CITATION: Zenkova v Al Fahdawi [2010] NSWADT 272 DIVISION: Equal Opportunity Division APPLICANT Inna Zenkova PARTIES: RESPONDENT Hassan Al Fahdawi FILE NUMBER: 091093 HEARING DATES: 20 and 21 October 2010 SUBMISSIONS CLOSED: 21 October 2010 DATE OF DECISION: 15 November 2010 BEFORE: Isenberg N - Judicial Member; Schneeweiss J - Non-Judicial Member ; Antonios Z - Non-Judicial Member CATCHWORDS: Sexual harassment LEGISLATION CITED : Anti-Discrimination Act 1977 Sex Discrimination Act 1984 (Cwth) Briginshaw v Briginshaw (1938) 60 CLR 336 Horman v Distribution Group Ltd [2002] FCA 219 CASES CITED: Aldridge v Booth [1988] FCA 170 Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217 Bishop v Takla & Ors [2004] FMCA 74 APPLICANT G Winn, solicitor REPRESENTATION: RESPONDENT B Niven of counsel, instructed by Mr H El Husseini 1.The applicant's complaint of sexual harassment is substantiated ORDERS: 2. The respondent is to pay the applicant damages in the sum of $20,000 3. The respondent is to pay the applicant's costs as agreed or if not agreed as assessed under the Legal Profession Act 2004. REASONS FOR DECISION Background 1 On 10 December 2008 Ms Inna Zenkova complained to the Anti-Discrimination Board (the Board) under the NSW Anti-Discrimination Act 1977 (the Act), alleging sexual harassment while employed by Top Hair Cut which was owned and operated by Mr Hassan Al Fahdawi. 2 Ms Zenkova was undertaking a 6 months refresher course at Petersham TAFE for overseas trained hairdressers from June 2008 when she met Mr Al Fahdawi. He offered her work at his hairdressing salon, Top Hair Cut. Ms Zenkova commenced work as a casual hairdresser on 30 October 2008. She worked 4 to 5 days up to about 18 November 2008. She alleged that on a number of those days Mr Al Fahdawi inappropriately touched her, attempted to kiss her, exposed himself to her, and offered to show her sex on the computer. She also alleged that when she was in the cafe at TAFE Mr Al Fahdawi approached her, pinched her waist and said 'Hey Sexy'. 3 Ms Zenkova claimed that as a consequence, she has suffered depression and anxiety for which she required medical assistance. She said her employment prospects are now somewhat limited because she can no longer work in salons where either the owners or the clientele are of Middle Eastern appearance. 4 Mr Al Fahdawi denied all of Ms Zenkova's allegations. He said that Ms Zenkova had been employed on a probationary and casual basis and he formed the view that her hairdressing skills were not to up to standard. He believed that Ms Zenkova made the allegations because he did not offer her a permanent position. 5 Ms Zenkova denied that there were issues about her performance and stated that Mr Al Fahdawi had already seen the standard of her work at TAFE. 6 Ms Zenkova also made a complaint of sexual assault to the police on 4 December 2008. Charges were laid by the police against Mr Al Fahdawi for sexual assault, but after 4 days of hearing in March, May and June 2010 the charges were dismissed. Legislation 7 Section 22B(1) the Act makes it unlawful for an employer to sexually harass an employee, or a person who is seeking employment with the employer. 8 Section 22A defines sexual harassment as follows: For the purposes of this Part, a person sexually harasses another person if: (a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the other person, or (b) the person engages in other unwelcome conduct of a sexual nature in relation to the other person, in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated. Standard of Proof 9 Unlike the criminal proceedings, we are to make our findings on the civil standard of proof, namely on the balance of probabilities, as explained in Briginshaw v Briginshaw (1938) 60 CLR 336 at pp 361-362. Issue for the Tribunal 10 Although the Board's summary of complaint characterised Ms Zenkova's complaint as allegations of both sexual harassment and discrimination on the ground of sex, only sexual harassment was pressed at the hearing. 11 Ms Zenkova contends that her allegations separately and in combination constitute sexual harassment as defined by the Act. 12 It falls to Ms Zenkova to establish: That the alleged conduct occurred That it constitutes a sexual advance, request for sexual favours, conduct of a sexual nature in relation to her That it was unwelcome Having regard to all the circumstances, that a reasonable person would have anticipated that Ms Zenkova would be offended, humiliated or intimidated by that conduct. Evidence 13 Ms Zenkova gave evidence broadly in accordance with her complaint. 14 Between July 2008 and November 2008, she attended Petersham TAFE to undertake a course for overseas qualified hairdressers so as to obtain recognition in Australia. She wanted to improve her English, especially in relation to technical hairdressing language. At this time Ms Zenkova also worked casual days at a hairdressing shop in Beecroft but was looking for further hairdressing work. 15 At TAFE she met Mr Al Fahdawi who was another student undertaking the same course. They were not friends and only knew each other by their first name. They would barely speak except to say "hello". 16 On 28 October 2008, Ms Zenkova told a teacher at TAFE that she was looking for work. The teacher asked Mr Al Fahdawi if he had any vacancies in his salon. He gave Ms Zenkova his business card and she agreed to contact him. At some stage they arranged an appointment for 30 October 2008. 17 She went to Mr Al Fahdawi's salon in Newtown at about 3:00 p.m. and they discussed terms of employment as well as the nature of the work. After some discussion lasting about two hours she agreed to return the next day and work from 9 a.m. to 6 p.m. 18 On 31 October 2008 she arrived at the salon at about 9 a.m. She and Mr Al Fahdawi were the only two hairdressers at the shop. Out the back was the staffroom which had a kitchenette, and other furniture, including a couch. 19 At about 2 p.m. she went to the staffroom for a break and sat on the couch. She said that Mr Al Fahdawi sat down beside her on the couch and put his arm on her shoulder. She asked him what he was doing. He then lent over and kissed her on the left cheek. She said that she was there to work and "not to have something [a relationship] with you", to which he replied, "Okay, okay", and "I understand you and it will never happen again." 20 Later the same day she returned to the staffroom while waiting for a customer. He again sat beside her on the couch and put his arm around her and then put his hand on her thigh. She said, "I have already told you I do not want anything". He then said, "Don't you like sex?" She did not respond. She said to him, "If you're looking for someone to have sex with in the salon it's not going to be me. If you are looking for a girlfriend, look somewhere else." She was fairly firm in what she said and believed that he understood what she had said and no more was said. 21 She wrote in her statement that she was next asked to work on 4 November 2008 and that she worked from 9:30 a.m. to 6 p.m. that day. She was cross-examined at length about the correctness of that date, given that 4 November was Melbourne Cup Day. In the criminal proceedings she had said it was a Thursday, namely 6 November 2008. She conceded that she was not sure about the date, but said she did have a clear recollection of what had occurred. 22 At 5:30 p.m., after the other hairdresser, Albert had left and when there were no customers, she sat on the couch and Mr Al Fahdawi sat down next to her and then he put his hand around the top of her back and she felt his hand touching her skin. With his other hand he lifted her top to and placed his hand on her stomach. She pushed him away immediately and stood up and said "Are you doing what I have told you not to do? I have told you that I am not interested." He grabbed her from behind and put both arms around her, pulling her towards him. He pulled up her top and pulled at her bra, exposing her right breast. He said, "Let me kiss you." She said she did not want to, and tried to push herself away. While she was trying to free herself he kissed her breast. She tried to push him back and scratched him on the neck. He let go of her. He then said to her, "Why did you leave me with these marks? How can I go back home with those marks?" He sat down on the couch as she put her clothes in order. She thought that that was the end of it but he suddenly grabbed her hand and pulled her towards him and she landed face to face on top of him. He put both hands around her and put his hand on her skin. She slapped him on the face twice with both her hands and he grabbed her hands. She was frightened. He said, "Why did you do that?" to which she replied, "Because I told you many times, I do not want you." He apologized. She told him the reason she came to the shop was because she needed income and wanted to get experience as a hairdresser in Australia and that she did not want to be his girlfriend. She said he again apologized. 23 After the conversation she thought he had understood, and he assured her that it would not happen again. 24 On 7 November 2008 she worked from 9 a.m. to 6 p.m. On that day there was another hairdresser working at the salon but he finished work at 5:30 p.m. At 6pm she went to the staffroom to retrieve her handbag. Mr Al Fahdawi came in and said, "I want to show you something". He came closer to her and removed his jeans and underwear. He grabbed her hand and pulled it towards his penis. She resisted and tried to pull away. He said, "Touch me." She said, "I don't want to and I will put my nails in you." Mr Al Fahdawi let her hand go and she said, "Put your pants on." He said, "Why? Don't you like it? Are you afraid of the dark colour?" He said, "Do you want to see some sex on the computer?" She said "No, I do not want to watch anything. Mr Al Fahdawi then showed her some condoms and lubricant and he said, "I have everything for sex." She said "I'm not interested" and left. 25 In her statement to the police Ms Zenkova said, amongst other things, that on that day Mr Al Fahdawi had been wearing dark blue jeans, T-shirt and bright green underwear. She said "I would not be able to describe his penis. I do remember not seeing any hair." 26 On 18 November 2008 she was in the café at TAFE. Mr Al Fahdawi walked by her and pinched her waist and said, "Hey sexy." He then walked away and there was no further discussion between them. 27 That day she wrote a letter of complaint and handed a copy to the counsellor at TAFE about what had happened at TAFE. In the letter, the original of which was tendered, she referred to Mr Al Fahdawi having 'harassed [her] before at workplace and [she] told him many times that [she was] not interested in any kind of relationships (sic) but work only…' She said that at some time before that she had complained about Mr Al Fahdawi's behaviour at work but had been told that only issues at TAFE could be addressed by TAFE staff. 28 On 19 November 2008 she returned to the salon but could not recall when that had been organized. She avoided Mr Al Fahdawi all day, got her money and left. Mr Al Fahdawi did not tell her never to come back. She said the main reason she went back to the salon on 19 November 2008 was because the friend advised her to see if Mr Al Fahdawi would 'try something' again, to scratch him again and then go to the police [with evidence]. She said it was a 'horrible day' and she would not go into the staffroom at all. Nothing occurred on that date and she never returned. 29 At some time after the incident on 18 November 2008, she spoke the teacher at TAFE. She was told that she could seek counseling. She attended a medical centre at Northmead where she saw Dr Fang and enquired about counseling because she was upset and unable to sleep and was having nightmares and suicidal thoughts. She was prescribed the medication Pristiq, 50 mg per day. 30 A report by Dr Fang dated 27 May 2009 (Exhibit R1) recorded that she had attended on 1 December 2008. She was tearful, and anxious and reported sexual harassment at work about 3 weeks earlier. She reported nightmares and was unable to sleep well and had some suicidal thoughts. She had previously taken herbal medication when in Russia for mild depression. She was prescribed anti-depressant and advised to seek further counselling. She was reviewed on 7 December 2008 and she was somewhat improved but had found the side effects of the medication unacceptable so had stopped after 2 days. She was taking Valerian and was advised to add St John's Wort. When reviewed in January 2009 she was still taking herbal medication and was feeling stable and mentally well. 31 In cross-examination she said there had been no previous diagnosis of depression or anxiety and that Valerian was a common supermarket line used in Russia to relax and unwind. 32 Ms Zenkova said she attended counselling at TAFE for a short time and also spoke with the harassment officer. After she lodged an application for victims' compensation she attended counselling for 20 hours with the clinical psychologist from Victims Services. 33 On 4 December 2008 Ms Zenkova went to the police. She said she did not go to the police earlier because in Russia nothing would be achieved by doing so. A friend convinced her that it was not like that here. 34 With hindsight she thought that Mr Al Fahdawi never intended to offer her a permanent job and had only had her at the salon with a view to engaging in sex. In cross-examination she denied that she was motivated by financial gain in bringing these proceedings. 35 Mr Al Fahdawi participated in a Record of Interview with police on 7 December 2008. There he said that Ms Zenkova had worked for him on a trial basis only. In response to the allegations made by Ms Zenkova, he denied that any such events had occurred. In his evidence, he repeated his denial. 36 He said that on 19 November 2008, he asked Ms Zenkova not to return as he was unhappy with her work and some customers had complained. In cross-examination it was put to him that his lack of workers' compensation insurance suggested that he never intended to employ Ms Zenkova. He said that he did not regard her as one of his "workers" because she was still in training. 37 He was cross-examined about the functionality or otherwise of a surveillance camera at the rear of the salon but we did not find that discussion to be of particular assistance to the matter at hand. 38 He was also cross-examined at length about his Record of Interview in respect of the events of 7 November 2008. In the Record of Interview he said he had 2 pairs of green underwear. As to how Ms Zenkova may have known that he had green underwear he said that, as a hairdresser, it is not unusual to have to bend over, and his underwear may have been apparent while wearing trendy low-cut jeans. 39 He was asked in the Record of Interview whether he had pubic hair around his genitals, to which he answered, "Usually, we do not leave hair". He explained in his evidence that when he had said "we" he meant "I", although he knows that others do as well. He said in his evidence he had little hair over all his body and said he trimmed his pubic hair. As to how Ms Zenkova may have known that he had little or no pubic hair he said that there was a discussion at TAFE and he had said that he never shaves, but uses "a machine". He said he was not specifically discussing his pubic hair but was just talking about underarm and facial hair and they may have discussed the "lower parts of the body" as well. He said he would never have talked about his groin. The conversation did not take place during the course but was at lunchtime or during a break and Ms Zenkova must have heard the conversation. Consideration 40 Whether Ms Zenkova was an employee or was on trial and seeking employment is irrelevant: S22B(1)(b) Act. Did the alleged conduct occur? 41 In this matter there is a fundamental problem: Ms Zenkova has made serious allegations of sexual harassment against Mr Al Fahdawi which he vehemently denies. In Horman v Distribution Group Ltd [2002] FCA 219 Emmett J approved the following statement concerning the acceptance of evidence in cases where there is such a dilemma: "33 Tribunals and Courts of Law are frequently asked to decide which of two versions of a series of facts they accept. It is often a very difficult task particularly where both witnesses are credible. The decisions are made with the benefit of a number of factors. Perhaps the most important is each witnesses' demeanour in the witness box, his or her method of giving the evidence, the way questions are answered in cross-examination, the willingness to acknowledge the possibility of error and changes in recollection due to the passage of time. Other matters that would be looked at include the interest that the witness might have in the outcome of the proceedings and the inherent likeliness or unlikeliness of the evidence when considered with the background of the known facts. Finally, most Tribunals or Courts seek to find some form of corroboration from other evidence of whatever nature. The decision that is made is not always one between believing one witness and not believing another or holding that one witness is telling the truth and the other is lying. More often than not the decision comes down to the preference of one recollection over another. Recollection is notoriously unreliable." 42 Counsel for Mr Al Fahdawi submitted that there were inconsistencies in Ms Zenkova's evidence, especially in relation to whether she had been at the salon on 4 or 6 November 2008 and that this was critical to the reliability of her allegations. We do not agree. We do not consider that inconsistency to detract from her firm evidence about the events which she said had occurred. We note her concession that she was not sure about the date, but accept her evidence that she did have a clear recollection of what had occurred. 43 It was also submitted that had the events occurred as alleged, it was unlikely that Ms Zenkova would not have gone to the police at that time instead of waiting for more than a month after the first alleged incident. In that regard we accept Ms Zenkova's evidence that, based on her experience with Russian police, she did not think any purpose would be served in complaining to the authorities and that it was only after she received advice from a friend some time later in November that she went to the police. Further, we observe that in her written complaint to TAFE on 18 November 2008 about Mr Al Fahdawi she had referred to having been previously harassed in the workplace. 44 Similarly, counsel noted that despite her professed distress, Ms Zenkova nonetheless returned to Mr Al Fahdawi's salon on 4 further occasions after the first alleged event. We accept Ms Zenkova's evidence that she returned because she needed the money, and perhaps naïvely, accepted Mr Al Fahdawi's assurances and apologies. 45 Counsel for Mr Al Fahdawi also invited our attention to Ms Zenkova's previous "depression". There was no medical evidence before us that Ms Zenkova had previously been diagnosed with a psychiatric condition of any kind. That she had previously taken a herbal nutritional supplement available over-the-counter was, in our view, irrelevant. 46 It was also submitted that the status of Mr Al Fahdawi's workers' compensation insurance was irrelevant. We are inclined to agree. We do not know, nor does it matter, whether Mr Al Fahdawi had no intention of ever offering Ms Zenkova a job. We are not prepared to conclude that he was only ever interested in her for sex. 47 It was submitted that Ms Zenkova was motivated by financial gain in making the allegations against Mr Al Fahdawi, as evidenced by her having also brought workers' compensation and victims' compensation proceedings. Ms Zenkova's own evidence was that she needed money, however we do not accept that she should be criticised for exercising her rights. 48 We accept Mr Al Fahdawi's explanation as to how Ms Zenkova may have been able to identify the colour of his underpants. 49 Counsel submitted that the evidence about Mr Al Fahdawi's hair is equivocal in that, in Ms Zenkova's statement she does not specifically refer to his pubic hair. We reject that submission as the inference from what she said is clear in that her description of his hairlessness was juxtaposed with her inability to describe his penis. Counsel also submitted that the Record of Interview indicated nothing of Mr Al Fahdawi's "personal circumstances". In the light of his evidence that he trimmed his pubic hair and his clarification of the Record of Interview that "I do not leave hair", we do not accept that there is no evidence as to his "personal circumstances". While Mr Al Fahdawi said that he knew of others who also "do not leave hair", there was no evidence of any cultural preferences in relation to pubic hair, nor was there any submission in that regard. Furthermore, we find Mr Al Fahdawi's explanation about the discussion at TAFE to be entirely implausible. While there may have been some general discussion in Ms Zenkova's presence as he claimed, this does not adequately explain how Ms Zenkova might have been aware of his "personal circumstances". 50 We find Ms Zenkova to be a witness of truth and accept the conduct of which she has complained, in each instance, occurred. Did the conduct constitute a sexual advance, request for sexual favours, or conduct of a sexual nature in relation to Ms Zenkova? 51 We have no hesitation in finding that the conduct on each occasion amounted to a sexual advance, request for sexual favours, or conduct of a sexual nature in relation to Ms Zenkova. Was the conduct unwelcome? 52 The applicant bears the onus of establishing on the balance of probabilities that the conduct occurred was of a sexual nature and was "unwelcome": Aldridge v Booth [1988] FCA 170. In that case Spender J described 'unwelcome' as advance, request or conduct which was not solicited or invited by the employee, and which the employee regarded the conduct as undesirable or offensive. 53 In Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217 the Full Federal Court in respect of the same provisions in the Sex Discrimination Act 1984 (Cwth) held: But it is not enough that the conduct merely be unwelcome sexual conduct. Unwelcome sexual conduct may be insensitive, even offensive, but it does not necessarily constitute sexual harassment. The word "harass" implies the instillation of fear or the infliction of damage; as is indicated by the definition of the term in the Macquarie Dictionary: "1. to trouble by repeated attacks, incursions, etc., as in war or hostilities; harry; raid. 2. to disturb persistently; torment, as with troubles, cares, etc." 54 Ms Zenkova's responses to Mr Al Fahdawi's conduct as described in her statement and in her evidence clearly showed her lack of acceptance of the conduct, her humiliation and feelings of intimidation. Her evidence also led us to the view that she was afraid, but continued to attend because she needed the money. 55 Her evidence, which we also, accept, was of having firmly conveyed her views to Mr Al Fahdawi. Having regard to all the circumstances, would a reasonable person would have anticipated that Ms Zenkova would be offended, humiliated or intimidated by the conduct? 56 The evidence satisfies us that a reasonable person would have anticipated that Ms Zenkova would be offended, humiliated or intimidated by the conduct. 57 In summary, we are satisfied that each of the events complained of by Ms Zenkova in fact occurred and that each constitutes a sexual advance, request for sexual favours, or conduct of a sexual nature in relation to her. That conduct was unwelcome and, having regard to all the circumstances, a reasonable person would have anticipated that Ms Zenkova would be offended, humiliated or intimidated by that conduct. We therefore find Ms Zenkova's complaint to be substantiated. Remedy 58 At the date when the conduct occurred Section 108(2) of the Act set out the Orders the Tribunal may make: (2) If the Tribunal finds the complaint substantiated in whole or in part, it may do any one or more of the following: (a) …, order the respondent to pay the complainant damages not exceeding $40,000 by way of compensation for any loss or damage suffered by reason of the respondent's conduct, (b) make an order enjoining the respondent from continuing or repeating any conduct rendered unlawful by this Act or the regulations , (c) … order the respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant, (d) order the respondent to publish an apology or a retraction (or both) in respect of the matter the subject of the complaint and, as part of the order, give directions concerning the time, form, extent and manner of publication of the apology or retraction (or both), (e) …, (f) …, (g) decline to take any further action in the matter. 59 As to the appropriate remedy, Ms Zenkova said she just wanted Mr Al Fahdawi to admit what he had done. We do not consider it appropriate for us to 'require' Mr Al Fahdawi to make such an admission, given his continued denial that anything untoward had occurred. For the same reason, we do not think it appropriate for us to 'direct' Mr Al Fahdawi to apologize for his conduct. 60 There was some evidence, which was inappropriate in our view, as to what had transpired in settlement negotiations. We have disregarded that evidence. 61 As to expenses, Ms Zenkova consulted a psychiatrist, Dr Henson twice and was under the care of her GP, Dr Fang. Both Dr Henson and Dr Fang bulk billed. She received free counselling briefly from TAFE and she attended victims' compensation counselling which was also free of charge. She bought some herbal nutritional supplements. Her out of pocket expenses are negligible. 62 Ms Zenkova said the events caused her distress, fear, anxiety, nightmares and continuing depression. There was evidence as to the initial difficulties faced with employment opportunities and feelings of revulsion towards some employers and that this has limited her work opportunities. However there was no evidence that would enable us to quantify any loss which she may have sustained through either inability to work or inability to obtain employment because of her limited work opportunities. 63 There is some difficulty in quantifying the appropriate damages in sexual harassment matters. We were cautious about descending into the minutiae of other matters so as to place a 'value' on one manner of sexual harassment as compared to another: Bishop v Takla & Ors [2004] FMCA 74 (25 February 2004). 64 Ms Zenkova's psychiatrist, Dr Henson, wrote of Ms Zenkova having experienced fear, anxiety, depression, anger and that she felt that the incident and assault had adversely affected her psychologically. Importantly in our view, he wrote, "She feels it has changed her life". On examination he did not find her to be suffering from psychiatric or mental illness but he found her to have had depression and anxiety in the 18 months preceding his report, 'as a result of the assault'. He observed that she had had moderate depression and had felt suicidal. He described her as having anxiety accompanied by fear. He considered she was likely to need further assessment, continued counselling, supportive psychotherapy and assistance in overcoming her difficulties. 65 There is no requirement that unwelcome sexual conduct must occur more than once in order to amount to 'sexual harassment': per Wilcox J in Hall v A & A Sheiban Pty Ltd. We have found there to be several events, each of which amounts to conduct falling within the definition of sexual harassment. Furthermore we have found that on every occasion Ms Zenkova worked at Mr Al Fahdawi's salon, with the exception of the first and last attendances, she was subject to sexual harassment. On the last occasion, according to her evidence, which we accept, she studiously avoided Mr Al Fahdawi for the whole day so as to minimize the risk of a further encounter. This matter is not one involving an isolated occurrence: the conduct included kissing, intimate touching, rough handling and a direct invitation to have sex. The cumulative effect of all of the acts was, in our view, serious. The damages should reflect the evidence as to the effect of the conduct on Ms Zenkova. We have come to the view that damages of $20,000.00 would constitute a reasonable remedy given Ms Zenkova's evidence and the evidence of Dr Henson. 66 We heard evidence from Mr Al Fahdawi as to his straitened financial circumstances. This was irrelevant in our view in considering the effect of his conduct on the applicant. Orders: 1. The applicant's complaint of sexual harassment is substantiated. 2. The respondent is to pay the applicant damages in the sum of $20,000. 3. The respondent is to pay the applicant's costs as agreed or if not agreed as assessed under the Legal Profession Act 2004. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.