Holmyard, Linda Dorraine v Jones, Gordon Charles t/a Wynyard Cleaning Service [1995] FCA 1048

CATCHWORDS DISCRIMINATION LEGISLATION - Commonwealth - Administrative Decisions Judicial Review Legislation - application for review of Commissioner's decision - competing versions of alleged incidents by credible witnesses - finding that burden of proof was not discharged - whether Commissioner failed to comply with procedures required by law - whether Commissioner failed to give adequate reasons for decisions Dornan v Riordan (1990) 95 ALR 451 Soulemezis v Dudley Holdings Proprietary Limited (1987) 10 NSWLR 247 Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5 Linda Dorraine Holmyard v Gordon Charles Jones - trading as Wynyard Cleaning Service No. TG 19 of 1995 Judge: Heerey J Date: 16 November 1995 Place: Hobart

IN THE FEDERAL COURT OF AUSTRALIA) ) HOBART DISTRICT REGISTRY ) No. TG19 of 1995 ) GENERAL DIVISION ) B E T W E E N: LINDA DORRAINE HOLMYARD Applicant - and - GORDON CHARLES JONES - TRADING AS WYNYARD CLEANING SERVICE Respondent JUDGE: Heerey J DATE: 16 November 1995 PLACE: Hobart MINUTE OF ORDER The Court orders that: 1. The application is dismissed NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules

IN THE FEDERAL COURT OF AUSTRALIA) ) HOBART DISTRICT REGISTRY ) No. TG19 of 1995 ) GENERAL DIVISION ) B E T W E E N: LINDA DORRAINE HOLMYARD Applicant - and - GORDON CHARLES JONES - TRADING AS WYNYARD CLEANING SERVICE Respondent JUDGE: Heerey J DATE: 16 November 1995 PLACE: Hobart REASONS FOR JUDGMENT The applicant made a complaint of sexual harassment against her employer, the respondent. Commissioner C P Webster, acting under appointment by the Minister under s 57A(1) of the Sex Discrimination Act 1984 (Cth) conducted an inquiry and gave a decision on 15 March 1995 dismissing the complaint. The applicant applies for review of that decision under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth). The ground principally relied upon is that in s 5(1)(b); namely, that procedures that were required by law to be observed in connection with the making of the decision were not observed. It is said that the Commissioner failed to give adequate reasons for his decision and therefore failed to comply with procedures required by law. It was not in dispute before me that the Commissioner was obliged by law to give reasons for his decision. He was therefore subject to the obligation described in Dornan v Riordan (1990) 95 ALR 451 at 457 where the Full Court quoted with approval a statement of Woodward J in Commonwealth v The Pharmacy Guild of Australia in these terms: It cannot be said too often that decision-makers who are subject to the Judicial Review Act and particularly formally constituted tribunals are under a clear obligation to explain their decisions in terms which can be understood by the people affected by those decisions ... See also Soulemezis v Dudley Holdings Proprietary Limited (1987) 10 NSW LR 247 at 278 to 281. The case of the applicant before the Commissioner was that she had experienced sexual harassment while working as a cleaner for the respondent between June and September 1993. She alleged six incidents as follows: 1. On the first day of her employment the respondent, while demonstrating to the applicant how to operate a polisher, stood behind her with his arms around her and pressing his body to her back. 2. Two weeks after starting work the applicant was working near the front desk of a supermarket. She was required to slide over the counter to sign a check-out book. As she slid back across the counter and jumped on to the floor the respondent slapped her on the buttocks. 3. Approximately two weeks after the second incident the complainant was operating a cleaning machine when she was approached by the respondent, who said to her words to the effect that he was going to pinch her on the breast. He then pinched her on the right breast. 4. In August 1993, shortly before the applicant was to be married, the respondent said to her words to the effect that he had better not work her too hard or she would not be any good in bed for her husband. 5. About one week after the applicant's wedding on 28 August 1993 the applicant was approached from behind by the respondent who smacked her on the buttocks. The applicant ignored this incident, whereupon the respondent said words to the effect that she did not complain now that she had married. 6. Immediately following the fifth incident the respondent told the applicant that he was going to pinch her on the breast. He then pinched her on the right breast. The Commissioner heard the matter on 22 and 23 February 1995 in Burnie. The case of the respondent was a denial that he had ever sexually harassed the applicant. As to the first incident involving the polisher, he said that it was necessary to show her how to operate it. He gave a demonstration at the hearing. He said that he had stood to the left hand side of the applicant with his arms across her arms with his hands on the controls of the machine. He demonstrated that if he had stood behind the applicant with his arms around her, as she alleged, his hands would not have reached the controls. The respondent denied that any of the other incidents described by her ever occurred. The Commissioner reviewed the evidence. He said that a number of witnesses were called by the parties. He found that the applicant was "generally a good witness". He found that the respondent: ...was a good witness. He gave evidence in both examination-in-chief and cross-examination in a straightforward and believable manner. The Commissioner noted that the bulk of the hearing was taken up with matters not directly relevant to the question of whether any of the six incidents did in fact occur. The Commissioner made findings as to facts which were to the effect that the applicant made complaints to various members of her family that she was being sexually harassed by the respondent; that she voluntarily offered him lifts home; that she appeared to be on friendly terms with the respondent and invited him for drinks after her wedding; that she often called out to the respondent and sought his assistance at work; that there were three or four co-employees working at the store at the time of the alleged incidents and often up to 10 employees of the company that owned the store; and that the respondent approached the applicant's mother with the intention of getting her to have the daughter withdraw the allegations. The Commissioner expressed the opinion that those findings ...shed very little light on the main question to be determined; that is, whether or not any or all of the six incidents of sexual harassment by the applicant occurred. He then continued: The fact that Ms Holmyard complained of sexual harassment to friends while still employed by Mr Jones to an extent supports her case but on the other hand the fact that she was happy to have Mr Jones accompany her in a car, appeared to be on friendly terms and frequently called upon him for assistance is not consistent with her trying to avoid Mr Jones as he had sexually harassed her. The answer to the question of whether the incidents occurred depends mainly upon the credibility of the complainant and Mr Jones and whose evidence is accepted. I accept the evidence of Mr Jones as to how he demonstrated the use of the polisher to Ms Holmyard on her first day at work. I have had the advantage of observing a demonstration of the polisher and the difficulties that Mr Jones would have had in demonstrating the use of the polisher in the manner described by Ms Holmyard. I also note that Ms Holmyard did not consider that the demonstration of the polisher by Mr Jones was untoward until after the second incident. Ms Holmyard was also equivocal about whether or not to proceed with this allegation. In relation to the fourth incident, I accept the evidence of Mr Jones and Irene Cure that it was Ms Holmyard who made the statement which Ms Holmyard now attributes to Mr Jones. I therefore find the fourth incident did not occur as described by Ms Holmyard. So far as the other incidents of sexual harassment are concerned, I can find no reason to prefer the evidence of either Ms Holmyard or Mr Jones. Both were good witnesses. Both were unshaken by cross-examination. Weighing the complainant's evidence, given on oath with that of Mr Jones's, also given on oath, I see no reason to prefer the evidence of one to the other. The burden of proving that sexual harassment did occur is upon the complainant. I am not satisfied after weighing the evidence of the complainant against that of the respondent that the complainant has proved her case to the standard required by the seriousness of the allegations, or even on the balance of probabilities. I therefore dismiss the complaints of sexual harassment made by complainant. In my opinion, the Commissioner adequately discharged the obligation which lay on him to give reasons for the decision that he reached. It was not in dispute before me that the applicant bore the burden of proof at the hearing. The Commissioner reviewed the evidence and gave rational reasons for rejecting the complaint in respect of two of the alleged incidents. In relation to the remaining four it was a case of oath against oath. The Commissioner was faced with competing versions given by apparently credible witnesses. If he could not find any particular reason for preferring one to the other it was his plain duty to say so. That is what he did. It is not at all uncommon in a forensic setting for competing versions of an alleged incident to be given, one of which must be untrue. It is also common for the tribunal of fact not to have the assistance of other evidence or circumstances which might assist in making a finding of fact. The Commissioner took the view that such was the situation in relation to the remaining four incidents. Of course he might have concluded that convincing evidence in relation to the other two incidents showed the applicant's evidence as deliberately untruthful and as a consequence she should not be accepted in relation to the remaining four incidents, notwithstanding her unshaken performance in cross-examination. However these were questions of fact which were entirely a matter for the Commissioner. The complaint is that he failed to give reasons for his decision. He did give a reason - the failure of the applicant to satisfy the burden of proof which undoubtedly she bore. The attack on the validity of the decision therefore fails. I think I should also mention that there may have been some misunderstanding of the expression used in the passage already quoted where the Commissioner says: The answer to the question of whether the incidents occurred depends mainly upon the credibility of the complainant and Mr Jones and whose evidence is accepted. That sentence does not mean, as I suspect it might have been thought to mean at one stage by the applicant or her advisers, that the Commissioner is there accepting the applicant's evidence. Such a construction seems to have been the basis for part of the argument in which it was contended that the reasons were inconsistent in accepting the applicant's evidence and yet dismissing her complaint. Properly understood, the Commissioner is noting that the question whether the incidents occurred turned on credibility and which of the two witnesses was to have their evidence accepted by him. His reasons make clear that in the absence of any other evidence, and applying the relevant burden of proof, he was unable to accept the applicant's evidence and thus find that the incidents occurred as she alleged. The application will be dismissed. Since both parties were legally aided no order for costs was sought.