of a
character empathetic to such behaviour.59
117. None of the alleged incidents, as proven, are of an inherently sexual nature. Each
incident did involve some degree of personal contact, or possibility of it, and I
accept the complainant’s evidence the contact was unwelcome. But while any
form of unwanted touching is unfortunate, to constitute sexual harassment the
touching must be sexual in nature. There is nothing about Mr X’s conduct that
suggests that the conduct was sexual in nature.
118. To cast minor, accidental physical encounters that may occur between work
colleagues in a close, sometimes physical, workplace as potentially ‘sexual’,
without more, would be to unreasonably scrutinise everyday interactions and
make it extraordinarily difficult for men and women to work together in such an
environment. That is not a realistic or practical interpretation or application of the
Act.
119. The complainant’s alternative position appeared to be that, even if the incidents
are not themselves sexual, three ‘accidental’ incidents is too many to be
coincidental, and that I should draw from the incidents a pattern or tendency on
Mr X’s part to engage in unsolicited touching.
120. As a general statement, I agree that conduct that on its own may not amount to
conduct of a sexual nature may do so if it forms “part of a broader pattern of
inappropriate sexual conduct.”60 However, to draw together a sequence of events,
there must still be something sexual about some part of the conduct. I am satisfied
59 [2009] FCA 680 [294] 60 Shiels v James [2000] FMCA 2 [72]; Harwin v Pateluch [1995] HREOCA 23; Robinson v Goodman
[2013] FCA 893
30
that the evidence in this case does not establish, or even suggest, a single incident
of sexual conduct, let alone a pattern of inappropriate sexual conduct.
121. Mr X was an impressive, frank witness. He made concessions that were adverse
to himself on several occasions. I have no hesitation in accepting his evidence
that he did not intend to touch the complainant in the first incident. I also accept
that he cannot even remember the second and third incidents, and hence any
touching was accidental. I am satisfied that each of the interactions were
accidental, and were typical of the kind of accidental interactions that happen in
a workplace and leave no lasting memory or impression.
122. In reaching this conclusion, I do not doubt that the complainant was disconcerted
and perhaps offended by the incidents, which may be why she remembers them
and Mr X does not. But that alone does not colour them as sexual in nature when
they clearly were not.
123. I note that the second limb of the test for sexual harassment is an objective test as
to whether it was reasonable for the victim, having regard to all the circumstances,
to feel offended, humiliated or intimidated. Cases rarely turn on this issue — once
unwelcome sexual conduct is found to have occurred, reasonableness is rarely in
dispute.61
124. While I accept the complainant may have felt offended by each of the incidents,
I am not convinced that such feelings were reasonable. However, in practice, it is
difficult to disentangle the question of the reasonableness of the complainant’s
feelings from my findings that the incidents where not sexual in nature.
Ultimately, however, I do not need to consider this issue further, as I am satisfied
that the three events do not constitute sexual harassment.
125. For completeness, I note that during the hearing (although not in the original
referral from the HRC), the complainant alleged that Ms M had told her that Mr X
referred to the complainant as “my girl” or to both the women as “my girls”. She
61 Neil Rees, Simon Rice and Dominique Allen, Australian anti-discrimination and equal opportunity law
(The Federation Press, 3rd edn, 2018) [12.3.26] citing Fiona Pace, ‘Concepts of “Reasonableness” in Sexual Harassment Legislation: Did Queensland get it right?’ (2003) 3(1) QUT Law and Justice Journal
31
suggested that this was further evidence of Mr X’s sexual harassment or
disrespect toward women. I accept Mr X’s evidence that he never used the term
as alleged.
Victimisation
126. Section 68 of the Discrimination Act provides that:
(1) It is unlawful for a person (the first person) to subject, or threaten to
subject, another person (the other person) to any detriment because —
(a) the other person, or someone associated with the other person —
(i) has taken discrimination action; or
(ii) proposes to take discrimination action; or
(b) the first person believes the other person, or someone associated with
the other person —
(i) has taken discrimination action; or
(ii) proposes to take discrimination action.
127. The complainant did not particularise this complainant with any precision.
However, as best as I can ascertain, the complainant says that she was victimised
either because she made a complaint of discrimination or sexual harassment, or
because the respondent believed she may make one. One such complaint was the
alleged complaint to the direct manager about Mr X. The other potential
complaints are not well-identified.
128. These are two parts to this claim. The first is the alleged conversation with Ms M,
in which Ms M suggested that if the complainant kept complaining, her
engagement would be terminated. Ms M was not called as a witness and therefore
the complainant’s evidence about the conversation was unchallenged.
Accordingly, I am satisfied, on the complainant’s evidence, that Ms M made a
comment to her about potentially losing her job if she continued to complain. The
complainant may well have interpreted this was some kind of warning — and
perhaps, indeed, it was. However, I am not satisfied that the making of the
comment, by Ms M, amounted to subjecting the complainant to a detriment.
Ms M was a relatively low level, casual employee, with little role in the
management of the staff and no evident capacity to influence staffing decisions
within the organisation. Accordingly, there is nothing to suggest that Ms M
subjected the complainant to a detriment or, if she did, that she did so as an agent
of the respondent.
32
129. The second part of the complaint was whether, more broadly, the respondent or
its agents sought to cease the complainant’s employment because she sought, or
they thought she would seek, to exercise relevant rights.
130. Having regard to the evidence before me, including the oral and written
statements of the direct manager and senior manager, I am not satisfied that the
respondent, or its agents, were aware of the complainant’s allegations of sexual
harassment, or discrimination, at the time that they made the decision to terminate
her employment.
131. That said, I am satisfied that various persons within the respondent organisation
had formed the view that the complainant was demanding of time and
argumentative, and that this influenced the decision to terminate her employment,
but that is a long way from concluding that her employment was terminated
because she had taken, or proposed to take, or was believed to be proposing to
take, discrimination action.
132. As set out above, I am satisfied on the basis of the oral and written evidence of
the direct manager and senior manager that the true reason the Territory requested
that Manpower terminate the applicant’s employment was her unsatisfactory
conduct and performance.
Conclusion
133. The Tribunal is not satisfied that the respondent has engaged in unlawful
discrimination, sexual harassment or victimisation. The application is dismissed.
………………………………..
Senior Member H Robinson
33
HEARING DETAILS
FILE NUMBER: DT 8/2018
PARTIES, APPLICANT: Complainant 201808
PARTIES, RESPONDENT: Transport Canberra and City Services
COUNSEL APPEARING, APPLICANT N/A
COUNSEL APPEARING,
RESPONDENT
Mr Nigel Oram
SOLICITORS FOR APPLICANT N/A
SOLICITORS FOR RESPONDENT ACT Government Solicitor
TRIBUNAL MEMBERS: Senior Member H Robinson
DATES OF HEARING: 22 and 23 November 2018