Taylor v Sciberras [2004] NSWADT 104

CITATION: Taylor v Sciberras [2004] NSWADT 104 DIVISION: Equal Opportunity Division APPLICANT PARTIES: Lisa Taylor RESPONDENT Sam Sciberras FILE NUMBER: 031077 HEARING DATES: 9/10/2003-10/10/2003, 15/12/2003-16/12/2003 SUBMISSIONS CLOSED: 12/16/2003 DATE OF DECISION: 06/01/2004

BEFORE: Innes G - Judicial Member; Nemeth de Bikal L - Non Judicial Member; Weule B - Non Judicial Member APPLICATION: Sexual Harassment - In workplace - Victimisation MATTER FOR DECISION: Principal matter LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 CASES CITED: Aldridge v Booth (1988) EOC 92-222 APPLICANT REPRESENTATION: P Griffin, barrister RESPONDENT R McCrudden, barrister ORDERS: 1. The Tribunal orders the Respondent to pay the Applicant damages in the sum of $19,150 to be paid by within 30 days of the date of publication of this decision; 2. The Respondent is to pay the Applicant costs as agreed or as assessed.

REASONS FOR DECISION INTRODUCTION 1 On 25 July 2002 Ms Lisa Taylor lodged a complaint with the President of the Anti-Discrimination Board of NSW against Mr Sam Sciberras. The complaint alleged that she had been sexually harassed and victimised in breach of the NSW Anti-Discrimination Act 1977 ("The Act)" whilst employed by Mr Sciberras. At the time of the alleged events (late 2001 and early 2002) Mr Sciberras was the proprietor of a seafood business known as Sophie's Kitchen in Port Macquarie. 2 The Act requires that allegations of discrimination must be complained of within six months of their occurrence, but provides the President of the Board with discretion to accept complaints outside this time limit. On 16 December 2002 the President exercised this discretion and accepted the parts of Ms Taylor's complaint which fell outside this time limit. The President then investigated the complaint and attempted conciliation. Conciliation was unsuccessful, and the complaint was referred to the Equal Opportunity Division of the Administrative Decisions Tribunal in June of 2003. The Tribunal heard evidence in this matter in Port Macquarie on 8 and 9 October, and 15 and 16 December 2003. Both parties - who were legally represented by Mr Griffin of Counsel for the applicant and Mr McCrudden of Counsel for the respondent - also made their submissions on the last of those days. The Tribunal reserved its decision. BACKGROUND AND CHRONOLOGY 3 Ms Taylor was, at the time of the events in question a single parent living in Port Macquarie. She had two children aged 13 and 11 at the time of the hearing. 4 Ms Taylor worked at Sophie's Kitchen from March 1999 to January 2002 as a casual shop assistant. She had been friends with the previous owners of the business, but continued in a similar role when Mr Sciberras purchased it in July 2001. The business was somewhat seasonal, and her hours varied according to how busy the business was. From the time Mr Sciberras bought the business she worked on average six to seven hours a day seven days a week. Apart from Mr Sciberras, Ms Taylor was the main employee from July 2001 to January 2002. 5 Ms Taylor's parents lived in Mt Morgan near Rockhampton in Queensland. She visited them regularly once or twice a year. 6 Mr Sam Sciberras is aged in his 40s? and lives with his wife Deborah and their two sons in Port Macquarie. He bought Sophie's Kitchen in July 2001, and sold it in August 2002. 7 Sophie's kitchen is a seafood business, selling fish and chips and other similar food. It is located in the business district of Port Macquarie. Whilst a business such as this is somewhat seasonal, it usually opened around 8 am and closed around 8 pm each day. 8 Mr Sciberras worked full time in the business. Ms Taylor (who had been employed in the business prior to its purchase by Mr Sciberras) usually worked six to seven hours a day. She would work from around mid-morning until lunchtime, go home for a break, and then come back around mid afternoon and work through into the evening. 9 Mrs Deborah Sciberras worked in the shop on occasions, but also had a job working in a supermarket. Mr Sciberras employed other casual employees around the time of the events including- Ms Nicole Burge as a casual shop assistant around September-October 2001, just prior to Ms Taylor going on holidays. Ms June Douglas, who commenced at around the same time. Ms Margaret Prendergast who worked as a cleaner at the business. 10 Ms Taylor took her children on holidays to visit her parents in Mt Morgan in late September or early October of 2001. She was away for a week to ten days. She alleges that the events which are the subject of this complaint began to occur on her return from that trip. She alleges that they continued until she left her employment. 11 In December 2001 Ms Taylor states that, as a result of the alleged harassment, she decided that she could not continue in her job, and that she told Mr Sciberras that she would be leaving in early 2002. He provided her with a written reference which was very complimentary of her work dated 10 December 2001. This reference was in evidence. It was agreed between Ms Taylor and Mr Sciberras that she would stay on until the end of the school holidays, as this was a very busy time for the business. Ms Taylor gave evidence that she had stated that she would remain longer if the alleged harassment ceased. 12 On 15 January 2002 Ms Taylor gave evidence that, as Mr Sciberras's alleged behaviour had not ceased, she gave two weeks notice. She stated that Mr Sciberras ended her employment on that day. Versions of what took place on that day differ. However, Ms Taylor received a further reference - also in evidence - dated 20 January 2002. Again it is very complimentary of her work performance. 13 Ms Taylor gave evidence that - as a result of the alleged harassment - she decided to move to Mt Morgan, which she did on 16 February 2002. 14 She alleged that, following many harassing phone calls from Mr Sciberras after she had moved, she approached the Police in Rockhampton to take out an apprehended violence order. She stated that they advised her that she could not do this in Mt Morgan, and that she would have to return to Port Macquarie and seek the order through the police in NSW. She moved back to Port Macquarie in May 2002. 15 Ms Taylor met Mr Michael Gill in January 2002 before she moved to Mt Morgan. Mr Gill is a trained nurse who lives in Port Macquarie. They commenced a relationship in April or May of 2002 which was still continuing at the time of the hearing. 16 Feelings between the applicant and Mr Gill, and the respondent and his family, have run quite high over this matter. Several other legal actions in different jurisdictions - including debt recovery and apprehended violence orders - have occurred or are still on foot. These matters are not, of course, directly relevant to the Tribunal's considerations, but references will be made to them as they highlight the strong enmity which has developed between the parties. APPLICANTS EVIDENCE Ms Taylor's Evidence 17 Ms Taylor gave evidence in two sworn statements and in person. She stated that she had enjoyed her working relationship with Mr Sciberras prior to her holiday in Mt Morgan in September-October 2001. 18 Upon her return from this holiday she stated that Mr Sciberras' harassing behaviour began. She detailed the following incidents or types of incidents- 19 Following her return to work, Mr Sciberras said to her words to the effect of: "I'm glad you're back I missed you". 20 Not long after she returned to work Mr Sciberras followed her into the cool room, where the stock was kept. He tried to cuddle her, and said to her "I've fallen in love with you". Ms Taylor was shocked, and pushed past him out of the cool room. 21 After that time, Mr Sciberras began following her into the cool room often, behaving in a similar fashion. 22 On many occasions she would have to bend over to pick up a bag of chips out of a box on the floor, and Mr Sciberras would come up behind her, put his hands on her hips, and pull her back into him. 23 On many occasions Mr Sciberras would stand in the cool room doorway so she could not walk out. He would try to cuddle and kiss her if she tried to walk past him. 24 On other occasions Mr Sciberras would try to touch her on the buttocks or on the breasts. 25 At all times Ms Taylor stated that she would say to him "No it's not right" or "No it's wrong". She would also push him away. 26 Mr Sciberras said to her such things as: - "I've fallen hopelessly in love with you" - "I can't help myself" - "I could make you very happy" - "You'll never want for anything" or - "I've always wanted a daughter" (She understood him to be referring to her daughter when he said that). 27 On one occasion Mr Sciberras said to her "I can book a motel, no-one has to know". 28 He said to her often "Just once Lise". 29 Ms Taylor stated that there was no regular pattern to these incidents, but that, by mid-November, they occurred a number of times each day. She said that they mainly occurred when only she and Mr Sciberras were in the shop. They did not occur when Mr Sciberras' wife was in the shop during evening shifts. 30 Ms Taylor stated strongly in her oral evidence that she did not initiate Mr Sciberras advances. She stated that initially she tried to fend off Mr Sciberras' advances politely, because she had liked her job, and it was an important source of finance for her. 31 In November 2001, Mr Sciberras began coming to her house late at night. She alleges that he came once or twice per week for about three weeks. She would say to him "What are you doing here?" and he would say "I just want to talk to you". 32 Ms Taylor stated that her friend Michelle Donnelly often used to call in on her way home from work at the RSL. On more than one occasion when Ms Donnelly was at Ms Taylor's house Mr Sciberras rang Ms Taylor's home phone and said to her "How long is she going to be there, can I come around when she goes". Ms Taylor stated that she would always answer "No". 33 In around November 2001 when Ms Taylor continued to reject Mr Sciberras' advances, he began to be aggressive towards her. After she said no to his advances, or pushed him away, he would slam cooking utensils on the bench, slam doors and snap at her if she spoke to him. He said to her "See what you've fucking done to me". 34 In early December 2001 Ms Taylor said to Mr Sciberras "If this behaviour doesn't stop I'm leaving". Mr Sciberras said to her "OK I'll stop it". 35 Ms Taylor asserted that Mr Sciberras did not stop the harassing behaviour. So, on 10 December 2001, she said to him "I'm leaving, it hasn't stopped". This was when Mr Sciberras wrote the first reference dated 10 December 2001. He asked her to stay for the school holidays, and she agreed to do so. She further indicated that if his harassment stopped she would consider staying after that time. 36 Ms Taylor said that Mr Sciberras caused her a great deal of apprehension and anxiety. She was scared to go to work because of Mr Sciberras' continued inappropriate and harassing behaviour towards her. 37 Ms Taylor stated that her main motivation for continuing with her employment with Mr Sciberras was financial. She had made a savings plan and did not want to lose the money she earned from working at Sophie's Kitchen. 38 Ms Taylor stated that Mr Sciberras' behaviour did not change during the school holiday period. She was having trouble sleeping and she wasn't eating properly because she felt sick to her stomach all the time. She noticed that she got angry with her children for petty things. She felt cheap, and it played on her mind. She had started getting pains in her chest. 39 On 15 January 2002 Ms Taylor said to Mr Sciberras "No, no more, I'm resigning. I can't do till the end of the school holidays I've had enough. I'll do two more weeks and that's it". She did not give Mr Sciberras any other reason for resigning other than his behaviour towards her. She stated that her father's illness was not a reason for resigning- he did have cancer, but has had it for some years and was not critically ill at the time of her resignation. 40 Ms Taylor stated that Mr Sciberras threw a tray of fish on the ground and threw a glass at her. He said "Get out now". 41 Ms Taylor stated that she walked outside, got in her car and left. 42 Ms Taylor asserted that at no stage after that day did she ask Mr Sciberras, or any member of his family, to allow her to resume her employment at Sophie's Kitchen. She did ask for a further reference from Mr Sciberras, and he gave her one dated 20 January 2002. This reference was again in complementary terms, and was also in evidence. 43 Ms Taylor said that Mr Sciberras did not touch her in front of Miss Burge. She did not tell Ms Burge that "Sam and I have got a thing going." She did not touch, kiss or cuddle Mr Sciberras in front of Miss Burge. 44 Ms Taylor agreed that she had talked to Ms Burge about her father having cancer. She told Ms Burge in January that she was counting down the days to getting out of the shop. She told her "Sam wants to have a thing with me." 45 Ms Taylor said that she had never worked with Margaret Prendergast. Ms Prendergast was the cleaner, and she came in when the shop was closed and staff were going home. Ms Prendergast started doing the cleaning towards November December. Ms Taylor saw her about four times a week. 46 Ms Taylor stated that the job was important to her and her children. She said that Mr Sciberras had no right to put her in that position. 47 Prior to moving to Mt Morgan, during her time there, and following her return, Ms Taylor stated that she had received numerous phone calls from Mr Sciberras. This evidence was supported by transcripts of calls prepared by the Rockhampton Police - which were in evidence - as well as a recording of messages left on her mobile phone. This recording was played to the Tribunal during the hearing. 48 When asked about the messages Ms Taylor said "When I listened I feel the same as I feel now- it gives me the creeps. I thought I was just a piece of meat, that somebody can walk over, and have control of." 49 On some days there were more than dozens of calls or messages left. The messages fell into two broad categories. The first category were friendly or loving messages, encouraging Ms Taylor to get in touch with Mr Sciberras so that they could talk. The second category were angry and threatening messages, suggesting or implying that Mr Sciberras would take various actions - some quite threatening - against Ms Taylor if she did not contact him. 50 Some of the messages refer to being able to see Ms Taylor while Mr Sciberras was on the phone. Others contain threats of violence either towards Ms Taylor or Mr Gill. 51 Ms Taylor gave evidence that anonymous phone calls had continued right up to the time of the hearing, and that several days before the commencement of the hearing she had arranged to have her phone line monitored. 52 There were no references in either the transcripts or the recorded calls to Mr Sciberras wanting Ms Taylor to repay money that she owed to him. 53 Ms Taylor stated that, during the time she worked for Mr Sciberras, he said to her, and she heard him say to other people, "I used to be an undercover cop, so no-one can cross me. I can arrange things". These comments very much concerned Ms Taylor, particularly in the context of Mr Sciberras' alleged activities after her employment had ended at Sophie's Kitchen. 54 Ms Taylor stated that Mr Sciberras had never made threats towards her children, but that on occasions he had sat outside the school which they attended and followed them home. 55 Ms Taylor denied that Mr Sciberras had ever loaned her money. She agreed that he had taken action against her in the Magistrates Court to pursue an alleged debt, but noted that this matter had been dismissed. Court documents were tendered to support this evidence. 56 She also denied that she had given Mr Sciberras her mother's phone number in Mt Morgan so that he could contact her. 57 Ms Taylor stated that her earnings from Sophie's Kitchen had averaged $400 a week in winter, and $550 a week in summer and during school holidays. She said that she was never given pay slips, but rather was paid in cash. She stated that when she resigned in January 2002 her wages were around $400 a week, because she was no longer working seven days a week. 58 Ms Taylor noted that the group certificate provided to her by Mr Sciberras after the Anti-Discrimination Board conciliation conference covering the period from July to December 2001 indicated that she had earned $1800 in that period. However, she calculated that working seven hours a day seven days a week (as confirmed in Mr Sciberras' statement) she would have earned $7150 in that period, even taking into account the week that she had off to visit her parents in September-October. This calculation is made based on working for 130 days at $55 per day. 59 Ms Taylor advised that, after resigning from work, her Centrelink earnings had amounted to approximately $400 a week. She said that whilst working at Sophie's Kitchen she had been able to save between $100 and $200 a week and pay this off debts. She was unable to do this on her Centrelink payments. 60 Ms Taylor said that she had never sought counselling as a result of the sexual harassment she had suffered. She said that she felt she could deal with it on her own. She advised the Tribunal that, ten years before, when her marriage had broken up, she had not sought counselling. 61 Ms Taylor gave evidence that she had not had employment since resigning from her job at Sophie's Kitchen. She said that she had not tried to obtain employment, as she felt that Mr Sciberras would "bad-mouth" her to potential employers, and work was hard to get in Port Macquarie. 62 Ms Taylor stated that by the time she resigned from her employment at Sophie's Kitchen she was a wreck. She felt cheap and like a piece of meat. She felt that Mr Sciberras had taken advantage of her because she was a single mother and he thought she would be grateful for "anything I could get", so to speak. 63 She said that she had trouble sleeping, and could not eat. She had trouble concentrating, and said she still does. She was exhausted. She had chest pains and heart palpitations. 64 Ms Taylor said that her "confidence was knocked" and she felt powerless to change the position that she felt Mr Sciberras had placed her in. 65 Ms Taylor said that she got angry at her children for no reason. She snapped at them all the time. 66 When she moved to Mt Morgan in early March 2002 Ms Taylor went to see a Dr Wynn Hlaing, General Practitioner. She said that he prescribed "Noten", a drug for treating hypertension and angina. Her symptoms included rapid heart rate, increased blood pressure and stress. She took 1/2 a tablet per day, and there were thirty tablets in each prescription. She used the original prescription, plus some of the repeats, over the following months. Mr Gill's Evidence 67 Michael Gill is a registered nurse working for a company carrying out air ambulance transport. He received his general nursing qualification in 1981, and has specific qualifications in psychiatric and coronary care. He worked at various Sydney and Goulburn hospitals prior to his current employment. 68 He gave evidence via a letter (which was an exhibit in the proceedings) and in person. 69 He first met Ms Taylor in January 2002 at a garage sale she was conducting prior to moving to Mt Morgan. He has since got to know her better, and he travelled to Mt Morgan to see her in March or April of 2002. Following this they commenced a relationship living together which was ongoing at the time of the hearing. 70 Mr Gill gave evidence of his personal knowledge of harassing behaviour by Mr Sciberras towards Ms Taylor following her resignation. He spoke of many harassing phone calls to Ms Taylor (sometimes dozens in one day) and other "stalking and harassing behaviour". 71 Mr Gill gave evidence of an attempt by Mr Sciberras to deliver flowers to Ms Taylor on Valentines Day - 14 February 2002. 72 Mr Gill also gave evidence of conversations which he had had with Ms Taylor regarding her allegations of sexual harassment whilst working at Sophie's Kitchen. He described one incident where Ms Taylor had told of being kept in a coolroom for five minutes by Mr Sciberras and sexually harassed. 73 Mr Gill confirmed that he had recorded the disk of mobile phone messages on his computer. He described Ms Taylor's reactions when she heard the messages again. He said that she was often tearful, and that she would go away and "close up" or not speak or answer. She would often lock herself away for some time. 74 Mr Gill said that he first saw Ms Taylor's extreme anxiety state in Mt Morgan. He was in Mt Morgan when Ms Taylor found it necessary to visit the local hospital due to her extreme anxiety, palpitations, headache and hypertension. He said that it has persisted to today, depending on whether events are occurring related to Ms Taylor's complaint. He said that it did not continue to the extreme extent first observed, but she still does have episodes of palpitations. 75 Mr Gill's observation of her being quiet and withdrawn was when he first met her. He said that she still gets that way sometimes. Mr Gill said "This abuse by Mr Sciberras had at the time, and continues to have, a profound affect on Lisa's sense of happiness, security, general and emotional health." Ms Donnelly's Evidence 76 Ms Donnelly gave evidence in a letter (which was an exhibit at the hearing) and in person. 77 Ms Donnelly stated that she was a very close friend of Ms Taylor, and had been for some years. She said that she had become aware of Mr Sciberras' actions towards Ms Taylor through a number of conversations which she had with Ms Taylor at the time the events were alleged to be occurring. She confirmed Ms Taylor's contemporaneous accounts of the events. 78 She stated that she often visited Ms Taylor, at her home, after completing her work at the RSL. This was where many of the conversations had occurred. She said that, upon arrival at Ms Taylor's home during November and December of 2001, she had often observed Mr Sciberras' car parked outside. 79 She confirmed Ms Taylor's evidence that Mr Sciberras used to phone at these times and ask if he could come around to visit Ms Taylor after Ms Donnelly had left. Ms Donnelly recalled at least three occasions when she had been with Ms Taylor, at Ms Taylor's home, when this had occurred. 80 She further recalled an occasion when Mr Sciberras had been sitting outside Ms Taylor's home in his car. Ms Donnelly had been about to leave when she and Ms Taylor observed this. Ms Donnelly stayed longer, and finally Mr Sciberras drove his car further away at which time Ms Donnelly left. Ms Donnelly said that Ms Taylor had asked her to stay because Ms Taylor was frightened of Mr Sciberras, and did not want to be with him at her home. 81 Ms Donnelly was closely cross-examined on this incident, but her evidence was clear that she recognised Mr Sciberras' car and his face. 82 Ms Donnelly said that she had known Ms Taylor since 1997. She said that she knew her as a happy outgoing person. She stated that since the alleged harassment Ms Taylor has become much more silent, is much more within herself and diminished as a person. RESPONDENTS EVIDENCE Mr Sciberras' Evidence 83 Mr Sciberras gave evidence in person, and in a statement which was an exhibit at the hearing. The Tribunal also considered correspondence from Mr Sciberras' solicitor which was included in the report of the President of the Anti-Discrimination Board. This report was also an exhibit before the Tribunal. 84 A letter from Mr Sciberras' solicitors to the ADB dated 24 October 2002 stated "We are instructed that Sophie's Kitchen was a harmonious workplace and all employees worked together well in the period relevant to the Applicant's alleged complaint. Allegations of sexual advances and verbal abuse are refuted." 85 However, in his later correspondence, and in his statement to the Tribunal, Mr Sciberras' evidence changed. He asserted that there had been sexual advances from Ms Taylor and himself, and that they had been consensual on both sides. He said- The behaviour between Ms Taylor and I did change after October when she returned from Rockhampton. Soon after she did return, she indicated to me that she wanted to speak to me. On this particular day the shop closed between 2.00 pm and 4.00 pm. She said to me words to the effect "whilst I was in Rockhampton my mother noticed that I couldn't stop talking about you". My reply was "what does that mean, what are you trying to tell me". She replied words to the effect "I think I am in love with you". 7.From that time onwards the flirting etc would occur. I would clean the coolroom every morning at approximately 9.00 am when I opened. If Ms Taylor was present she would follow me into the cool room and say words to the effect "we could have a lot of fun in here". I recall other demonstrative behaviour on Ms Taylor's part as follows: (a) Ms Taylor would often make references to how she had not had sex for 9 years. On one occasion she said words to the effect "the next guy will need to blow the cobwebs out". (b) Whilst cooking Ms Taylor would stand behind me so that when I turned to get more fish my elbow would strike her on the breast. She would say to me how good that felt and grab my backside. She would then say words to the effect "It has been 9 years don't do that too often". (c) I had heard her say, "If I do it I will just be like a virgin again". (d) She said words to the effect "I wore my 'just in case' jeans" (they had a split in the crotch). (e) I have heard her say words to the effect that she prefers to have sex "doggie style". (f) Sometimes if she was serving and I was cooking we would be back to back. She would rub her backside against mine sometimes I would do it back. Lisa would then say words to the effect "That woke you up". 8. It is my recollection that Ms Taylor had given up smoking. However whilst assisting me in the mornings before the shop opened, she would have a cigarette with me outside the front of the shop or behind the shop. It was during that time that I got to know her more. She often commented that I was a lot more gentle than her last partner and that he was bad to her. She also commented once that I was much lighter and said words to the effect that "I wouldn't crush her". It was during these conversations that we would talk about family and on one occasion I recollect that Ms. Taylor commenting that not only was I gentle and understanding but she couldn't understand why I was staying with Debbie. She continued with words to the effect "she does not look after you, she does not deserve you". It was during one of those conversations that I said to her that I would have liked to have had a daughter. 9. During the period of time when flirting did take place, it never happened without either of our consent. At no time did Ms Taylor say to me that it wasn't wanted or wrong. 10. On the first occasion Lisa followed me to the cool room one night and put her arms around me and kissed me. The second time is when we were busy one night and I was stressing out. I went out the back and Ms Taylor came out and said words to the effect "are you right babe" and gave me a cuddle." 86 Mr Sciberras made the following further points in his statement- I would open the shop every morning at 9.00 am and prepare the shop for opening at 11.00 am. Whilst it wasn't necessary for her to do so Ms Taylor would often come in at 9.30 am and assist me with these duties such as scrubbing floors, preparing the fish and taking fish etc. out of the cool room. All preparation began before opening so that from 11.00 am to 8.00 pm, we could concentrate on cooking and serving customers. 4. Another employee of mine at the time was Nicole Burge who would only work casually but was usually working when Ms Taylor was working. Nicole did not start before 11.00 am. 12. In or about December 2001 Ms Taylor informed me that her father was very sick and dying of cancer and that she would need to go to be with him in Rockhampton. Whilst I realised that I might have to train someone else to take her place, I was supportive from the start and encouraged her to leave as soon as possible. His illness sounded urgent. Ms Taylor's father was being operated in March so I was told. At first Ms Taylor was going to stay until the end of February. She came in one day and said she was leaving at the end of the holidays because her father was getting worse. When she did not contact me I began to phone her and realised she was not going to pay me what she owed me. I rang Ms Taylor a number of times and a number of things concerned me amongst them the money she owed me as well as the fact that the takings went up after she left. I also rang her because she said she would stay in contact with me and never rang me back. I deny causing Ms Taylor any apprehension or anxiety. At no time did she show fear toward me. I deny that I sexually harassed her or for that matter physically harassed her or threatened her. I have never threatened Ms Taylor's children. 87 In his oral evidence, and in his statement and correspondence, Mr Sciberras gave much evidence about loaning money to Ms Taylor. This allegation was the subject of proceedings in the Local Court, and Mr Sciberras' action to recover the alleged debt was dismissed. The evidence is not set out in detail as the Tribunal views these allegations as not relevant to Ms Taylor's sexual harassment complaint. 88 Mr Sciberras asserted in his statement, and in evidence, that at least part of the purpose for his numerous phone calls to the applicant related to recovery of this debt. However, the Tribunal noted that there is no reference in either the transcripts of phone messages, or the CD recording of phone messages, to the debt. 89 Mr Sciberras gave oral evidence that he was invited to Ms Taylors home on a number of occasions in the evening after the shop had closed. He said that he had gone on three occasions, but that he could not remember the dates. He said that they just used to sit next to each other and talk. He denied parking outside Ms Taylor's home and watching the house. Mrs Sciberras' Evidence 90 Mrs Sciberras provided a statement which was an exhibit before the Tribunal, and gave oral evidence. 91 She stated that she sometimes assisted her husband at Sophie's Kitchen, although this was not that often as she had a job of her own. She said that she had occasionally worked with the applicant in the shop. 92 She stated that she was aware that Ms Taylor had resigned on 15 January because her husband had told her. She stated that the applicant had approached her the next day at her place of work and asked if she could get her job back at Sophie's Kitchen. Mrs Sciberras could not remember why the applicant had wanted it back. Mrs Sciberras stated that she told Ms Taylor that the business belonged to Mr Sciberras, and Ms Taylor would need to speak to him. 93 Mrs Sciberras said that, from her observations, Ms Taylor was a reliable employee. She said that they had not been very friendly towards each other during her time at the shop. Ms Burge's Evidence 94 Ms Nicole Burge gave evidence in a statement which was an exhibit before the Tribunal. She also gave oral evidence. 95 Ms Burge said in her statement that she worked similar morning and afternoon shifts to Ms Taylor from Thursday to Sunday each week, and that she did so from around October 2001. However, in her oral evidence she said that she worked two days a week when she started, and more after Ms Taylor left. 96 Ms Burge stated that Ms Taylor's commencement time was 10 am, which would explain Mr Sciberras' comment that Ms Taylor always came in before Ms Burge. 97 Ms Burge stated that Mr Sciberras and Ms Taylor had worked well together, and that she had not observed any verbal or physical confrontations. She said that she had not observed Ms Taylor being sexually harassed by Mr Sciberras. However, she went on to say that she did observe playful banter and flirting between them, including kissing cuddling and punching. 98 Ms Burge stated that on one occasion around October 2002 Ms Taylor had said to her that she (Ms Taylor) and Mr Sciberras "had a thing going". 99 Ms Burge said "I noticed on some occasions that Lisa would follow Sam into the cool room and they would remain in there for at least five minutes. I would be looking after the shop." In cross-examination Ms Burge agreed that she could not say who initiated these occasions. 100 Ms Burge gave oral evidence of an incident not described in her statement. She said that kissing had occurred in the door outside the toilet, on the way to the coolroom. She said Mr Sciberras and Ms Taylor had both of their arms around each other, that they were facing each other, and were kissing on mouth and cheek. This occurred in November or December. Again in cross-examination she agreed that she could not say who initiated this incident. 101 Ms Burge further said "On a number of occasions I overheard Lisa say to Sam words to the effect "Are you coming over tonight". 102 Ms Burge stated "At no time did Sam throw things or swear at her. If Sam ever got angry he would not get aggressive, he would say nothing and would appear to sulk." 103 Ms Burge said that Ms Taylor had told her that she was leaving at the end of January 2002 as she needed to go to Queensland to see her stepfather who had cancer. Ms Burge stated that she came in one day in the middle of January 2003 to be told by Mr Sciberras that Ms Taylor had left the previous day. He asked Ms Burge if she could cover Ms Taylor's shifts. 104 Ms Burge agreed that she was good friends with Mrs Sciberras. She said that Mrs Sciberras had found out about the interaction between Mr Sciberras and Ms Taylor after Mr Sciberras had sold the business. Mrs Sciberras was very disappointed in Ms Burge for not letting her know what was going on at the time, and spoke strongly to Ms Burge about that. 105 Also in cross-examination Ms Burge said "I think it was important that she was single and he was married. I believe marriages are for life. It's wrong for people like Lisa to break up a marriage. No matter who starts the relationship it is wrong for a single person to become involved with a married person." Ms Prendergast's Evidence 106 Margaret Prendergast gave evidence in a statement which was an exhibit at the hearing. She also gave oral evidence. 107 Ms Prendergast worked as a cleaner at Sophie's Kitchen from November 2001 until Easter 2002. 108 She commenced her work late at night when the shop was closing, and used to see staff leaving as she commenced her duties. 109 Ms Prendergast saw Ms Taylor and Mr Sciberras together many times, and she did not observe any conflict or harassment between them. Mr Ward's Evidence 110 Gregory Ward gave evidence in a statement which was an exhibit at the hearing. He also gave oral evidence. 111 Mr Ward gave evidence that he had known Mr Sciberras for some time as he was related to Mrs Sciberras. He stated that, during the time of the events in question, he visited Sophie's Kitchen about once a week. 112 He stated that he felt that Ms Taylor had an unpleasant disposition, and that she did not seem to be the right person to be serving members of the public. 113 However, Mr Ward observed that Ms Taylor seemed to get on well with Mr Sciberras and that they had a cohesive working relationship. 114 Mr Ward recalled discussions which he had had with Mr Sciberras regarding Ms Taylor. In November 2001 he recalled Mr Sciberras saying that he was "taken" with Ms Taylor, and that he found her attractive. Mr Ward expressed his surprise on this occasion, and advised Mr Sciberras to be careful. 115 In January 2002 Mr Ward stated that Mr Sciberras had told him that Ms Taylor was going to Queensland, and that he was thinking of selling the shop and going with her. Mr Ward stated that he told Mr Sciberras that he was "a bloody idiot" and that he should not leave his family and his business. Ms Douglas' Evidence 116 June Douglas gave evidence in a statement which was an exhibit at the hearing. She also gave oral evidence. 117 Ms Douglas stated that when she started working at Sophie's Kitchen in around September 2001 she had known Mr Sciberras for about four years. She stated that she worked from around 11 am to 2 pm, and from 5 pm to 8 pm on days when the shop was busy, particularly in summer. She served behind the counter. 118 Ms Douglas gave evidence that Ms Taylor was always pleasant and got on well with customers. She said that Ms Taylor and Mr Sciberras had a good working relationship. She did not observe any aggression or harassment between them. 119 She stated that she did not get on well with Ms Taylor personally. She did not like the fact that Ms Taylor had a key and seemed to run the business when Mr Sciberras was not present. However, in cross-examination, she agreed that the longest-serving employee in a shop often had this role. 120 Ms Douglas observed what she described as a "mutual attraction" between Ms Taylor and Mr Sciberras. She stated that she had observed this prior to Ms Taylor going to Queensland in September of 2001. She said that they would occasionally make jokes with sexual overtones between each other, although she could not recall any such jokes that Ms Taylor had made. She said that employees in the shop would sing along to the radio, and Mr Sciberras encouraged a fun atmosphere. 121 Ms Douglas stated that Mr Sciberras had discussed with her the possibility of selling the business, and going to Queensland with Ms Taylor. She stated that she had advised him that doing this would be the wrong thing, and that he should not leave Debbie and the kids. 122 Ms Douglas gave evidence that upon Ms Taylor's return from Queensland the connection between her and Mr Sciberras seemed to become closer. She observed that when Mr Sciberras was not in the shop Ms Taylor would continually watch the door waiting for him to come back. She also observed happy banter between them, and that they stood close to each other whilst cooking. 123 However, Ms Douglas stated that this behaviour changed when Mrs Sciberras was in the shop. She also observed that Ms Taylor seemed to be often watching Mrs Sciberras and appraising her. 124 Ms Douglas stated that she had never observed any aggressive or harassing behaviour by Mr Sciberras towards Ms Taylor or other employees. FINDINGS OF FACT 125 The Tribunal has set out issues which are not in dispute in the background to this decision. It therefore adopts all of that material. 126 The core issues in dispute in this matter are whether or not the sexual harassment of Ms Taylor by Mr Sciberras occurred in the manner set out by Ms Taylor in her evidence. The Tribunal needs to determine whether they did occur, and if so whether they occurred with Ms Taylor's consent or against her will. In general the Tribunal is satisfied that they did occur as described by Ms Taylor. 127 The Tribunal has reached this view for a number of reasons. 128 Firstly, it found Ms Taylor to be a very considered and credible witness. She gave her evidence - of events which had clearly had a profound and distressing impact upon her - in a calm and considered manner. Rigorous and lengthy cross-examination by Mr McCrudden did not cause her to change her story in any material degree. Whilst she was not able to give exact dates of events, or exact numbers of times which events occurred, she described a course of conduct which was consistent for the three or four months between the time she returned from her holiday in Queensland until the time when she left her employment in Sophie's Kitchen. 129 Secondly, the Tribunal was impressed by the witnesses Ms Taylor called in support of her evidence. In cases of sexual harassment corroboration of the events is rare. It is usual for the sorts of occurrences which cause people to make such complaints to occur when only the two parties are present, or in a way which will not be obvious to others who may be observing. This is certainly true of the circumstances in this case, and corroborative evidence on either side is relatively peripheral. 130 However, Ms Donnelly confirmed Ms Taylor's contemporaneous description of events, and Mr Gill gave evidence of Ms Taylor's advice of events in the first few months after they had occurred. 131 Whilst it is true that Ms Donnelly has been a friend of the applicant for some years, the Tribunal found her evidence - both of what Ms Taylor had told her and of events which occurred at Ms Taylor's home on several evenings - quite persuasive. Ms Donnelly's description of Mr Sciberras in his car outside Ms Taylor's home was very clear, and not shaken under strenuous cross-examination. 132 The Tribunal also viewed Mr Gill's evidence as even-handed. Although Mr Gill commenced a relationship with Ms Taylor subsequent to the events in question - which was still ongoing at the time of the hearing - The Tribunal was satisfied that his corroboration of Ms Taylor's evidence could be given weight. Whilst his evidence was not viewed as a medical assessment in the strict sense, his lengthy nursing background certainly qualified him to be able to assess symptoms and suggest probable cause. His evidence of the impact of events, whilst not viewed by the Tribunal as direct corroboration of them, assisted to give weight to the broader thrust of the applicant's evidence. 133 Both Ms Donnelly and Mr Gill gave evidence of the changes which occurred to Ms Taylor's personality. Whilst this is not on its own persuasive, it supports the finding of the Tribunal that the interactions between the applicant and the respondent were not consensual. 134 Thirdly, the evidence of the respondent and his witnesses is littered with confirmation of the sorts of occurrences which Ms Taylor described. Whilst this evidence is given in the context that such occurrences were consensual, it also confirms that they happened. 135 Fourthly, on the other hand, the evidence of the respondent is far less credible. As set out in this decision it changed radically from the first correspondence conducted on behalf of the respondent with the ADB to the statements filed in the Tribunal and the oral evidence given. This initial denial of any "sexual advances and verbal abuse" seriously impacted on the credit of the respondent. In the Tribunal's view, it brings his later position - that there were such sexual advances but that they were from both sides and consensual - into serious doubt. 136 The Tribunal is satisfied that, in the respondents mind between the months of October 2001 and January 2002, this may have been the case. But it was a view formed more from hopes and dreams than from reality. The Tribunal accepts that the respondent found the applicant attractive, and that he may have persuaded himself that the feelings were reciprocated by Ms Taylor. But in this respect he deluded himself. His evidence was simply not persuasive on this point when viewed against Ms Taylor' evidence. As an employer, continuing to express - through words and actions - attraction to an employee when those expressions are rejected is a dangerous course to take. But this is the course which Mr Sciberras followed. 137 Fifthly, the witnesses called in support of the respondent did not assist in this regard. 138 Mrs Sciberras' evidence is peripheral. The one jarring note is her evidence that Ms Taylor came to her requesting her job back at Sophie's Kitchen on 16 January 2002. Ms Taylor denies that this occurred. It is the Tribunal's view that Ms Taylor expressed a general wish that her employment at Sophie's Kitchen could have continued which Mrs Sciberras has interpreted as a more specific request. 139 Ms Burge's evidence confirmed that events occurred between the applicant and the respondent. Her interpretation of those events were that they were consensual. However, this may be more interpretation than in fact, and Ms Burge did agree on several occasions in cross-examination that she could not say who had initiated the incidents. 140 Ms Burge's reporting of a conversation where Ms Taylor said that she and Mr Sciberras "had a thing going" could have related to Ms Taylor expressing what Mr Sciberras wished for rather than how she felt. Also, questions from Ms Taylor to Mr Sciberras about whether he was coming to her place that night could have as easily been asked out of concern about an event not wished-for as out of hope for one looked forward to. 141 Further, Ms Burge's evidence was coloured by her friendship with Mrs Sciberras, combined with her strongly expressed views about the sanctity of marriage, and the fact that no matter who starts the relationship it is wrong for a single person to become involved with a married person. 142 Ms Prendergast's evidence was based on observations over relatively short periods of time when the rest of the staff were leaving, and for this reason was quite inconclusive. 143 Mr Ward's evidence confirmed Mr Sciberras' feelings towards the applicant, and to some degree the fact that interactions occurred between the applicant and the respondent. However, Mr Ward was in no position to assess whether such occurrences were consensual or not. 144 Ms Douglas' evidence was described in submissions by Mr Griffin on behalf of the applicant as surreal, and the Tribunal shared that view. Her evidence was very impressionistic, and the conclusions she drew from her observation of events seemed very coloured by her friendship with Mr Sciberras and her dislike of the applicant. Her evidence that she had advised Mr Sciberras not to leave "Debbie and the kids" confirms the position she took on the issue. The Tribunal was not convinced by the conclusions which she drew regarding Ms Taylor continually looking at Mrs Sciberras when Mrs Sciberras was in the shop, and the reason why Ms Taylor continually watched the door when Mr Sciberras was not present. Finally, Ms Douglas was the only person - including the applicant and respondent - to suggest a connection between them prior to Ms Taylor's trip to Queensland in September 2001. The Tribunal regarded Ms Douglas' conclusions as more imagined than reality. 145 Finally, The Tribunal took into account the ongoing course of conduct by the respondent both before the applicant left for Queensland and after she had gone there. The Tribunal had before it both the records of phone calls made by the respondent, and the disk of recorded voicemails. Both their number and content indicate the determination of the respondent to maintain a relationship between himself and the applicant, and the incredible persistence of the respondent if he did not get what he wanted. If the interactions between the parties from October 2001 to January 2002 had been consensual it would have been incredible that the applicant did not respond in some way to these attempted contacts, which were a mix of positive persuasion and negative threat. That she only did so by returning to seek an AVO confirms in the Tribunals mind that the advances by the respondent were unacceptable to the applicant. FINDINGS OF LAW 146 Sexual harassment is defined in s 22A of the NSW Anti-Discrimination Act as an unwelcome sexual advance, an unwelcome request for sexual favours, or conduct which is unwelcome and of a sexual nature. Such conduct is unlawful if a reasonable person, having regard to the circumstances of the case, would be offended, humiliated or intimidated. This test is an objective one. 147 The conduct described by Ms Taylor in her evidence in this matter clearly meets that definition. Kissing, touching, propositions of sexual advances, have all been found in the past to meet this definition. Ms Taylor's evidence indicates that she found the conduct offensive, but that she tolerated it to a degree because her job was important to her and she did not want to loose it. However, she also rejected the conduct, both at the time that it occurred and in December 2001 and January 2002 by her words and actions in threatening resignation and then resigning. 148 Ambivalence to the harassers conduct does not defeat a claim of sexual harassment; and nor does staying in employment whilst harassment continues. Aldridge v Booth (1988) EOC 92-222 is clear authority for this proposition. Ms Taylor remained in her job for some months, although she found the harassment offensive and humiliating, because she enjoyed the job and wanted to retain the income. She had a savings plan, and a family to support, and was determined to pursue both of these purposes. 149 It is important in these circumstances to consider the power relationship between the parties and the fear of possible reprisals. Ms Taylor gave evidence of Mr Sciberras' assertions in this regard, talking of his suggestions that he could "arrange things" if people did not do as he wanted or "crossed him". 150 It has often been said in sexual harassment cases that it is the persistence of the conduct which renders it unlawful. Persistence is certainly a hallmark of the respondents continuing course of conduct. Ms Taylor's evidence is that Mr Sciberras continued the unwelcome sexual advances, even though she had told him to stop, and even though he had promised her that he would stop behaving in this way. Further, Mr Sciberras continued an unending stream of telephone calls and voicemails from the time that Ms Taylor left his employment. Ms Taylor gave evidence, which the Tribunal accepts, that these phone calls continued until several days before the commencement of the hearing into this matter, more than eighteen months after the ending of her employment. 151 In the employment context, sexual harassment is unlawful during the course of employment, and in dismissal or termination of employment. If the employee resigns because she can no longer tolerate the conduct, then it is open to the Tribunal to view this as constructive dismissal. What the respondent did in these circumstances was to create a hostile work environment. His actions constituted relentless and continuing unwelcome sexual conduct that interfered with the applicants work performance and created a hostile work environment. The Tribunal is satisfied that the circumstances in this case do constitute a constructive dismissal situation, and its assessment of damages has taken this finding into account. DAMAGES 152 Having found that the respondent sexually harassed the applicant in breach of the Act the Tribunal turns its attention to the awards it intends to make. In circumstances such as those described in Ms Taylor's evidence the Tribunal is of the view that the most appropriate award is an award of damages. 153 The Tribunal can award specific damages for losses suffered by the applicant as a result of the sexual harassment of the respondent. It can also award general damages for pain and suffering. 154 Based on the Tribunal's finding that the applicant was constructively dismissed, the Tribunal is minded - in the area of specific damages - to award damages for loss of income. Although the group certificate provided to the applicant indicated that she had earned $1800 from her employment in the period July-December 2001, the Tribunal finds this evidence impossible to accept given the amount of days and hours which the applicant was working during this time. The Tribunal can only conclude that the respondent seriously understated Ms Taylor's income to the Australian Taxation Office in this document. The Tribunal is persuaded by Ms Taylor's evidence that she earned approximately $7150 during this period, based on working for 130 days at $55 a day. 155 It is difficult, when assessing loss of income, to determine at what point the income loss should end. The applicant did not attempt to find other employment, part of her reason being that she felt if she had provided details of her recent employment Mr Sciberras would have criticised her to potential new employers. This is an understandable view for her to have formed given the way in which he behaved towards her following the ending of her employment. 156 It seems to the Tribunal that six months loss of income is an appropriate period in these circumstances, and the Tribunal has therefore awarded $7150 damages for loss of income. 157 The assessment of general damages awards is also difficult, and every case has different circumstances to be taken into account. In this case, the Tribunal took into account the following factors- * The harassment in question occurred on a number of occasions each day over a period of some four months and, whilst arguably its nature was in the medium range of harassment the level of damages is increased by its persistent regularity; * The situation was made more serious when the power imbalance between the parties is taken into account. The respondent knew that the applicant was a single mother supporting her family, and that leaving her employment - in a town such as Port Macquarie where employment was very hard to obtain - would have been a drastic step for her to take. * The fact that the applicant did not seek professional counselling, and bring that as well as clear medical evidence to support her claim, whilst laudable, is a factor in reducing the damages award. Mr Gill's evidence in this area, whilst of assistance, cannot carry the same weight as that of a counsellor or doctor. * The damage incurred by the applicant has been greatly exacerbated by the ongoing conduct of the respondent since the end of the applicant's employment. The continuous phone calls and voicemails, friendly one time and threatening the next, over an eighteen month period, have just reinforced the psychological abuse inflicted on the applicant by the respondent, and given her little chance to try to recover from the sexual harassment and get her life back on the rails. The Tribunal was appalled and sickened by this continuing course of conduct. 158 In all of these circumstances the Tribunal is of the view that an award of $12000 in general damages is an appropriate one. 159 The Tribunal has therefore awarded an amount of $19150 in total damages. 8 COSTS 160 The Equal Opportunity Division of the Administrative Decisions Tribunal is generally a "no costs" jurisdiction. However, s 88 of the Administrative Decisions Tribunal Act 1997 provides that costs may be awarded against a party in "special circumstances". 161 Cases in this area have made it clear that "special circumstances" depend very much on the circumstances of the particular case, and have set very broad parameters as to how they should be determined. Whilst the section clearly suggests that the general rule should be that costs are not awarded, exceptional circumstances have been found to exist in a broad range of situations. 162 The Tribunal has formed the view that this case falls into that category because of the following factors- * The exacerbation of the sexual harassment and its impact by the persistent and continuing conduct of the respondent. He has carried on a merciless campaign to ensure that the applicant cannot "move on" from the events which have occurred. * The greater impact of the respondent's sexual harassment given the power imbalance between the parties. * The attempts by the respondent to pursue the applicant in other forums such as an unsuccessful attempt to recover an alleged debt owed to the respondent by the applicant. 163 The Tribunal awards the costs of the conduct of the four days of hearing in favour of the applicant. If these costs cannot be determined between the parties, an independent assessment of them is to be obtained. CONCLUSION AND ORDERS 164 As can be seen from the above decision, the Tribunal regards this case as one of sexual harassment of a serious nature. This is both because of the continued and persistent sexual harassment in the face of rejection by the applicant, and the continuing psychological abuse of the applicant by the respondent following the ending of her employment with him. The Tribunal trusts that the respondent learns from this decision that our community finds totally unacceptable the behaviour which he exhibited over a long period of time- behaviour by which he attempted to control and dominate the applicant in order to get what he wanted, irrespective of her clearly expressed feelings on the matter. 165 The Tribunal finds that the respondent has sexually harassed the applicant in breach of the NSW Anti-Discrimination Act, and awards the sum of $19150 in damages, to be paid by the respondent to the applicant within 30 days of the date of publication of this decision. 166 The Tribunal further awards costs in the matter in favour of the applicant.